Brussels repeats that EU Treaties would no longer apply in a seceded region but opens the door for nuances

Barcelona (ACN).- A Spokesperson for the European Commission was asked on Tuesday about the report issued on Monday by the Catalan Government's Advisory Council for National Transition, which stated that EU Treaties did not include any provision regarding the secession of a Member State and therefore the final decision would be a political one, following economic interests. They stated that the most likely scenario would be setting up transition measures guaranteeing the continuity of EU Law, Schengen and the Euro, while Catalonia's definitive EU membership was being negotiated. The European Commission - which acknowledged it only knew the report from the press – repeated that it will only give an analysis "upon the request of a Member State" and "on the basis of a detailed scenario". However, the Commission Spokesperson, the Spaniard Alejandro Ulzurrun, also stated that "if a part territory of a Member State secedes", "EU Treaties no longer apply from the day of its independence" as it becomes "a third country". The Commission did not state the procedure, nor whether transition measures could guarantee the continuity of EU agreements.

Also on Tuesday, the Catalan Government's Spokesperson and Minister for the Presidency, Francesc Homs, responded to the European Commission Spokesperson's "legitimate comments" and emphasised that the Commission will only issue "an official answer" on the basis of a precise scenario. He stated that Ulzurrun's words are not the Commission's definitive decision on Catalonia and he argued that such a decision would come after political and economic negotiations. On top of this, he said he was surprised that the Commission states on the one hand it does not want to interfere in internal matters of Member States and issue official opinions on this matter, but on the other hand it emphasises the general principle of being considered a third country, which clearly interferes in the debate. Homs was critical of the Commission’s refusal to provide further analyses regarding Catalonia's and Scotland's cases, which could shed light on the possible scenarios. In fact, the Commission’s lack of clarity proves that the matter is complex and not a black and white one, according to Homs. The fear of losing EU membership has become the main argument for those opposing independence.

The Chairman of European Liberals backs Catalonia to stay within the EU

On the same day, the Chairman of the Alliance of European Liberals (ALDE), Graham Watson, who is Member of the European Parliament for Southwest-England, was interviewed by the Catalan public radio station 'Catalunya Radio'. Watson stated that a territory that is already part of the EU cannot be kicked out, in his opinion. Watson stated that it is likely that in the very first moment, Catalonia would be out of the EU but that it would re-join the Union very soon. Meanwhile, transition measures could be in place. In addition, the UK MEP said he was "disappointed" by the Spanish Government's "lack of understanding" toward "Catalonia's singularity", vetoing the organisation of a referendum. He urged the Spanish Prime Minister to find a way to allow Catalans to hold a self-determination vote, even if it means "reforming the Constitution.

The Catalan Government's Advisory Council Report

A Spokesperson for the European Commission was asked on Tuesday about the report issued on Monday by the Catalan Government's Advisory Council for National Transition, which stated that an independent Catalonia would not be automatically excluded from the EU and that its EU status will have to be negotiated. The report was drafted by several university chairs in Constitutional Law, Economics and Political Science. They emphasise that EU Treaties did not include any provision regarding the secession of a Member State, and therefore Treaties have to be interpreted, weighting different Articles as well as the political and economic interests. In this sense, they analysed four different scenarios, including total exclusion, and they reached the conclusion that the most likely scenario would be setting up transition measures guaranteeing the continuity of EU Law, Schengen and the Euro, while the definitive EU membership was being negotiated. The Catalan report said that EU Treaties  foresaw neither an "automatic expulsion", nor "an automatic admission".

The European Commission repeated its mantra

On Tuesday, in the midst of the Ukraine crisis, the European Commission was only asked a single question during the daily Midday briefing. This lonely question was about Catalonia’s independence. A Spanish journalist asked the EC Spokesperson Alejandro Ulzurrun – also from Spain – about the Catalan Government's Advisory Council's report. Ulzurrun acknowledged that he only knew the report from the press. At the beginning he stated that he had "nothing to comment". Then, the journalist asked him "to repeat" the Commission's opinion "on the independence of a part of a Member State". Ulzurrun answered that the Commission's opinion "is well known" and that they have been repeating it for "the last months and even years" and "it hasn't changed" so they "don't have anything new to say in that respect". Then, the Spanish journalist asked the European Commission for a third time to recall its official stance "for the sake of clarity" since “there is a report saying that Catalonia would stay within the EU”. Then the EC Spokesperson stated that firstly the Commission would not consider constitutional arrangements of Member States and that secondly they will only give an analysis "upon the request of a Member State" and "on the basis of a detailed scenario". However, he also added a third part to his answer. He stated that "if a part territory of a Member State secedes", "EU Treaties no longer apply from the day of its independence as "it becomes a third country".

