Questions, old and new
In the debate on Scottish independence much effort has been devoted to the questions ‘how could Scotland join the European Union?’, ‘would independence be good for Scotland?’ and ‘would Scottish independence be good for the rest of the United Kingdom?’ These are important questions, on which informed analysis is essential as Scotland prepares for the referendum on 18th September this year. But from the point of view of the European Union, another important question is: ‘would Scottish independence be good for the European Union?’ Up to now, no-one seems to have addressed this question.
Elsewhere in Europe, the Scottish debate is followed with interest, and the result of the referendum is awaited with concern. After all, Scotland is not the only place where independence is under active discussion: in Spain the government of Catalonia has announced a referendum for 9th November this year on the question of independence; in Belgium, the New Flemish Alliance (Nieuw-Vlaamse Alliantie) won a majority in the 2010 national elections on a platform of independence for Flanders.
Of course, the situations of Catalonia and Flanders differ from that of Scotland in many ways, and their debates on independence take place in different historical and constitutional contexts. For them, an important signifier of identity is their language (Catalan & Flemish), which is not the case for Scotland. In Spain many people – and most of the political parties in the Madrid parliament – consider that independence, or a referendum on independence, would be contrary to the Spanish constitution. By contrast, in the United Kingdom most British people, and all the political parties in the Westminster parliament, accept the Scottish referendum as a valid way to proceed. Flanders, unlike Scotland or Catalonia, it is not a minority in terms of population: in Belgium the two main linguistic communities (Flemish & Walloon) are roughly equal in size, while the size and bilingual status of the national capital, Brussels, is a complicating factor. But despite their differences, the cases of Catalonia and Flanders are similar to Scotland in the sense that their independentists wish to remain in the European Union. All three pose for the EU the question of how to deal with independentism.
This is not a new question: since 1945, and particularly since 1990, many newly independent states have emerged in Europe. Most of them began their independence outside the EU, and then sought EU membership: the Baltic states (Estonia, Latvia and Lithuania) regained their independence after the collapse of the Soviet Union; the Czech Republic and Slovakia were created out of Czechoslovakia’s ‘velvet divorce’; seven states have emerged from the disintegration of the Federal Republic of Yugoslavia. Other countries in Eastern Europe gained independence after the collapse of the Soviet Union, but are not yet in the process of joining the EU. In recent weeks, independentism has come unexpectedly to the forefront of European and international politics as a result of the referendum in Crimea following Russia’s occupation of that part of Ukraine’s territory.
Independence is not a new phenomenon for member states of the EU. In the past, parts of the national territory of France and Denmark have gained independence – Algeria from France in 1962, Greenland from Denmark in the 1980s – but they chose not to remain in the EU (or rather, the European Communities which preceded the European Union). What the EU has not yet experienced is the division of one of its member states into two states, both of which choose to remain within the EU. Thus Scotland, and alongside it Catalonia and Belgium, pose a question for which the EU has no direct precedent. Although the EU’s basic Treaties have always provided for new members to join (the procedure for accession is in Article 49 of the Treaty) and more recently for members to leave (the procedure for secession is in Article 50), they include no provision for transforming an existing member into two members. With this in mind, I use this article to analyse the following questions:
- – What is the European Union’s policy on independentism?
- – Is the division of one member state into two member states good, or bad, for the EU?
- – How is the structure and functioning of the EU relevant to independentism?
In discussing these questions, I try to abstract from the specific cases that I have mentioned (Scotland, Catalonia and Belgium) in order to develop some general principles. Nevertheless, it would be an error to develop a general theory without taking account of the practical facts of the situation, so I refer particularly to the case of Scotland, which is the ‘first in line’ for independence within the EU.
The need for a rational approach
At this point I need to make a personal statement. In the debate on Scotland’s constitutional future – and on independentism in general – it is difficult to maintain the role of an ‘independent analyst’. Discussion polarises the opposing camps of ‘Yes’ and ‘No’, and whatever a neutral commentator says or writes tends to be seized by one side or the other for polemical use. Although this may be inevitable in the rough-and-tumble of political debate, there must still surely be a place for truly independent analysis. In my case, I have contributed to discussion of the question ‘how could Scotland join the EU’ not because I am partisan on the matter of Scottish independence, but because I believe that decisions on important questions such as independence should be enlightened by well-informed analysis.
