Before the referendums, the EU must understand that Scotland and Catalonia shall not be moved by their intransigence and they’ll never keep us down. Whatever equestrian faeces is being heaped upon them by the Spanish and the UK governments, they must tacitly make way for seamless adhesion after they vote for independence, or risk disintegrating.
Given the current depth of dysfunction and crisis of democratic legitimacy within the EU, one hopes they will choose the former. However, if the bureaucratic sclerosis persists and EC Commissioner Manuel Barroso follows through on his implicit threat to expel Scotland and Catalonia for exercising their right to self-determination, the EU will begin its demise.
Mr. Barosso has stated that any response could only come about after a vote and the European Commission is presented by a member state with a ‘precise scenario’.
Obviously, that makes EU membership an issue in both the Scottish and Catalonian independence debate, because their lack of clarity and implicit threat of expulsion are used as scare stores to maintain the unsustainable status quo. While they would rather stay in, the Catalan government has begun planning for life outside the EU, because their independence is more important.
When exactly is the EU planning to expel Scotland and Catalonia? Is it upon a ‘yes’ vote that all treaties cease to apply, or upon full independence? Under EU treaties, the only way a state can leave is through a democratic procedure such as a referendum, followed by a 2-year period of negotiation during which the new status of the EU is negotiated, as the UK will likely do in 2017.
However, Scots and Catalonians are already EU citizens in addition to their UK and Spanish citizenship. Article 8 of the Maastricht Treaty confers EU citizenship on “every person holding the nationality of a member state”. Article 9 of the Treaty on European Union holds that “citizenship of the union shall be additional to and not replace national citizenship.”
EU case law also prohibits citizens from being denied EU-conferred rights. In the Ruiz Zambrano case, the European Court of Justice of the held that national measures cannot deprive EU citizens of the “genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the union.”
Case law also holds that EU citizenship status cannot be revoked. The Rudy Grzelczyk case holds that “The Court of Justice has ruled that the status of citizen of the European Union is destined to be the fundamental status of nationals of all the Member States, conferring on them, in the fields covered by Community law, equality under the law, irrespective of their nationality”
So if Scots and Catalans are EU citizens in addition to being UK and Spanish citizens, and this status cannot be revoked regardless of nationality, by what mechanism could the EU deprive over 12 million EU nationals of their rights and citizenship? Exactly: they can’t because it’s illegal.
This still leaves the question of how Scotland and Catalonia can be assured of maintaining seamless membership in the EU after a ‘yes’ vote, given the deliberate lack of clarity.
After a yes vote, they will continue to be part of a member state and therefore of the EU until full independence. As negotiations proceed, regardless of the level of difficulty, both to-be independent states will have the opportunity to recast the system of treaties bequeathed to them as citizens of the signatory states.
They can cast aside archaic and irrelevant treaties, and include and ratify the EU treaties in their new corpus of treaties, because they already conform to all them. They can also assure that their new constitutions are written in conformity with EU conventions. Then, they present their ratified treaties to the European Commission and EU parliament for ratification by majority vote, et puis voila.
Given that the EU is at present incapable of giving a clear answer on how membership can seamlessly continue, Scotland and Catalonia can jointly present this ‘precise scenario’ of how to assure exactly this after they vote ‘yes’. They can and formally ask the EC if there is anything in the EU treaties or case law which prevents this type of ‘inlargement’. If there is, what is it, and what is their mechanism for violating EU treaties and ECJ case law for EU citizenship?
Confirmation by the EC that there is no impediment to this scenario would also prevent them from being used as a political football, thereby increasing their legitimacy. What the EU must understand is that neither Scots nor Catalans will be dissuaded by their intransigence.
This method of continued accession would be the simplest, least disruptive, and most democratic. It cannot be by unanimous consent of the member states, because that would prevent any one country from blocking entry out of spite. This may be the only viable ‘precise scenario’ because the alternative is the deprivation of millions of EU citizens of their rights and citizenship and dismembering of the EU.
I’m sure the EU doesn’t want that, thus must not stand in the way of Scottish and Catalan independence and continued EU membership.