This is a general principle, but the Commission never stated that it would apply to Scotland or Catalonia, nor what would happen with the UK or Spain. In fact, many Spanish politicians from the governing People's Party have been repeating that if Catalonia seceded, Spain would no longer exist as such. Therefore, it is not clear what would happen with Spain. In addition, the Commission has never talked about excluding Catalonia and has never commented on whether transition measures could be negotiated. On top of this, when its President, Jose Manuel Durao Barroso, stated that Scotland would be kicked out from the EU, the Commission's Spokesperson Service corrected his words the next day.

It is not clear that Catalan citizens can be expelled; nor that Catalonia can be automatically kicked out

Many EU officials, Members of the European Parliament and experts on EU affairs have emphasised that EU Treaties are not clear on what to do in the event of Catalonia's secession and they insist it would be absurd to kick out a territory that already forms part of the Union, together with 7.5 million EU citizens. However, Durao Barroso stated months ago that EU citizenship is "accessory", going against the last two decades of EU integration. According to him, this is because people are EU citizens because they are nationals from a Member State, and therefore if Catalans are no longer part of Spain, they would no longer be EU citizens. However, the whole idea of citizenship is that it cannot be taken away and it comes with fundamental rights associated.

Therefore, many legal experts insist that Catalans would retain their Spanish nationality even if Catalonia became independent, because they would have to explicitly give it up in order to lose it. This would be even clearer if Spain did not recognise an independent Catalonia, since a Catalan state would not exist for the Spanish Government and therefore the Catalan territory and citizens would continue to be under its rule, in Madrid's perspective. If Madrid recognised an independent Catalonia, the Spanish Government might not accept dual nationality, but even in this case Catalans would still have to choose to give up their Spanish nationality. Therefore, since many Catalans would not give up their Spanish nationality, many of them would still be EU citizens.

Several EU Treaty Articles back Catalonia's continuity within the EU

In addition, experts question the idea that those who gave away their Spanish nationality for a Catalan one would lose their EU citizenship. EU institutions are obliged by the Treaties "to promote peace, its values and the well-being of its peoples" (Article 3) Furthermore, "the Union shall offer its citizens an area of freedom, security and justice without internal frontiers in which the free movement of persons is ensured", which would have to be guaranteed for Spanish nationals living in Catalonia. Additionally, Article 2 states that "pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail" in the EU and therefore EU institutions need to act according to those principles, which are "human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities". On top of this, the EU "shall work for the sustainable development of Europe" and "shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced" (Article 3).

Therefore since the EU's primary mission is to promote democracy, peace, prosperity and the well-being of its citizens, it seems unreasonable that 7.5 million Catalans wouldbe expelled from the EU because they have peacefully and democratically decided to split from Spain. In addition, following the EU values and considering the will to stay within the EU expressed by Catalans as well as the economic and social damage caused by expulsion, the measure would ago against the EU's obligation "to offer its citizens an area of freedom [...] without internal frontiers in which the free movement of persons is ensured" and again gurantee "the well being of its citizens". In addition, the EU is bound to act under "the principle of proportionality" (Article 5) and to work for "stability"; the expulsion would cause an economic storm in Catalonia, Spain and the entire EU.

Therefore it does not seem that an automatic exclusion of Catalonia and 7.5 million Catalans is in line with those objectives. On top of this, the voluntary withdrawal of a Member State is included in the Treaties (Article 50), but the process comes with a negotiation process that will explicitly decide how the country will relate to the EU in the future on the basis of "loyal cooperation". This Article explicitly applies to a Member State and not to a part of it, but it is the Article that comes closest to ruling on the expulsion of a territory from the Union. In addition, when Greenland quit the EU, there were long negotiations about how to do it and at the time Article 50 was not existing. Therefore if it were to be used for the Catalan case, a negotiation should be carried out to decide on the future relationship with the EU, which can sign bilateral agreements in order to keep the free circulation of people, goods, services and capital, and the Euro as Catalonia's currency, among many other aspects.