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  By David Ferguson
 
“The Commission has no intention of beginning to speculate about different scenarios relating to the upcoming referendum in Scotland and their possible implications.”
 
These are not the words of that chap who writes for the Telegraph – Mr Alan Cochrane. They are not the words of some BBC Scotland hack with a degree in Sociology of Batman and Underwater Bagpiping from the University of Ecclefechan.

This is a direct quote from an email that was sent to me on 25th March 2014 by Mr Jens Nymand Christensen, who is the Director of the Secretariat-General of the European Commission. They are preceded by these words:

“Thank you for your letter of 25 February addressed to Mr Romero Requena, Director General of the Legal Service in the European Commission, to which he has asked me to answer…”

So they were written by the Director of the Secretariat-General, in accordance with the instructions of the Director General of the Legal Service. That would seem to me to be a pretty definitive statement on the legal position with regard to Scotland’s future status within the EU, should we vote for independence.

‘No intention to speculate about different scenarios… and their possible implications.’ Doesn’t sound much like what Jose Manuel Barroso said in his much-referenced BBC interview back in 2012:

“Now what I said, and it is our doctrine and it is clear since 2004 in legal terms, if one part of a country – I am not referring now to any specific one – wants to become an independent state, of course as an independent state it has to apply to the European membership according to the rules… For European Union purposes, from a legal point of view, it (Scotland) is certainly a new state. If a country becomes independent it is a new state and has to negotiate with the EU.”

Nor does it sound much like numerous similar pronouncements that have been made by people such as Barosso, Van Rompuy, and Rajoy in the intervening period, and trumpeted all over the BBC and the British mainstream media.

I can make no claim to being a current expert on EU Law.  But I did study the subject for my law degree at Honours level under the late Professor J.D.B. Mitchell at the Europa Institute of Edinburgh University.  At the time, he was the country’s leading authority on the subject.  I’ve forgotten a lot since then.  In fact I’ve probably forgotten more than Telegraph scriveners and BBC Scotland hacks have ever learned.  But I haven’t forgotten everything.

One of the basic principles of European Law since the founding of the organisation has been legal certainty.  Any authority on European Law will confirm this.  European Union law must be certain, in that it is clear and precise, and its legal implications foreseeable.  The adoption of laws which will have legal effect in the European Union must have a proper legal basis – apart from anything else they must exist, in some clear and written form, in which they can be read, and understood, and if necessary, challenged.

There are a number of formal sources of EU Law.  Broadly these are Treaty Articles, Regulations, Directives, Opinions and Recommendations issued by the Council and the Commission, Opinions offered by the Advocates General to the Court, and Rulings of the Court itself.

No article within any of the existing treaties addresses the future status of the new units should a current member state divide into smaller independent units.  There has never been any directive or regulation issued on the subject, nor has any advocate general ever issued an opinion on the matter. 

The Court has never made any ruling on the matter.  As it stands, then – and particularly in the context of the principle of legal certainty – it is quite clear that no EU law currently exists applying to Scotland’s status within the EU, should it re-establish its status as an independent country.

Crucially, if there was any such law, it would be open to challenge by any citizen of the European Union.  If it contravened any fundamental principle of European Law, it could be struck out.

There are also specific provisions and formal procedures defining how new laws can be created in the European Union.  Decrees and diktats by EU officials, however august, are not part of that procedure.  Nor are back of a fag packet claims made in BBC interviews.

I have children in their twenties who were born in Scotland and have spent most of their lives in Europe.  Two are working in France, and one is working in Austria.  If the situation is as Mr Barosso has claimed, then they could all lose all their rights to live and work in these countries, overnight, as a result of a referendum in which they will have no vote.

There are three issues here – one of precedent, one of principle, and one of practicality.

As I have already pointed out, there is no legal precedent – or any other existing EU law – dealing with the Scottish independence scenario.

In terms of principle, it is indeed worth bearing in mind a few ‘principles’.