I realised some time ago that the EU is used in the Scottish debate in a misleading way, with ‘unionists’ presenting the EU as a major handicap to Scottish independence, and ‘independentists’ adopting a simplistic approach to the EU. That is why I submitted evidence to parliamentary committees, in London in 2012 and in Edinburgh in 2014, outlining my ideas on how an independent Scotland could join the European Union. My view on this issue, in brief, is that if Scotland votes for independence, the common sense solution is for its EU membership to come into force on the same day as its independence, and that it would not be in the interest of the EU and its member states to oblige the Scottish people to leave the EU and apply for membership from outside.
Given that these same arguments were espoused by the Scottish government in its 2013 White Paper ‘Scotland’s Future’, my position has been interpreted as support for Scottish independence. However, I am not a supporter of the Scottish National Party, or of any political party, and my position on Scottish independence is neutral. In my youth, I lived for some years in Scotland but I was born in Wales and am now resident in England. I have no vote in the Scottish referendum and I try to approach the question of Scottish independence as objectively as possible.
Let me close this parenthesis by saying that in my view this referendum, and the commitment by the British government to respect its result, is a civilised way to address the independence question. I cannot do better than quote the journalist Gideon Rachman, who has commented that:
‘…morally and practically the United Kingdom can only be kept together on the basis of consent…the British brand is built around tolerance, the rule of law and democracy, and there is no better demonstration of those values than the Scottish referendum’.
As a British citizen, I take pride in this, and as a British citizen, I want to ensure that this process is accompanied by a well-informed debate.
Indepententism – the view from Brussels
So what is the European Union’s policy on independentism? Not much can be said in direct reply to this question, since it has never been addressed by the EU’s institutions. It is true that the Treaty on European Union mentions the territorial integrity of the state in its list of basic principles. It says:
‘…the Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State’.
However, this is not a guarantee in perpetuity of the existing geographical definition of the EU’s member states. The Treaty says that territorial integrity is considered to be a function of the member state, and that the EU respects this. It has not prevented the EU from accepting the re-definition by member states of their geographical territory on a number of occasions. That was the case not only for the independence of Algeria and Greenland, but also for other changes concerning dependent territories of member states, and for the reunification of Germany in 1990.
Clearly, one of the basic principles of the EU is to respect the constitutional arrangements of its member states and this principle has been scrupulously observed by the main EU institutions (Council, Parliament, Commission). One may say, in fact, that on the question of independentism in member states, the policy of the European institutions is not to have a policy but rather to respect the constitutional arrangements of the member states concerned.
It follows from this that no EU institution, and no EU member state, has challenged the decision of London to allow a referendum on Scottish independence. It also follows that no EU institution, and no EU member state, is likely to challenge the view of Madrid that the independence of Catalonia is contrary to the national constitution which is based on ‘the indissoluble unity of the Spanish nation, the common and indivisible homeland of all Spaniards’. Although Catalonians would argue that this does not prevent the holding of a referendum, other EU member states will not wish to challenge Madrid’s interpretation of the Spanish constitution; after all, they do not want other member states to interpret their own constitutions.
Even if the EU has no explicit policy on independentism, it may still be possible to deduce its implicit policy from its actions or reactions in relation to actual cases of independence. Outside the EU, as we have seen, numerous new states have been created in Central and Eastern Europe since 1990. Most commentators would agree that the creation of these new states – and their pursuit of democratic stability and economic progress – has been a success story and that the EU itself has contributed notably to this process through the incentive of membership.
How does the EU respond to independence aspiration?
As a generalisation, one may say that the initial attitude of the EU – or at least, many of its members – has been to resist or discourage the division of other European states into smaller units. This reflects a natural preference in diplomacy for the status quo, and an apprehension that change may create uncertainty and lead to political problems. This attitude was very visible at the time of the disintegration of the Soviet Union, and then of Yugoslavia, when most European governments initially hesitated to accept the process of change.
But when independence is imminent or has become an established fact, the reaction of the EU and its member states has been to deal with it and try to find remedies for any resulting problems. This was the case for the situation in the Balkans with the break-up of Yugoslavia, and for the subsequent cases in Serbia, from which Montenegro declared independence in 2006 and Kosovo in 2008.
The EU’s reactions to these two episodes were particularly interesting. When Montenegro decided to hold a referendum on independence, the EU was unenthusiastic until Serbia agreed (reluctantly) to accept it as a constitutional process. The EU – together with the Council of Europe – then not only supervised the referendum but fixed the parameters for its validity. After the narrow ‘Yes’ majority, Montenegro’s independence was immediately recognised by all EU members.
But when Kosovo held a referendum and Serbia refused to accept it, the EU found itself in disarray. Although most EU members recognised the new state, five – Spain, Slovakia, Romania, Cyprus, Greece – did not. They refused, and continue to refuse, to recognise Kosovo’s unilateral declaration of independence because they consider that this could create a precedent for independentists in their own counties (in Spain, Catalonians and Basques; in Slovakia and Romania, Hungarians; for Cyprus and Greece, Turkish Cypriots).
