In the wake of yesterday’s Statement to the Scottish Parliament by Scotland’s Deputy First Minister, Nicola Sturgeon MSP, responding to the Barroso intervention which suggested that an independent Scotland would automatically leave the EU and would have to apply for admission as a new Member State, a number of legal questions arise.
The first issue is whether, in the period before Scotland formally leaves the British Union, the EU and the Scottish government can lawfully enter into any negotiations regarding the terms upon which an independent Scotland might be recognised as a Member State of the European Union. The answer to this legal question depends ultimately on whether the Court of Justice of the European Union (“CJEU”) would consider Scotland after a positive vote in favour of independence but before it left the British Union, to already be a “European State” for the purposes of Article 49 of the Treaty on European Union (“TEU”). To predict how the CJEU might determine that question requires some understanding of that court’s approach to textual interpretation, particularly Treaty provisions.
The second question which arises is what the obligations which the Treaty requires a new Member State of the EU to sign up to are, and in particular, whether as Ms Sturgeon suggests, Scotland can remain outside the Schengen area mandating a Europe without internal frontiers. The paradoxical result of Scotland joining Schengen would be a requirement to introduce border controls and passport relation to EU countries outside Schengen, which is to say the (rest of) the UK and Ireland.
1. Who can apply?
Under Article 49 of the Treaty on European Union (“TEU”):
“any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union.”
The values listed in Art 2 TEU include:
“respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities … values [which] are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice and solidarity and equality between men and women prevail.”
As to whether the EU can enter into negotiation for membership only with an actually independent State rather a State in nuce or in embryo, it all depends on what (the CJEU thinks) is meant by the term “European State”. I think that that concept is broad enough to include a State which is inevitably going to become independent in accord with the constitutional arrangements of the Member State of which it already forms part.
The counter-arguments to this would rely on CJEU cases in which the court has held that regional authorities within Member States are not regarded as having standing to take cases before the court defending the general interests of the populations within their regions. See, for example, Case T-37/04 Azores v. Council  ECR II-2153 at paras 53. 55:
“[T]he general interest that a region, as the body competent for economic, social or environmental matters in its territory, may have in obtaining an outcome conducive to the prosperity of that territory cannot, of itself, be sufficient for that region to be regarded as concerned within the meaning of the fourth paragraph of Art.230 EC. It is clear from the case law that, under the system established by the Treaties, the Member States—and not regional authorities or associations, whether public or private—have the right to defend the general interest in their territories
It follows from Case C-452/98 Netherlands Antilles v Council  ECR I-8973, that the fact that a regional authority is entitled to specific protection under Community law is not sufficient to give it standing to bring proceedings for the purposes of the fourth paragraph of Art.230 EC. In the case which gave rise to that judgment, the Court of Justice rejected the applicants’ arguments to the effect that the action was admissible because they were expressly mentioned in the Treaty and accordingly constituted a restricted group and, by analogy with the position of the European Parliament, should have the right to bring an action where the purpose of that action is to protect the prerogatives granted to them by the Treaty (at  & ). First, the Court of Justice held that the applicants’ arguments did not enable the action to be declared admissible on the basis of the second and third paragraphs of Art.230 EC.”
But strictly these cases are about autonomous regions subordinate to Member States (rather than emerging States) so the approach set out in this line of case law can be distinguished.
2. The purposive approach to the interpretation of the EU Treaties
It will be clear to any lawyer trained in any of the legal systems of the United Kingdom that the CJEU does not approach legal texts in the same way as common law judges. The Court of Justice describes its task of interpreting the law as one of uncovering and furthering the purpose of the particular provision. In performing this task, the Court of Justice does not consider itself to be bound by the precise wording of Treaty provisions, or of secondary legislation. The wording of any provision has to be read in context, including its preamble, albeit that the preamble to a EU act has of itself no binding legal force. The context, which includes a consideration of the overall spirit and scheme of the foundation Treaties, will reveal the purpose of the provision. The wording then has to be re-read in such a way as to ensure the achievement of its purpose. This approach to the legislative text is known as “teleological interpretation”.
