Guillaume Van der Loo and Merijn Chamon are doctoral candidates at the European Institute of Ghent University in Belgium.
"A new state, if it wants to join the European Union, has to apply to become a member of the European Union like any state," replied European Commission President José Manuel Barroso, in a BBC 4 radio interview on 12 September, on the question whether or not an independent Scotland would automatically remain in the EU.
This was bad news for the Scottish National Party (SNP) which proclaims that, under international law, Scotland would retain its EU membership after seceding from the UK.
A clarification of this matter is urgently needed not only for the Scottish case, where the SNP government intends to hold a referendum on Scottish independence in the autumn of 2014, but also for other regions in the EU where regional political parties pursue the independence and EU membership of their region.
Clear examples of this are Flanders in Belgium, where the New Flemish Alliance (N-VA) aims to secure EU membership for an independent Flanders, and Catalonia, where hundred thousands of people demonstrated on 11 September for independence.
Whereas the SNP claims that Scotland could automatically remain in the EU-club after its independence, the N-VA has stated that Belgium will gradually evaporate, leaving only a European macro-level and a Flemish micro-level.
According the N-VA, competences for which the advantages of size are greater than the costs of heterogeneity must be exercised by the EU, while competences where heterogeneity costs are too great must be exercised by Flanders.
This may look nice on paper but the reality is far more complicated. First, there are no examples in history of ‘evaporated states’. Generally, states cease to exist following an active deed: a declaration of independence, an international treaty, a civil war, etc.
To conceive the future of Flanders as the result of the evaporation of Belgium reveals the lack of a clear and realistic vision on the position of this region in the EU after its hypothetical independence.
In Scotland, the SNP government even refuses to make public whether or not it has received any legal advice on this matter, leading the opposition to conclude that the advice runs counter to the SNP’s public position.
Granted, drafting such a clear and realistic scenario is not an easy exercise. The EU Treaties only contain provisions allowing for the accession to the EU or, since the Lisbon Treaty, for the withdrawal from the EU.
On the issue of whether regions in the EU can automatically become EU member states after their independence from the ‘mother state’, the Treaties are silent.
Moreover, according to the case-law of the European Court of Justice (ECJ), regional entities, no matter how autonomous they may be under national public law, do not have special status under EU law.
Therefore, subnational entities, such as Flanders or Scotland, only belong to the EU by virtue of the membership of their ‘mother states’.
This implies that, in the hypothetical situation where such a region would become independent and wants to remain in the EU, it would have to make an official application to the Council and go through the entire accession procedure of Article 49 TEU like any other country applying for EU membership.
This was confirmed by the European Commission in 2006 in an answer on a parliamentary question. Moreover, it must be noted that there are no useful precedents.
The only case of an entity escaping the arduous accession procedure was the de facto EU (then EC) accession of the German Democratic Republic (East Germany) after being absorbed by the Federal Democratic Republic (West Germany) in 1990.
An analogous case would then be that Flanders or Scotland would declare their independence from one EU member state (Belgium and the UK respectively) only to be absorbed by another EU member state.
The key challenge an accession procedure would pose for such a region would not be the democratic, economic or administrative criteria (i.e. the Copenhagen Criteria) but the political reality. This is so because an EU accession requires unanimity among all the EU member states.
In the case all the member states would support EU accession of the region, it could join the EU rather swiftly. However, it is unlikely that this scenario would occur. First, the unanimity requirement implies that the member state from which the region seceded (Belgium or the UK) would be able to block the region’s (Flanders or Scotland) EU accession (supposing that Belgium and the UK would remain international subjects and EU member states).
Secondly, it is obvious that other members states which have their own regions with aspirations for independence would not be eager to recognise such a new state and allow it into the EU.
In addition, if such a region would secede from its member state and would not automatically be able to join (or to remain in) the EU, several other complex issues would occur.
For example, would such a new state be able to keep the Euro as its national currency (or lose its opt-out in the case of Scotland)? Would its national citizens lose their European citizenship since only citizens of EU member states are EU citizens? Are the many international agreements concluded exclusively by the EU (and not by the member states) still applicable to the new state? Would such a new state profit from the benefits of the customs union?
All this shows that it is too simplistic to propose that a region could simply remain in the EU after seceding from its EU member state and that the ‘evaporation theory’ of the N-VA cannot adequately grasp all the political and legal problems which such a scenario would entail.
This is remarkable because this matter is often the core-business of these regionalist parties. In this, we have deliberately left the question on whether or not independence of these regions is feasible or desirable to others.
In any case, it seems that the vague and incomplete EU discourse of regionalist parties is the result of strategic choice so as not to open a Pandora’s box: speech is silver, silence is golden.