[Jure Vidmar is a Leverhulme Early Career Fellow in the Faculty of Law and Research Fellow of St John’s College, Oxford. Some arguments made in this post are further elaborated on in this article.]
The Treaty on European Union (TEU) now gives member states an explicit right to exit the EU and provides for a mechanism that makes this right effective. However, the TEU does not directly regulate the future relationship between the EU and a territory which is seceding from a member state. If Scotland votes for independence, this will be the first case of secession from an EU member state. Thus, neither a direct treaty provision nor a useful precedent exist that would regulate the Scottish scenario. Would Scotland either join or stay in the EU at the moment of independence? If not, what would happen with the free movement rights of EU citizens residing in Scotland, and of those future Scottish citizens who are currently residing in other EU member states?
Professors Boyle and Crawford convincingly demonstrate that rump UK (rUK) would continue UK’s international personality, while Scotland would become a new state, with certain problems that this status brings. Among these problems are accession to treaties and membership of international organizations. As Richard Hoyle shows, it is perhaps arguable that automatic accession applies where human rights treaties are concerned. Even that is not uncontested, but in any case, there is no automatic accession to treaties establishing international organizations or other institutionalized supra-state formations. An independent Scotland would thus need to join the UN anew. The same scenario applies for its EU membership. If Scotland exits the UK, it prima facie also exits the EU. This conclusion is not unqualified, however.
Should Scotland vote for independence, a period of negotiations will follow between the governments in Edinburgh and London. In this period, the exact modalities of secession will need to be determined. It is possible and perhaps even politically likely that negotiations with Brussels would also be initiated in this transitional phase, so that Scotland could enter the EU at the moment of independence. It might not be necessary for Scotland to follow Article 49 TEU which regulates admission of new members. Instead, the TEU could be amended by an ordinary revision procedure of Article 48. Professor De Witte convincingly explains that Article 49 is concerned with states that are outside of the EU at the moment of application. Scotland, however, would not (yet) be a state if it asks for admission in the transitional period after a ‘yes’ vote, and it would still be an EU territory at that time. It is thus questionable whether Article 49 should be followed in this case at all. Another argument in support of the route via Article 48 is that the TEU would need to be amended in any case. Without Scotland, rUK would be a smaller state, and without relevant amendments, rUK would be overrepresented in the EU institutions. An elegant solution could be an amendment which would admit Scotland, make institutional provisions for its membership, and acknowledge the new size of rUK.
A shortcut via Article 48 seems to be feasible, but does not solve Scotland’s major problem which is otherwise also looming large in Article 49: all member states would need to ratify such an amendment of the TEU. It is not possible to exclude that the ratification process could fail in some member states with their own secessionist problems (e.g. Spain). In other words, the applicable legal framework does not provide for any automaticity and certainty on Scotland’s path to EU membership. Regardless of which route is followed, EU membership will be subject to political negotiations and approval of all member states.
The possibility of Scotland’s implicit EU exit opens the problem of rights stemming from EU citizenship. Would they be lost entirely? This could have serious consequences for Scots currently residing in other EU member states, as well as for EU citizens currently residing in Scotland. Would they need to acquire visas and work permits or leave their homes? It has been suggested that EU citizenship is so fundamental in the European legal order that Scots cannot simply lose the rights stemming from it. Two variations of this argument have been brought forward. The first one is that citizens of an independent Scotland retain EU citizenship regardless of what happens with Scotland’s EU membership and regardless of whether they are also entitled to keep UK nationality. This is problematic because EU citizenship is not an independent concept, it is derived from citizenship of a member state. Taking this problem into account, an even more radical proposal suggests that in order to ensure that EU citizenship rights would not be lost, Scotland automatically stays in the EU. Professor Tierney has rightly called this argument: “simply not tenable”. The idea of a fundamental nature of EU citizenship comes from the CJEU case law dealing with situations that crucially differ from Scotland in law and fact. The Scottish situation is indeed unprecedented. If an independent Scotland does not become an EU member state, EU citizenship simply could not be derived from Scottish nationality. In other words, EU citizenship would be lost. Yet, even this conclusion requires some qualifications.
A similar problem, albeit not in the EU context, has been addressed by the European Court of Human Rights (ECtHR) in the 2012 case of Kuric v. Slovenia. The case was concerned with residency rights of those aliens who had acquired the right of residency prior to Slovenia’s independence, but afterwards no longer possessed the qualifying nationality to be entitled for residency. The ECtHR reasoned: “[A]n alien lawfully residing in a country may wish to continue living in that country without necessarily acquiring its citizenship.”Following the logic in Kuric, once you have legally established permanent residency, you keep the right of residence, even if the legal status of either your home or your host state changes and, as a result of this change, your new citizenship status alone would no longer give you a right to residence. What matters is that you had the right at the moment of the change of the territorial status. It is notable that the Court established that non-citizen residents enjoy this guarantee under Article 8 ECHR (the right to private and family life) in their own right; it does not depend on, e.g., a family relationship with a citizen of the host state. The ECtHR’s reasoning in Kuric v. Slovenia is broad enough that it should also cover the Scottish situation. It means that even if Scotland leaves the EU on becoming independent, nationals of EU member states will be allowed to retain residency in Scotland and Scottish nationals will be allowed to retain residency in EU member states. However, this would no longer be a benefit of EU citizenship. Rather, the ECHR would extend protection to previously-exercised free movement rights stemming from EU citizenship. This effect of the ECHR would only freeze the already-acquired rights, it would not give the right to start free movement anew.
By becoming independent, Scotland also exits the EU, unless negotiated otherwise. Even EU citizenship will be lost if negotiations on EU membership fail and Scotland does not join the EU at the moment of independence. In this case, the ECHR would extend its protection and the affected individuals would not lose their already-acquired residency rights.