One is that in terms of currently delineated borders, Scotland is the oldest country in the world.  Another is that the right to self-determination is protected in Article 2 of the Universal Declaration of Human Rights.  Another is that the EU is supposed to be – and actively promotes itself as – a bastion of democracy and freedom.  That is what gives it the authority to pronounce on matters such as the current events in Ukraine.

If the EU were to respond to a decision by the people of the oldest country in the world, to exercise a right that is guaranteed under article 2 of the Universal Declaration of Human Rights, by booting the said country out of the EU, what then?  They would look like the biggest fools and hypocrites on the planet.

More importantly, such a response would not have a hope of surviving a legal challenge, as it would contravene every principle by which the EU supposedly abides.

Then there is the issue of practicality.  Currently, there are thousands of Scots, like my children, exercising their right to live and work in other countries of the EU.  There are tens of thousands of EU citizens currently exercising their right to live and work in Scotland. 

There are two possible scenarios here.

The first follows in accordance with Barroso’s claim.  Scotland votes for independence.  Scotland is thrown out of the EU. The result is legal, administrative, and economic chaos – overnight tens of thousands of people lose fundamental rights that accrue to them as citizens of the EU.

The second is that following a vote for independence, Scotland renegotiates its relationship with the EU as a newly independent country from within the EU.  Following the negotiation, the people vote on the proposals.  If the vote is ‘yes’, all is plain sailing.  If the vote is ‘no’, then an orderly withdrawal can be organised.

Under this second scenario there is no chaos, and there are no losers – apart from Mr Cochrane and his sad little band of cringemongers, who will be deprived of the opportunity to dance around the room saying “Ha ha! That’ll teach ’em!”

What conceivable reason could the EU have for deliberately going out of its way to create legal, administrative and economic chaos, when there is a perfectly viable alternative that creates none?  Again, supposing it did so, such a perverse decision would have no chance of surviving a legal challenge.

Sick and tired of the onslaught of propaganda from the UK media on the subject of an independent Scotland and the EU, I finally decided to do something.  I lodged formal complaints with the Council and the Commission concerning the interventions of Barroso, Van Rompuy, and Rajoy, and one with the EU Ombudsman.  My complaints featured many of the arguments outlined above.  I also highlighted the fact that these interventions represent an intolerable interference by EU officials in the internal affairs of a member state.

The Council treated my formal complaint with utter disdain, responding with a condescending and insulting rote letter which did not even bother to acknowledge that I had submitted a formal complaint, but explained to me that Mr Van Rompuy is a very busy man, and reassured me that my comments had been drawn to his attention.

The email quoted at the start of this article forms part of the Commission’s response.  I consider it to be a major step forward in establishing clarity.

I will answer the Commission’s email as follows:

“Thank you for your email. Your response, sent at the request of the Director General of Legal Service in the European Commission, bears out my own understanding of the legal situation – that there is currently no EU law dealing with the situation that would prevail should Scotland vote for independence, because no organ with the authority to create any such law has ever done so.

It is, however, completely at odds with the statements made by Mr Barroso when speaking as President of the Commission in his BBC interview in December 2012, in which he claimed that there was a “legal doctrine” which was “clear”, under which an independent Scotland would no longer be part of the EU and would have to reapply as a new country.

It is completely at odds with a number of similar statements made subsequently by Mr Barroso and others, and widely publicised in the UK media.

I have submitted a formal complaint to the EU Ombudsman concerning the interventions of Mr Barroso and others on this matter.  I will be maintaining that complaint.”

Comments  

 
#
X_Sticks
2014-03-27 19:36

As with the currency union nonsense and propaganda emanating from Westminster, the EU position following a Yes vote in the referendum will be forced by necessity and common sense.

There is no doubt in my mind that any obstacles to Scotland’s swift entry to the EU will be overcome as an act of expediency.

It is unlikely that Scotland will exit the EU at all. Any problems will be dealt with within the time frame of the referendum and independence day.

