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Schadenfreude – The different paths to EU membership for an independent Scotland

The debate over Scottish independence and the country’s continued membership of the European Union is rapidly descending into a bun fight of the highest order. Our secret columnist in Brussels Schadenfreude examines the road ahead for an independent Scotland

It is time to move beyond the rhetoric and ask – just how could an independent Scotland become part of the European Union? The easy way would be for the European Council to decide, on a submission by the Scottish Government, that without prejudice to Article 49 of the Treaty of Lisbon means Scotland – when independent – will be a member of the EU and will continue to be subject to those treaty provisions, which presently apply to the United Kingdom. This decision shall be entered as a protocol to the Treaty of Lisbon. One problem, it is not at all likely. For this route cuts too many corners. And it requires a new treaty to amend the Treaty of Lisbon

How about another path – the application way? Scotland – when independent – applies under Art 49. The European Council decides that the applicant is a candidate. The European Commission then ‘screens’ the application and reports that membership should be approved. The European Council agrees. Council lawyers draft a membership treaty, which is subject to approval by all member states. It is the orthodox path but it takes time and, in the interval, Scotland is not a member.

There is always the quiet way. Following a ‘yes’ vote in the independence referendum and in accordance with the ‘successor state’ doctrine, the European Council agrees that in the Treaty of Lisbon Scotland will be added to all mention of the UK when Scotland becomes independent. This does not count as formal treaty amendment but only as a change in terminology. But it is too slick and everything depends on whether all the member states agree to Scottish membership. At present, this is not at all a given. Does that clear things up for you? No, I thought not.

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