French study backs EU membership of independent Catalonia and Scotland

Barcelona (ACN).- The former Chief of Staff of the French Minister for European Affairs and current member of the Conseil d’État, Yves Gounin, argues that the independence of Catalonia, Scotland or Flanders would not cause their immediate expulsion from the European Union but neither could it result in their automatic inclusion. Gounin states that a political negotiation should be undertaken; it would be “the most realistic” approach, he says. Therefore, according to this study published in the journal Politique Étrangère, “the most reasonable” would be to negotiate independence and the EU membership at the same time; therefore the implementation of EU Treaties would not be interrupted at any moment. Gounin underlines that there are legal and political arguments to defend that an independent Catalonia or Scotland would not be expelled from the EU. He argues that, according to European jurisdiction, the EU is also a union of citizens. He also discusses the founding principles of the EU (such as freedom and democracy), the obligation to negotiate a Member State’s withdrawal from the EU and the “interior enlargement” concept.

In this study, the French expert in EU affairs analyses the succession of states and their effect on international treaties. He assumes that Spain and the United Kingdom would be the “continuing states”, while Catalonia and Scotland would respectively be the “successor states”. However, neither Spain nor the United Kingdom nor Belgium have signed the 1978 Vienna Convention on Succession of States in respect of Treaties. Gounin concludes that, while Catalonia and Scotland would have to be recognised by the United Nations, he also believes that, regarding the EU, the issue has to be resolved following the EU’s own rules. However, there are no precedents of such case within the EU, since the withdrawal of Greenland from the Union, which continued to be part of Denmark, is not applicable. The former Chief of Staff of the French Minister for the European Union highlights that EU Treaties do not explicitly deal with the issue of secession within a Member State and the membership status of such part. Therefore, the matter is open to interpretation.

Gounin admits there are arguments to defend the necessity to reapply for membership but he also states they are neither “realistic” nor follow “common sense”. He points out that “Brussels” is traditionally not in favour of “state implosions” and that the European Commission has publicly stated that “if a part of a territory of a Member State is no longer part of this State, the [EU] treaties would no longer be applicable”. However, Gounin states that this legal argument is not absolute, since there are other legal and political arguments to be taken into account.

In this vein, Gounin cites the report drafted by David Edward, who used to be the British Judge within the Court of Justice of the European Union between 1992 and 2004. Edward was rejecting Scotland’s automatic expulsion from the EU and was advising for negotiating independence and EU membership at the same time. Those negotiations would be held between the referendum day and the day independence would be effective, having more than a year to amend EU Treaties accordingly. The former Chief of Staff of the French Minister for European Affairs is supporting such a way out for both Catalonia and Scotland.

“A good will negotiation would be in everybody’s interest”

The French expert firmly rejects the idea of placing Catalonia and Scotland in the accession queue. “Common sense prohibits assimilating them to Moldavia, Montenegro or Turkey regarding their right to (re-)accessing the Union”. Gounin argues that is “not realistic” to imagine the return of border controls, the cancellation of EU fundamental rights for citizens or abandoning the Euro. In this vein, he backs the concept of “interior enlargement”, although he acknowledged that this concept is not defined in the treaties. However, this idea makes a clear distinction between states that are not part of the EU and therefore might not have their legislation in line with the EU and territories that are currently part of the Union, whose citizens are EU citizens and their laws follow European legislation.

In addition, Gouning highlights the legal argument resulting from article 50 of the EU Treaty, which deals with the withdrawal of a Member State from the Union. The Treaties clearly say that the withdrawal is not automatic and has to be negotiated, specifically regarding the relationship of the State with the EU. Therefore, automatically excluding Catalonia or Scotland, without a negotiation, would be quite problematic regarding Article 50.

“A democratic regression”

A third argument presented by the former Chief of Staff of France’s European Affairs Department refers to “the founding principles of the Union: freedom, democracy, equality and rule of law”. Gounin emphasises that it would be “a paradox for the EU to deny the people of Scotland, Catalonia or Flanders the right to self-determination or, to be more precise, by linking this right to the automatic expulsion from the Union, [which] decreases its effectiveness to zero”. On top of this, he points out that by doing so, the EU would in fact be interfering with the Member States’ interior policy, something it wants to avoid. By “vetoing” Scotland or Catalonia’s continuity within the EU, Brussels would completely interfere with the self-determination debate.

Finally, “the strongest argument” to support the continuity of Catalonia and Scotland within the EU is that referring to the link between the Union and its citizens. The Court of Justice of the European Union stated that the EU is “a new” international law entity where “subjects are not only the States but also their people”. This makes the EU a completely different international organisation, since there is a European citizenry. Gounin points out that this dimension has been strengthened over time by numerous treaties and charters. “Even though the European citizenship is added to the national” one and “it does not replace it”, the French expert argues that Catalan and Scottish citizens could not have their EU rights taken away without seriously “harming” the case-law issued by the Court of Justice of the European Union and therefore damaging the EU’s legal and democratic principles.