The same expediency will apply to the currency union. The only sensible outcome is a currency union, the irony of that is that it will not necessarily be in Scotland’s best interest, but will undoubtedly be in the best interests of the rUK.
 
 
#
iccjock06
2014-03-27 20:46

How do I support this? To whom do I write? Please let me know and I will get to it.
 
 
#
davidferguson1
2014-03-28 07:28

You could write to the BBC and suggest that since they are so obsessed with the subject of the EU and an independent Scotland, they might wish to highlight this story!
 

 
#
HistoryPHD
2014-03-27 21:03

I admire your efforts here; I have always seen this as a mainly political situation, but there will still need to be a legal mechanism whatever happens. It is a shame there can’t be clarity on that before the referendum.

Of course the EC Commission will provide a legal opinion if it is asked for one, but it must be asked by a member state. It is trite that the UK will not do this.

So far EU states have kept a healthy distance from commenting on the referendum, not surprising when the UK is awkward to deal with at the best of times. A member state however could ask the Commission to clarify the legal position on behalf of its citizens who were resident in Scotland. This is the area I think a breakthrough could come from. EU citizens living in Scotland who want to help the referendum cause should be lobbying their own governments on this issue. They have a duty to protect the EU rights of their citizens. Let Austria et all seek clarity for their citizens.
 
 
#
Auld Rock
2014-03-27 21:03

David Ferguson makes some very useful points. But is there not a possible similarity with Germany. When the wall came down the FDR and the GDR agreed to re-unite. In their respective Parliaments they voted themselves out of existence and voted to form the new united Germany. Now as I remember the New Germany remained a member of EU, no fuss no bother – just pragmatic common sense.

I believe that this is what will happen for Scotland. As for rUK who are also a new country then that is up to them and maybe they just wont need Nigel Farrage, LOL!!!!

Auld Rock
 
 
#
ananinginaneana
2014-03-27 22:26

Great article and one I would wish to share except for one problem; the claim that Scotland is the oldest country in the world. It is one of the oldest but by no means the oldest. The claim is tendentious and would be disputed by many. Claims such as these allow detractors to latch onto that one part of the article and use it to rubbish the whole article.

Scotland – 843
Serbia – 768
Bulgaria – 681
San Marino – 301

If we look to Asia then we can go back even further; Japan’s National Foundation Day is 11 February 660BC.
 
 
#
davidferguson1
2014-03-28 00:02

I did specify “in terms of currently delineated borders”.

Scotland’s current borders were established in 1482 when England annexed Berwick, and they’ve remained unchanged since. That is certainly not the case with Serbia, Bulgaria, or Japan, all of which have been through numerous iterations over the centuries.

If San Marino’s current borders were established before 1482 then Scotland would be the second oldest country in terms of currently delineated borders. There certainly aren’t any other countries whose current borders were delineated before 1482.
 

 
#
Breeks
2014-03-27 22:44

Europe cannot make a recommendation. There is no law or precedent for the situation which would arise for the UK splitting while inside the EU. They will have to make a new law, from scratch, with no precedent.

It is inconceivable that any such new law could be introduced which either Scotland or rUK/England couldn’t live with. That law, and the bizarre situation it would create, would serve absolutely no purpose.

This new legislation will require to facilitate ongoing membership, or else facilitate the expulsion of a state which does not want to be expelled from an organisation which doesn’t want to expel it.

When Germany was unified, a whole country from the Communist block was admitted to the EU with all due and appropriate expediency. By comparison, absorbing an independent Scotland into the European fold will barely cause a ripple.
 
 
#
jjmac
2014-03-27 23:19

I want Independence for Scotland
I do not want to be in the EEC
I do not want to be in NATO
I do not want the Monarchy.
We are wide and varied.
Vote YES
 
 
#
Marga B
2014-03-27 23:19

Haven’t reunifications started up in Cyprus recently?