In some ways this is akin to the common law purposive approach to statutory interpretation, or the ‘mischief rule’. However, it differs from those techniques in that the Court of Justice sees teleological reasoning as the primary paradigm, rather than, as in the canons of common law statutory interpretation, a method which is resorted to only where there is ambiguity or lack of clarity in the authoritative text.
Although it was the foundation Treaties which originally gave rise to the EU legal order, the Articles of these Treaties are themselves interpreted in the light of what is required of a specifically legal order. Thus, where the Treaties appear to the Court of Justice to contain contradictions or gaps, the Court of Justice, as creator and guardian of this new legal order, has felt justified in removing the contradictions and filling in the gaps, even if this results in ignoring or adding to the original wording of the Treaty. As the then Advocate-General (subsequently Judge) Mancini stated in his Opinion in Case 294/83 Parti Ecologiste ‘Les Verts’ v European Parliament  1339 at 1350:
“[T]he obligation to observe the law takes precedence over the strict terms of the written law. Whenever required in the interests of judicial protection, the Court is prepared to correct or complete rules which limit its powers in the name of the principle which defines its mission.”
In a similar vein, T. Koopmans, formerly a judge of the Court of Justice, has observed (in “The Theory of Interpretation and the Court of Justice”, in D. O’Keefe and A. Bavasso (eds.), Judicial Review in the European Union Law: Volume 1 of Liber Amicorum in honour of Lord Slynn of Hadley (The Hague, Kluwer, 2000), ch 4 at 54):
“The obligation to follow the applicable texts seems less compelling to the Court when the simple fact of applying these texts would counteract the protection of a right considered as fundamental. In such a case, even a Treaty text cannot always form an obstacle to a judicial strategy aimed at upholding fundamental rights. To that degree, the value-oriented approach prevails.
Thus, in performing its task of ‘interpretation’, the Court of Justice has, in a variety of contexts, effectively inserted new provisions into the Treaties. The series of cases relating to the involvement of the European Parliament in the EU legislative and judicial processes is a prime example. With no support in the original EC Treaty wording, the Court of Justice has found:
– that the European Parliament had a right to intervene in cases before the CJEU: Case 139/79 Maizena v Commission  ECR 3393;
– that the European Parliament had locus standi to raise actions for failure to act under Article 175 of the EC Treaty (now, as amended, Article 265 TFEU): Case 13/83 Parliament v Council (Transport Policy)  ECR 3333;
– that the Court of Justice could review the legality of the activities of the Parliament under Article 173 of the EC Treaty (now, after similar ex post facto amendment, Article 263 TFEU): Case 294/83 Les Verts v European Parliament  ECR 1339 and Case 34/86 Council v Parliament(Budget)  ECR 2155; and
– that the European Parliament was competent to bring actions against other EU institutions under Article 173 of the EC Treaty (subsequently after amendment Article 263 TFEU) in order to defend its own powers and privileges: Case 70/88 Parliament v Commission (Chernobyl)  ECR 2041. See also Case C-295/90 European Parliament v Council (Students Rights of Residence)  ECR I-4193.
In effect, the Court of Justice has re-written the Treaties as regards the position of the European Parliament. And The Member States subsequently agreed to an amendment of the terms of Articles 173 and 175 of the then EC Treaty at the 1993 IGC at Maastricht, to bring the wording of these Treaty provisions into line with the Court of Justice’s case law.
