Under EU law, can Scotland remain or be re-admitted to the EU after Brexit while still a part of the UK?



Newspaper reports yesterday said that the Scottish First Minister and leader of the Scottish National Party, Nicola Sturgeon, had lobbied EU members to support Scotland's remain bid.

After Scotland voted 62% to 38% to stay in the EU, she said she planned to begin immediate discussions with the European commission to “protect Scotland’s relationship with the EU and our place in the single market”.

However more recent reports said that the EU had rebuffed this suggestion.

But the First Minister was told that even if Scotland gained its independence it would still have to reapply to be part of the EU again. In a briefing note sent to MEPs by the European Parliamentary Research Service, it confirmed that a member state ‘cannot… remain in the EU if the member state itself withdraws’, according to Mail Online. However, there could be a loophole. It has been suggested Scotland could retain membership through a ‘reverse Greenland option’.This came about after Greenland voted to breakaway from the EU in 1982, even though its residents are Danish and Denmark remains a member.

My question is what exactly is Scotland's position under EU law?

Subsidiary question: what would EU law stipulate about Scotland's currency in these circumstances?

(Note that this question is not quite the same as the earlier question "What will Scotland's status in the EU be, assuming Scots vote for independence?", since that question concerned the situation if Scotland becomes an independent state. This question refers to the current position in which Scotland is part of the UK.)


Posted 2016-06-27T08:09:46.660

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The Greenland example indicates that EU law is quite amenable to fudging situations. It's also important to remember that the EU is a creation of treaties and can be amended by treaties. A unanimous agreement of the members can change anything. If, as is quite likely, there is an agreement that needs to be made about the UK's status after Brexit, it would be natural to include a subsection there about the status of Scotland.

From there, all else is politics. But it seems highly unlikely that an organisation committed to "ever closer union" would force out a region that wanted to negotiate to remain in.


Posted 2016-06-27T08:09:46.660

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1AFAIK, under international law only countries can be part of treaties (someone please correct me if I am wrong). Even ignoring that, any practical implementation of Scotland both in UK (with Brexit) and EU would be a practical nightmare. What would happen if the UK Parliament set a tariff in some good imported from the EU? Or conversely, if the UK allowed from free importation of some good from outside the EU that EU had tariffs against? – SJuan76 – 2016-06-28T09:52:03.583

There's plenty of precedent, although only for tiny places: https://en.wikipedia.org/wiki/Special_member_state_territories_and_the_European_Union . This has been called the "reverse Greenland option": Greenland is part of Denmark (an EU member state), but Greenland is not in the EU.

– pjc50 – 2016-06-28T10:35:56.933

Tariffs: there was a period about a decade ago when Amazon posted all CDs through Jersey to the UK to avoid VAT. Jersey is a Crown territory, so not an independent country, but also not part of the UK and not part of the EU. The VAT loophole was eventually fixed. – pjc50 – 2016-06-28T10:38:02.583


My point is not that there are parts of countries of the EU that are not full part of the EU (no disagreement about that). My point is that, AFAIK, the status of these territories was negotiated not with the regions directly but with the EU member state holding those regions. For example, if you search for the Greenland treaty (http://web.archive.org/web/20140416110747/http://eu.nanoq.gl/Emner/EuGl/The%20Greenland%20Treaty.aspx) and look at the list of signataries, you find the Queen of Denmark and no direct representative from Greenland.

– SJuan76 – 2016-06-28T10:56:44.300

Back to "agreement that needs to be made about the UK's status after Brexit": I'm proposing that there would be a treaty between the UK and the other High Contracting Parties of the EU that establishes the status of Scotland. Obviously this requires the rUK's consent, but realistically that will be given in some form since it's required for a peaceful exit of Scotland from the UK Union anyway. – pjc50 – 2016-06-28T11:14:04.910


The answer is a bit similar to the answer to Could the UK re-join EU after leaving? Legally, there is nothing in place to grant automatic EU membership or some sort of smooth path to it. Except if all EU members agree to reform the treaties (which has become increasingly difficult in the last decades), Scotland would have to use the regular path to admission.

On the other hand, Scotland is part of the EU today, which means it would not need anything like the reform process other new members have to undergo. After all, it already applies EU law in most relevant aspects.

Such a new membership would also require the consent of every current member. But given Scotland's economic position, I would not expect that much opposition, even from countries generally reluctant towards further enlargement and I don't think the (warranted) skepticism regarding the chances of current candidate countries like Serbia or Turkey should apply to Scotland.

However, one issue that came up in earlier discussion of Scottish independence and possible EU membership could come up again: Some current member states like Spain seem very reluctant about granting membership to breakaway regions, because it could foster pro-independence tendencies from the like of Catalonia or the Basque country (where many people would be keen on leaving Spain if EU membership was guaranteed to make things easier for the new country). It's unclear whether Brexit would make any difference in this respect (Mariana Rajoy already declared publicly that it did not as far as Spain is concerned).