How many new European citizens will be joining?

“The European Union also supports the efforts to reach an agreement between the two parties on a package of confidence-building measures which can help to create momentum towards a settlement to the benefit of Cypriot people. The European Union stands ready to look creatively at how to contribute to this objective in the prospects of a final settlement.”

europeanvoice.com/…/…
 
 
#
James
2014-03-27 23:28

The question of EU membership never had any direct relevance to independence as such, but is only one isolated matter amongst many others to be settled afterwards. Bringing it up during the campaign and has just confused the issue and damaged the outcome.

The EU is not the measure for Scotland’s relations with the rest of the world. It is nowhere near as important to Scotland as dozens of the other hundreds of global and regional institutions that Scotland will have to join. We don’t need it for economic reasons, and its so-called “citizenship” is just an EU-internal arrangement that has no external recognition anywhere under international law. As a sub-regional association it has nowhere near the scope of the major European institutions like the Council of Europe, the UNECE or the 57-member OSCE, which represents Europe at the UN.

Can we please just shut up on the EU non-issue and concentrate on getting that Yes vote on 18 September.
 
 
#
davidferguson1
2014-03-28 00:26

Quote:

Can we please just shut up on the EU non-issue and concentrate on getting that Yes vote on 18 September.



We can just shut up James – but the No camp won’t. Currently the EU issue is being used – repeatedly – as a stick to beat the independence campaign. If it persuades even one waverer to vote against independence then that is one vote lost.

We don’t control the media agenda. We have to be able and willing to respond to everything that is thrown at us.

 

 
#
Muscleguy
2014-03-27 23:31

I have been arguing pretty much on these lines in several online places for some months. Nice to know my amateur assessment concurs with that of someone with more legal standing than a Biologist.

To anyone with a modicum of intelligence and a fair mind this has been self evident from the start.

The scaremongering around it by various parties has been nothing less than absolutely scandalous. I wonder if Barroso’s hostage to fortune comments made him too much of a liability as NATO Secretary General? After all if he was in that post newly installed and his words, spoken and written more than once, were shown to be tendentious and untrue then it would cause a storm to engulf NATO that had nothing to do with that organisation. So in trying to win support for that job he may well have lost it because of the methods he chose to employ.

My heart fails to bleed for him.
 
 
#
davidferguson1
2014-03-29 09:31

Seen your stuff muscleguy – keep the faith!
 

 
#
goldenayr
2014-03-27 23:50

Well done in getting a direct email address never mind an answer as good as that.Any chance of giving us the addresses of Barroso,Van Rompuy and Rajoy so we can all email them with our views and questions?
All I got was the runaround when I contacted EU Direct.
 
 
#
Leader of the Pack
2014-03-28 07:30

” The adoption of laws which will have legal effect in the European Union must have a proper legal basis – apart from anything else they must exist, in some clear and written form, in which they can be read, and understood, and if necessary, challenged.”

That is interesting because the only existing legal statute pertaining to Scotlands place in the UK of GB is the Act of Union 1707 which clearly states that it is a joint Parliamentary union relationship not an annexation of territory nor a joining of national identities into a single national identity. Ive said from day 1 that it will be legality and only legality which will determine the outcome of any and all negotiations.
 
 
#
Guinphy
2014-03-28 11:21

Seems like they sent you the same pro forma email they sent me. They, of course, also didn’t answer any of my questions.

I contacted the Commission to ask about their complaints procedure against Barroso and was sent an email today stating that they don’t have one but that I can contact him direct! Oh, how I laughed!

Anyway, good on you for trying to do something about it. Personally, after seeing first hand how much they value democracy, I’m hoping we will be out but I sincerely doubt it somehow.
 
 
#
Virgil
2014-03-28 22:17

What was the question that you asked them David?
 
 
#
davidferguson1
2014-03-29 08:11

NNS has a copy of the full letter. It’s too long to go in a comment, but they might append it to this article if you ask them.
 

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