By Daniel Furby and Phillip Souta
A newly independent Scotland would not be guaranteed automatic entry into the EU following a vote for independence according to a report released last week by BNE. It was covered in the Times (£), the Daily Express, the Scotsman, and the Herald.
Tory leader Ruth Davidson said the report “destroys the SNP’s case for automatic accession into the EU”. A spokesman for the SNP dismissed the report’s claims as “wrong” and Alyn Smith MEP (SNP) branded it a “fantasy”.
Mr Smith claimed that “Scotland will be an EU Member State on day one of independence” and advanced four propositions to evidence this. A look at these propositions shows they do not hold water.
First, Mr Smith claims that Scotland’s membership would be negotiated as a deal, “done by the Council, using qualified majority voting.” This is wrong. There is no legal basis in the EU’s founding treaties – before or after Lisbon – for the Council itself to say that the EU should have 28 instead of 27 members either on the basis of unanimity or QMV.
The reason is that no such power has been conferred on the EU by its members (see Articles 4(1) and 5(1) of the Treaty of European Union). It is therefore a decision to be taken by the Member States and as such, Scotland would have to negotiate, sign and ratify an accession treaty under Article 49 TEU, as every new member has had to do until now. That treaty would have to be agreed unanimously and ratified by all the other EU members. The last example is the Treaty on Accession of Croatia to the EU (Council Doc. 14404/11, 7 November 2011), not yet in force pending its ratification by the 28.
Secondly, he claimed that after Lisbon, “the treaties are now set up to accommodate enlargement without renegotiation.” This is also incorrect. Scotland would have to conclude an accession treaty under Article 49 TEU to modify the Treaties in order to allow its accession.
Even if the scope of modifications would be narrower in the case of Scotland, the Accession Treaty would nevertheless have to modify a number of provisions of the current EU Treaties, to begin with, the list of Member States given in Article 52 TEU. Other provisions would also have to be modified – see the Croatian example where the Treaty provisions were modified in Part II of the Act of Accession, a number of which would also be pertinent in the case of Scotland.
If Scotland wished to retain the UK’s opt-outs and derogations for example, amendments would have be written into the relevant protocols annexed to TEU and the Treaty on the Functioning of the European Union (Protocols 15, 19, 20, 21 and 30) and written into Scotland’s accession treaty. EU Treaties cannot be modified without a modifying treaty being unanimously agreed and ratified by all Member States, either under Article 48 (amendments) or Article 49 (accession).
Thirdly, Mr Smith claimed that, “the report also appears to fail to understand that MEP numbers for each State are now determined by formula rather than negotiation.” This is also incorrect; it is true that the Lisbon Treaty changed the system of how MEP allocations are decided to “avoid the traditional political horse-trading between Member States”, but the final say still remains with the European Council which decides the matter by unanimity.
In reality there is no self-standing precise “formula” in the Treaty. Rather, there is a cap on the number of MEPs at 751, the most a member state can have is set at 96 and the minimum is six – each members’ number of MEPs is then set according to the principle known as “degressive proportionality.”
This is set out in Article 14(2) of the TEU and has the effect that members with smaller populations get proportionally more seats relative to the size of their populations than larger ones – So Germany has 92 MEPS and not 120, and Malta has 6 and not three quarters of one. On this basis, the Decision establishing the precise composition of the European Parliament is adopted by unanimity by the European Council on the initiative of the Parliament and with its assent. The current decision would have to be modified according to this procedure (see Article 14(2) TEU).
Finally, Mr Smith states that “weighted voting [in the Council] will disappear in November 2014.” This is wrong. According to the Lisbon Treaty (protocol 36 on Transitional Provisions, Article 3 (2-3)), the present system of voting can still be used until 31 March 2017 on any issue governed by QMV, if a member of the Council so requests it (there is a transition period from November 2014 to March 2017).
Mr Smith may be right that “Scotland will be an EU Member State on day one of independence” but it would by no means be automatic and that the terms of membership would have to be negotiated. BNE’s report is not an attempt to influence the independence debate in one direction or another, but rather to shed light on an important part of it.