As well as adding to the foundation Treaties, the Court of Justice has felt able to contradict the plain wording of Treaty Articles in pursuit of its own perception of the proper goals of the EU. For example, the preliminary reference provision, Article 267 TFEU (formerly Article 177 of the EC Treaty), plainly contemplates questions as to the validity of acts of the institutions of the EU being raised before and ruled upon by national courts. National courts, other than those of final instance, have the option (but not the obligation) of making a reference to the Court of Justice where they consider that a decision by the Court of Justice is necessary for them to give judgment. Earlier versions of this provision in the draft EC Treaty specifically stated that it was for the Court of Justice alone to decide questions of interpretation or validity of Community acts. This limitation was not, however, carried over into the final version of the Treaty. Notwithstanding the terms of the now Article 267 TFEU, the Court of Justice held in Firma Foto-Frost that while national courts might confirm the validity of EU acts, they had no jurisdiction to declare acts of EU institutions to be invalid: Case 314/85 Firma Foto-Frost v Hauptzollamt Itzehoe  ECR 4199. Only the Court of Justice itself could make that decision. To have found otherwise, in accordance with the actual wording of what is now Article 267 TFEU, would, said the Court of Justice, have prejudiced the uniform application of EU law throughout the Member States, since EU acts could become, at least temporarily, valid in some States but invalid in others.
Lastly, and perhaps most radically, the Court of Justice has suggested that the independence and strength of the EU legal system is such that certain provisions of the Treaty might be unalterable and entrenched against any revision or amendment by the Member States. In its Opinion 1/91 Re the Draft Treaty on a European Economic Area  ECR 6079 the Court of Justice stated:
Article 238 of the EEC Treaty [subsequently Article 310 EC and now Article 217 TFEU] does not provide any basis for setting up a system of courts which conflicts with Article 164 of the EEC Treaty [subsequently Article 220 EC and now Article 19(1) TEU] and, more generally, with the very foundations of Community law. For the same reasons, an amendment of Article 238 [of the EC Treaty] in the way indicated by the Commission could not cure the incompatibility with Community law of the system of courts to be set up by the agreement.
The result of the Court of Justice’s jurisprudence is, as Profressor Jürgen Schwarze has put it (in The Role of the Court of Justice in the Interpretation of Uniform Law among the Member States of the European Communities (1988) at 11) that:
the Member States, although originally the creators of the Communities, are no longer the independent masters of the Treaties but are bound by them.
For lawyers in practice the primary significance of the Court of Justice’s approach to interpretation is that the sort of arguments that would appeal to a national court in a particular case are not necessarily the same as those that would appeal to the Court of Justice, and vice versa. In particular, the fact that the Court of Justice is frequently prepared to ignore the literal meaning of a provision in favour of an interpretation which furthers its own view of the guiding objectives of the foundation Treaties, broadens considerably the scope for legal argument about provisions of EU law.
3. The application process for a candidate member State
Article 49 TEU continues:
“The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members.”
Further, Article 49 TEU states that:
“The conditions of eligibility agreed upon by the European Council shall be taken into account.”
Before being allowed to join the EU, the then Member States stipulated in June 1993 that a candidate European State had to enjoy a liberal democratic system of government, together with its corresponding freedoms and institutions, and respect for the rule of law (the ‘Copenhagen criteria’ The European Council in Copenhagen concluded in June 1993 as follows:
‘Membership requires that candidate country has achieved stability of institutions guaranteeing democracy, the Rule of Law, Human Rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate’s ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union.’
Article 49 concludes:
The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.
Thus, under the terms of the TEU, admissions of a new State into the Union is made conditional upon the agreement of each existing Member State as well as approval by the European Parliament.
As to what the candidates for admission have to sign up is the body of established EU law (the acquis communautaire). But Nicola Sturgeon’s suggestion that Scotland could opt-out of Schengen hits against the terms of Article 7 of Protocol 19 to the European Treaties which states:
“For the purposes of the negotiations for the admission of new Member States into the European Union, the Schengen acquis and further measures taken by the institutions within its scope shall be regarded as an acquis which must be accepted in full by all States candidates for admission.”
But as I have stated before there is no EU precedent for the case of an independent Scotland which has emerged from the United Kingdom as a result of a constitutional and consensual process (rather than any form of revolution or UDI) from within an existing Member State in which all the nationals of the new State were already EU citizens and arguably would remain EU citizens after secession/independence regardless of whether the new State is admitted as a member.
The fact of continuing EU citizenship of the formerly British national residents of an independent Scotland seems to me to be a trump card in any negotiation for the territory of Scotland remaining within the EU, albeit now represented as a distinct Member State by an independent Scottish Government.