These cases demonstrate how the question of constitutional validity has been a key factor for the EU’s response to independentism. In Kosovo, despite its non-recognition by several EU members – and therefore by the EU itself – the process of stabilisation, reconstruction and preparation for membership has nevertheless been engaged by the EU. For its part, Serbia understands that the normalisation of its relations with Kosovo is a precondition for the success of its own EU accession process. In the light of such normalisation, one may expect the five remaining EU members eventually to recognise Kosovo.
In summary, the implicit policy of the EU in relation to independentism in Europe consists of initial reluctance followed by pragmatic acceptance, provided that the process leading to independence can be considered as constitutional. Currently, in the case of Crimean independence, the question of the constitutionality of the referendum is a key factor for the EU and its members.
Is the division of EU member states good or bad for the EU?
My analysis up to now has been descriptive, addressing the question ‘what is the EU’s policy, explicit or implicit, concerning independentism?’ I turn now to a more prescriptive analysis, and try to address the question: ‘is the division of one member state into two member states good, or bad, for the EU?’ It is important to note that my question is not ‘is a particular case of independence, such as Scotland, good for the EU?’ to which the reply would naturally depend on the specific circumstances. The question I address here is of a more general nature.
It can certainly be argued that an increase in the number of member states tends to make the functioning of the EU’s institutions and their decision-making more complicated. However, this is not a conclusive argument because successive enlargements of the EU over the last 40 years have increased its membership from 6 to 28 states without paralysing its decision-making. Although it may be more complicated with more members voting, it is not necessarily more difficult for the EU’s main decision-making institutions (Council or Parliament) to act by majority – or qualified majority – vote. Some game-theorists would argue that with more actors it may even be easier to find majority solutions. Naturally, in areas where the EU decides by unanimity, there is a greater risk of paralysis as a result of more actors but experience shows that it is the big member states that tend to exercise vetoes; small and medium-size members use them rarely.
In the scenario that we are considering – where one member state divides into two – the resulting increase in the number of member states is accompanied by no change either in the population of the EU, or its economic size. By definition, they remain the same. Thus, the size of the EU’s internal market is not affected and its external influence in terms of negotiating weight in fields such as trade is not diminished. Indeed, it can be argued that the EU’s weight in international affairs is increased, since it gains an additional seat and votes in the United Nations and other international organisations.
The EU has no preference for bigger rather than smaller states, or vice versa; one of its principles is to ‘respect the equality of member states’. However, in its system of decision-making the EU does have an inbuilt bias in favour of smaller states. For seats in the European Parliament and votes in the Council by qualified majority, smaller states are over-represented in terms of population; they also have relatively more voting power than bigger ones. This ‘degressive proportionality’ is designed to give smaller states the reassurance that they will not be dominated by the bigger states. However, this factor will be reduced in importance when the system of ‘double majority’ voting comes into force in the Council later this year.
I conclude this part of my analysis by saying that, for me, there is no conclusive argument to suggest that the division of one member state into two is good or bad for the EU. In my view, it is on balance neutral. This does not mean that it cannot be opposed by individual member states, in particular cases and for various reasons. But it can hardly be opposed on the grounds that it weakens the EU, or is contrary to the EU’s basic principles or interests.
Is EU structure and function conducive to independentism?
Let us develop this reflection further, and examine the question ‘which aspects of the EU’s structure and functioning are relevant to the question of independentism?’
The EU has since its inception been a multinational, multilevel system of governance, incorporating elements of supranationality. It allows member states to ‘upload’ various national functions to the European level, starting with competition policy and international trade policy, and continuing with macroeconomic policy, environment policy, foreign policy, etc.
Initially in the 1960s there were only two levels of governance – European and national – but the situation developed from the 1980s onwards as a result of devolution in member states giving more autonomy to regions. In fact the EU’s principle of subsidiarity now identifies four different levels of governance: European; national; regional; and local. Local and regional entities have begun to enjoy increased opportunities for freedom of action and negotiation in European affairs, independently of national authorities. The creation of the Committee of Regions as an EU institution in 1994 resulted from the realisation that the regions wanted a voice in the EU’s institutional framework, but this development has not given them much satisfaction; it is a talking-shop, not an instance of decision.
