Catalan Government's Advisory Council: an independent Catalonia would not be excluded from the EU

Barcelona (ACN).- An independent Catalonia would benefit from transition measures that would guarantee the continuity of European Union agreements, including staying within the Schengen Area and the Euro Zone. This is the most likely scenario in the event of independence from Spain, according to the Catalan Government's Advisory Council for the National Transition (CATN), which is a body formed of independent and prestigious academics. The CATN is issuing a series of reports on different aspects related to self-determination and a hypothetical independent Catalan state. A few months ago it suggested that an independent Catalonia would work closely with Spain as an ally. Now, this expert group emphasises that there is "no legal basis" for stating that Catalonia would be automatically expelled from the EU the moment it became independent or to affirm that it would automatically join the Union as a new Member State. There is no provision in the Treaties and there are no precedents. Therefore the report concludes that Catalonia's EU membership will be decided in a negotiation process where political and economic interests will be at play.

On Monday, the Catalan Government's Advisory Council for the National Transition (CATN) presented its 6^th report from an ongoing series of analyses on different aspects related to Catalonia's self-determination process and its hypothetical independence from Spain. The CATN's mission is to provide thorough analyses on different legal and reasonable scenarios, for instance on possible ways to call for a self-determination vote, how to build the tax authority of an independent Catalan state in order to be ready from day 1, or what would happen with the EU membership of an independent Catalonia. The CATN provides expert advice to the Catalan Government and gives information to society in the midst of the public debate about Catalonia's political future. It is chaired by Carles Viver i Pi-Sunyer, Chair of Constitutional Law at the Universitat Pompeu Fabra (UPF) and former member of Spain's Constitutional Court. It is composed of 14 members, most of them holding chairs in Law, Political Science, Economics and Sociology at different Catalan universities, such the UB, UAB, UPF and ESADE, or at Princenton University in the case of Carles Boix.

Catalonia's EU Membership to be resolved by negotiation according to political and economic interests

In 'Les vies d'integració de Catalunya a la Unió Europea' ('The integration ways of Catalonia within the European Union') the CATN analyses whether an independent Catalonia would be in or out of the EU. The report emphasises the will of a majority of Catalan society to remain within the EU, but it also reflects on the uncertainties of such membership. The report concludes that there are no definitive legal arguments for an automatic expulsion or the opposite, for an automatic continuity. This is to say there are "no legal bases" to sustain the argument that an independent Catalonia would be automatically excluded from the EU and all EU agreements would cease to apply. In the same way, there are "no legal bases" to support the idea that an independent Catalonia would be automatically be part of the EU as a new Member State. The CATN emphasises that the Treaties do not say what to do in such a scenario and that there are no precedents. Therefore, they conclude that Treaties will have to be interpreted and this could be done either in more open or more restrictive ways, following a negotiation process that will be based on political and economic interests.

In fact, the Catalan Executive has always considered EU membership of an independent Catalonia a political issue, to be decided in talks that would take place during the independence process. However, the Spanish Government has used EU membership as its main argument to persuade Catalans to oppose independence, spreading fear and doubts.

The Spanish Government's main argument is that Catalonia would be kicked out of the EU

The Spanish Government has been insisting that an independent Catalonia would automatically be kicked out of the EU. The Spanish Prime Minister stated last week before Parliament that an independent Catalonia "would be the most similar thing to Robinson Crusoe's island", being isolated "from the EU, the Euro, the United Nations and all the international treaties". Instead of launching a seduction campaign to convince Catalans to remain within Spain, the Spanish Government's strategy is based on a frontal opposition to independence, interpreting the current Constitution in a restrictive way and from a Spanish nationalist point of view. In addition, its second line of action is to scare Catalans by saying that if they vote for independence they would "roam across space", being "excluded from the European Union for the centuries of the centuries", as the Spanish Foreign Affairs Minister, José Manuel García-Margallo, stated a month ago.

In fact, Madrid has been pressuring the EU institutions to state that an independent Catalonia would be automatically out of the Union. However, the European Commission has stated no such thing, at least not with the clarity and strength Madrid wanted. EU authorities such as Commissioners, official Spokespersons and even the institution's President, José Manuel Durao Barroso, have stated that "as a general principle, if a part of a Member State were to secede, EU Treaties would no longer applicable" and "it would become a third country", which "would have to re-apply for Membership". However, at the same time, they have stressed that this is "a general principle" and that they would have to analyse "specific cases" on the basis of "detailed scenarios" in order to provide a definitive answer on Catalonia's or Scotland's cases. The "general principle" to consider a part that secedes as "a third country" is based on an answer given by the Prodi Commission in 2004 to a question from a Member of the European Parliament regarding Algeria’s hypothetical EU Membership after becoming independent from France.

The European Commission has been sending contradictory messages

Now, when Barroso stated in an interview in the UK that an independent Scotland would be out of the EU, the day after the European Commission's Spokesperson Service quickly corrected its President with a reminder that this was not the institution's official stance on Scotland's independence and its EU membership. In fact, the European Commission has repeated on many occasions that it will only assess what would happen with Catalonia and Scotland after the specific request from a Member State Government providing "a detailed scenario", and such a request has never been filed, either by London or by Madrid. Therefore, this lack of specific, clear and definitive answers from Brussels confirms that things are not crystal clear regarding the EU membership of an independent Catalonia or Scotland. In fact, before the pressures from the Spanish Government, Viviane Reding, Commissioner for Justice, Fundamental Rights and Citizenship, had stated in an interview with the ‘Diario de Sevilla’ in 2012 that according to EU Treaties an independent Catalonia would not be automatically expelled from the Union. Following the complaints from Madrid, a few days later she corrected her words. Joaquin Almunia, the Spanish Vice President of the European Commission, did a similar thing in October 2012, when he said that “it would be dishonest [...] to give a strict answer” as to whether a separated part of a Member State would still be part of the EU. The European Commissioner for Competition explained back then that “the question is not a black and white one” and “it has many nuances”.

