Rajoy threatens Scotland with exclusion from the EU and irritates Edinburgh

RajoyTwoFingerSalutationThe Spanish Prime Minister Mariano Rajoy sent a message to Scotland and Catalonia on Wednesday evening, stating that if they were to become independent they would be excluded from the European Union and would have to re-apply for membership. The statement sounded like a threat, particularly when he added that “this is not simple”, since “it requires becoming an [independent] state, re-applying for membership and unanimity” from the 28 current Member States, suggesting a possible veto from Madrid. Rajoy made this statement next to the French President François Hollande, who was on a state visit to Spain. However, Hollande did not explicitly support Rajoy: he stated that this was an “internal matter” for Spain and refused to make further comments. A few hours later, the Scottish Government replied that Rajoy “has not read” its White Paper on independence, which clearly states than an independent Scotland would be an EU Member State from Day 1. Edinburgh added that they totally reject the idea of being kicked out of the EU.

The European Commission talked about having to re-apply for membership

Catalan News Agency (CNA)

In the last few months there has been a debate about Catalonia’s or Scotland’s EU Membership in the event of an effective secession from Spain and the UK. The European Commission has been sending contradictory messages on the issue. On the one hand, it officially states that it will not make any comment on the issue since it is an “internal” debate within Spain and the UK. However, on the other hand, it has also stated that “as a general principle”, when a part of a Member State secedes, it becomes “a third state”. It added that this “third state” is not an EU Member State and therefore it should re-apply for membership. This argument is based on an answer from 2004 given by the Prodi Commission to Algeria’s case, since a few voices were arguing that since Algeria had been part of France, it could automatically be an EU Member State.

A flexible interpretation of EU Law would not exclude Scotland and Catalonia

However, the European Commission is also stating that it refuses to make specific assessments on Scotland or Catalonia. It says that it will only analyse the legal consequences of independence regarding EU Membership on the basis of a precise scenario and if a Member State (i.e. Spain or the UK) explicitely ask for it. Therefore, Brussels indirectly opens the door to a more flexile interpretation of the EU legislation. In fact, many EU law experts argue for a flexible interpretation of the Treaties, since they do not explicitely foresee the expulsion of a Member State’s seceded part. This view is also shared by the Scottish Government. They suggest that temporary measures could be adopted in order to have Scotland or Catalonia benefiting from all the EU protocols and agreements, while their new status as EU Member State in their own right is negotiated. This process could be developed at the same time as independence negotiations, since independence would not happen from one day to the next. Therefore, Scotland or Catalonia would not be kicked out from the EU at any point.

Rajoy sends a threat and Hollande remains silent

After a Franco-Spanish summit held in Madrid on Wednesday, in the evening Mariano Rajoy and François Hollande gave a shared press conference. Answering a question from a journalist, Rajoy read an already-written answer in which he warned against “divisions and all-by-yourself adventures”, “where the starting point might seem clear but the ending place is unknown”. However, he said he “clearly knows” that “a region obtaining independence” would be “out of the European Union”. Rajoy pointed out that, after the presentation of Scotland’s White Paper on Independence, a Spokesperson from the European Commission stated that “Treaties are only applicable in the Member States that have ratified them”. In addition, the Spanish PM added that the Commission Spokesperson also said that “if a part secedes it would become a third country and Treaties are no longer applicable”.

Rajoy admitted he “did not know the contents” of the Scottish White Paper, but he highlighted that “the consequences of such decisions should be presented to Scots in a realistic way”. “Citizens have the right to be informed”, he added. Furthermore he stated that he “respects” the decision of the British Government to allow Scotland’s independence referendum to be held. However, regarding EU membership, Rajoy stated that Scotland would “have to re-apply”, which “is not simple”. “It requires becoming an [independent] state, re-applying for membership and unanimity” of the 28 current Member State governments, he said. “This is the law, and the law will be implemented”, Rajoy concluded, as “otherwise the EU would not be serious” nor it could an “actor” in a globalised world”.

Despite Rajoy’s direct references to the European Union, to unanimity among the 28 Member States, EU Treaties and the United Kingdom Government, the President of the French Republic, François Hollande refused to comment on Rajoy’s words and thereby to directly back him. Hollande merely stated that “Catalonia is a region of Spain and this is an internal matter for Spain”. “I will not make any further comment on this issue”, he concluded.

The Scottish Government replies Rajoy

The Scottish Government totally rejects the idea that a “yes” in the independence referendum to be held on the 18th September 2014 would represent Scotland’s expulsion from the European Union. A Spokesperson of the Scottish Executive replied to Rajoy that he “has not read” the White Paper, which envisages keeping Scotland within the EU through an amendment of the Treaties. This transitional and temporary measure would be added in the 18 months between the referendum and the day Scotland became independent, being negotiated while still part of the UK and therefore the EU. This formula would allow EU treaties to still be applicable in an independent Scotland, which would continue to benefit from the EU agreements from Day 1. He pointed out that this formula “is realistic” and has been validated by the British Government’s Legal Advisor. In addition, the Scottish Spokesperson also highlighted that the independence process is based on an agreement with the UK Government, which has committed to respecting the result of the referendum.

He also argued that the formula is totally in line with “Article 48 of the EU Treaty” and it would allow Scotland to “be part of the EU from its independence day”. Furthermore, the Scottish Spokesperson also argued that kicking Scotland out of the EU “makes no sense” since “it is an integral part” of it. “There is nothing in the EU Treaties about the expulsion of an existing territory or withdrawing EU rights to the citizens from this territory”, he concluded.

Besides, Thomas Lundberg, an expert from the University of Glasgow, warns that a Spanish “veto” to Scotland’s EU membership “would be seen as a hostile action, not only in Scotland but in the whole of the United Kingdom”. According to him, if Scotland becomes independent, “it would be the result of a constitutional and democratic process” based on the agreement of both London and Edinburgh’s Governments. Therefore, if Madrid were to put obstacles in the way, it would be seen as “an offence to” both the British and Scottish Governments and people.

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