Meanwhile, although the European Parliament has obtained more power, the focus of decision-making is the EU Council of Ministers and the European Council. In other words, power remains with member states. If we add to this the fact that ‘degressive proportionality’ in EU decision-making gives smaller members and advantage, we can understand how independentists are motivated to seek the status of EU membership. Without the EU, it would be more difficult to transform a subnational entity into a nation state, which has to perform complex functions in fields of policy such as international trade, macroeconomic management, currency, foreign affairs and security. Within the EU, membership does not eliminate the need for such national functions, but allows important aspects to be uploaded to the supranational level.
These aspects of the EU’s structure and functioning evidently create an environment in which independentism can be more credible. Eurosceptics may be tempted to interpret this as evidence of a clandestine plan by federalists to weaken the nation state, since independentism leads to smaller member states which may be more inclined to support federal solutions. The truth is different. The characteristics of the EU that I have described were developed by member states in order to combat the political and economic challenges posed for them by international markets and globalisation. The classic work of Alan Milward – the official historian of British EU policy and an influential historian of European integration – was a book entitled The European Rescue of the Nation-State in which he argued that the relationship between European integration and the nation state has been mutually beneficial and supportive.
In considering how to deal with independentism today, member states of the European Union are fully entitled to insist that the principles of democracy and constitutionalism should be respected. They should also accept that – in relation to the EU – independentists are entitled to follow the logic of the structure that member states themselves have devised.
 Independentist movements exist in other regions of the EU such as South Tirol in Italy, Corsica in France, the Basque Country in Spain, the Székely Land in Romania, Wales in the United Kingdom, etc. In all these cases language is an important factor. But in my view local support for independence in these regions is not substantial enough at present to pose a real challenge
 The new states that emerged from Yugoslavia are Slovenia, Croatia (now EU members), Serbia, Montenegro (now in negotiations for EU membership) Macedonia (known as the Former Yugoslavian Republic of Macedonia), Bosnia-Herzegovina, and Kosovo (not yet recognised as a state by five EU members). The neighbouring state Albania was not part of Yugoslavia.
 Belarus, Ukraine, Moldova, Georgia, Armenia, Azerbaijan
 After Greenland voted in its 1982 referendum to leave the EC, a Greenland Treaty between EC member states came into force in 1985. Greenland now has self-rule within the Kingdom of Denmark as an autonomous country whose external affairs are managed by the Danish government. As one of the EU’s ‘Overseas Countries and Territories’ it has access to the internal market, is within the common external tariff, and its citizens have EU citizenship.
 For my written evidence, see: http://www.scottish.parliament.uk/S4_EuropeanandExternalRelationsCommittee/Meeting%20Papers/Graham_Avery_Written_Evidence.pdf
For my oral evidence, see:
 Financial Times, 18 February 2014
 Article 4.2 of the Treaty on European Union
 Although the British constitution does not exist in a codified written form, the Scottish referendum is considered to be part of a constitutional process. It is paradoxical that one of the stated priorities of the Scottish government after independence is the adoption of a written constitution for Scotland; if a written constitution had existed for the United Kingdom, it could have been more difficult for Edinburgh to obtain London’s agreement to a referendum on independence.
 Article 2 of the Spanish Constitution of 1978
 The 2003 Constitutional Charter of the Union of Serbia and Montenegro stated (Article 60) that either state could withdraw from the Union within three years, following a referendum
 Jose Manual Barroso, President of the European Commission, has said (BBC TV, 16 February 2014), that Kosovo ‘is to some extent a similar case’ to Scotland. This is incorrect: the case of Scotland is not similar to Kosovo; it is more like Montenegro. Likewise his comment that Scotland’s accession to the EU would be ‘extremely difficult, if not impossible’ was ill-judged; it cannot be correct to suggest that for Scotland, which has been in the EU for 40 years, it would be more difficult than for other countries
 This two-stage reaction was seen in the case of German reunification in 1990: both France and Britain were reluctant initially to envisage the coming together of the two Germanies, but then accepted it, allowing the two states to unite in one member state of the EU.
 Under Article 6(2) of the Treaty of Lisbon, which comes into force on 1 November 2014, the new qualified majority corresponds to at least 55% of the members of the Council, comprising at least 15 of them and representing at least 65% of the EU’s population
 The principle of subsidiarity is defined in Article 5(3) of the Treaty on European Union: ‘the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union
The author is a Senior Member of St. Antony’s College, Oxford University, and Senior Adviser at the European Policy Centre, Brussels. He worked for 40 years in Whitehall and Brussels, and is Honorary Director-General of the European Commission. He was appointed Companion of the Order of St. Michael and St. George by Her Majesty the Queen in 2012, in recognition of his services to European affairs. He expresses his personal views in this article, not those of any institution or organisation.