Neither EU Membership nor exclusion are automatic

In the report the CATN says that the EU's decision is not automatic in any sense, since EU Treaties do not clearly and explicitly state what to do in such a case and there are no precedents. The CATN states that there are legal arguments in defence of four different scenarios, and therefore deciding which one to choose will be the result of how EU legislation is being interpreted, following negotiations based on political and economic interests. The advisory council emphasises that the EU has been particularly flexible interpreting the legislation on many occasions, such as during the ratification of the Maastricht Treaty or the EU Constitution. In addition, the EU has traditionally backed whichever formula was enlarging the Union and fostering European integration, rather than the one that was reducing its size and going against integration and building barriers to free trade.

Continuing within Schengen and the Euro without interruption the most likely scenario

The CATN lists a series of arguments for four different scenarios regarding the EU membership of an independent Catalonia: firstly, staying within the EU as a new Member State from day 1; secondly, going through a transition period that would guarantee that EU law and agreements are still applicable but not automatically becoming a new Member State; thirdly, being excluded from the EU but being recognised as a candidate to join the Union; and lastly, being expelled for many years from the Union without any foreseeable prospect of joining the list of Member State candidates. The CATN analyses the probability of each scenario and states that the most likely one is the second, which it calls "ad hoc membership". In this scenario, an independent Catalonia would continue within the Schengen Area and the Euro Zone, and all EU legislation and agreements would continue to be in place without any interruption while Catalonia's definitive status as an official EU Member State was being negotiated and approved, a process that could take years. Therefore, in practical terms, in this scenario citizens, tourists and companies would not see any difference, but Catalonia would not be officially and automatically an EU Member State from day 1 and would have to go through a recognition process. The report bases its conclusions on EU legislation and arguments linked to political and economic interests.

A total exclusion would harm the entire EU on the economic and political levels

The report rules out the total exclusion scenario, since it would economically harm not only Catalonia but also Spain and the whole EU. The exclusion would harm both the EU institutions – since Catalonia has been a net contributor to the EU budget for decades – and the economy – since Catalonia's GDP is the size of Portugal's or Finland's (with huge banks and multinationals) and many European companies operate from Catalonia and have billions invested there. This would create an economic instability which could seriously harm the entire European economy. The report also considers that the third scenario, being excluded from the EU but at the same time joining the list of candidates to become a Member State, is not very likely either, since the economic damage would be quite similar to the fourth case, as EU law and agreements would be interrupted for months or years.

In addition, on the political side, excluding 7.5 million Catalans from EU citizenship because they peacefully and democratically voted to become independent would harm the EU as a project based on the democratic principle, spreading peace and stability. It would be the EU deciding to put in borders again and creating instability in the core of Western Europe, right next to France. On top of this, if Spain did not recognise an independent Catalonia as a state, EU law would continue to be applicable in Catalonia since EU law would continue to be applicable in Spain. In addition, Spanish citizenship could not be taken away, so Catalans would continue to be Spanish citizens and therefore EU citizens. And if Spain was recognising Catalonia’s independence, then there would be little reasons to punish Catalonia with an exclusion from the EU that will ruin most of the possibilities of strengthening stability and a fruitful and loyal cooperation between the two countries.

The advisory council also analyses what would happen if there is no agreement with the Spanish Government for a negotiated independence. In this scenario, if Catalonia can prove it has been trying to find a negotiated solution to the self-determination demands but Spain has constantly been blocking such an agreement and has refused to even talk about it, the EU institutions could not ignore this fact. In this case, they should take into account the democratic will peacefully expressed by a majority of the Catalan population through several electoral processes and analyse the behaviour of both sides of the conflict "under the prism of the democracy, loyal cooperation, good faith and proportionality principles".

Alternatives to EU Membership: EFTA, the EEA or bilateral agreements

The report also analyses possible alternatives for Catalonia if it was excluded from the EU, although the CATN insists that this is not the most likely scenario. Catalonia could join the European Free Trade Association (EFTA), which is formed by Iceland, Liechtenstein, Norway and Switzerland. To join this organisation, EFTA Member State governments have to unanimously accept the new country, but considering Catalonia's social and economic development, and its democratic tradition, this possibility has a few chances to be successful, although nothing is guaranteed. Furthermore, all EFTA states but Switzerland are part of the European Economic Area (EEA), which forms a single market with EU countries, without borders and custom duties. However, being part of the EEA has to be ratified by all the participating countries, including Spain, although there are alternative formulas, which are not detailed in the report.

In addition, the report also states that EU institutions can approve bilateral agreements with third countries. If the agreement is on exclusively EU powers, such as international trade, individual Member States cannot veto them. However, certain agreements require a unanimous approval. In such a scenario, the CATN advocates first reaching association agreements on the matters that cannot be vetoed by a Member State and then expanding such agreements at a later stage. Finally the advisory council also considers the threats of being excluded from the international order and the United Nations. It gives very little credibility to such threats but points out that the EU institutions could start the recognition process. In addition, in order to apply to become a member of EFTA or to negotiate EU Membership or the transition agreements, the CATN highlights that this could be done in the months before becoming independent.