Posted 2016-06-27T08:09:46.660

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The EU has informal programs for the "European regions" and Scotland is composed of 6 such regions. However, when it comes to the basic EU law, all of Scotland is just a somewhat random part of the U.K., currently an EU member state.

The EU obviously cannot separate Scotland from the U.K. in any way, as the status of Scotland is a purely internal affair of the U.K. Scotland couldn't remain in the EU without its recognized independence and statehood. It could only apply for a membership in the EU if it gained independence and was recognized by all member states of the EU as an independent country. But the admission process would have to start from scratch, just like for Serbia and other countries in the queue. Such an admission – which would also require the approval by all EU member states – is generally considered virtually impossible.

Even in the most favorable case in which Scotland became the only successor state of the U.K., and I don't really believe that anyone in England would allow such a thing, a new process of readmission would almost certainly have to begin.

Also, there's no way in which Scotland could become a part of the Eurozone. The Eurozone itself is widely considered a frozen project that won't expand for many years. The new member states must obey many conditions and even the counties that clearly obey all the material conditions such as my homeland of the Czech Republic are being told No. (Which is just a way to mask that the Czech Republic itself and other countries don't seem to have any desire to join the Eurozone these days.) However, it's plausible that Scotland could be allowed to use the Euro as a non-member, in the same way as Montenegro in former Yugoslavia.

Strategically, despite the higher support for the EU, the attempts of the hypothetical independent Scotland to join the EU could be dangerous for many reasons, especially if England and Wales weren't really supportive of the plan. Scotland would be divided from the rest of the EU by England. Many basic things could be rather complex and the influence of England would be huge, anyway.

People outside the U.K. shouldn't generally intervene into these affairs but if someone in Scotland expects that all the EU countries will actively work on the reincorporation of Scotland against the wishes of England and Wales, I am pretty certain that he is wrong. In the end, the support for the EU wasn't overwhelming even in Scotland. Whatever happens on the U.K. territory should be more or less approved by the main political institutions of the U.K. and its basic parts.

Luboš Motl

Posted 2016-06-27T08:09:46.660

Reputation: 760

3EU leaders are desperate to avoid destabilising the union any further. It is entirely possible that they may allow Scotland to stay in the EU. After all, there is no precedent for this type of situation. As for the Euro, the Scottish government has already come out and said that it wants to keep the pound, not join the Euro. – bon – 2016-06-27T10:06:04.130

"Scotland couldn't remain in the EU without its recognized independence and statehood. It could only apply for a membership in the EU if it gained independence and was recognized by all member states of the EU as an independent country. But the admission process would have to start from scratch, just like for Serbia and other countries in the queue." Can you supply more specific information eg. laws, rulings or statements by EU official bodies to support these statements? – Lostinfrance – 2016-06-27T10:36:39.540


Sure, read the EU treaty, http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%206655%202008%20INIT - on page named 58, there is article 49 about joining and article 50 about leaving. What joins is a "European State". I could quote other things to make sure that it means a recognized country.

– Luboš Motl – 2016-06-27T11:57:43.553

1Actually, there is no way a country can join the EU without committing to join the eurozone and if the country meets the conditions, what's to stop it? The Eurozone is objectively a disaster but who said it was frozen, either legally or politcally, as far as the EU is concerned? – Relaxed – 2016-06-27T15:26:50.953

Relaxed - except that countries may get optouts from the Eurozone, the U.K. has had one - and I think that Denmark has it, too. Moreover, there is no time pressure so Poland/Hungary/Czechia and others basically have it, too. – Luboš Motl – 2016-06-28T05:09:21.013

@LubošMotl the exemptions for the non-euro countries was granted to them because they didn't sign up when the euro existed (ie the rules could not be applied retrospectively). however, all newly joining countries don't have that, taking the euro is a condition of joining. – gbjbaanb – 2016-06-28T09:04:28.383

Just now Alyn Smith has got a standing ovation from the European Parliament for calling for "support for Scotland staying in Europe" https://twitter.com/SkyNews/status/747729114828779521 - so I suspect the EU would be willing to make the necessary fudges to keep Scotland.

– pjc50 – 2016-06-28T10:42:28.220

Keep on dreaming. There may be lots of EU fanatics in the EU Parliament but thankfully in this case, the Parliament's power is zero. – Luboš Motl – 2016-06-28T10:53:46.600

How dare those MEPs be pro-EU! – pjc50 – 2016-06-28T11:15:57.047

It is arrogant - it is especially unacceptable how big a percentage of such pro-EU MEPs are there. The Brexit referendum is an example of the fact that the percentage of anti-EU folks in the EU countries is comparable to 50%. I have my MEP whom I voted for and whom I know in person, Petr Mach, who wants to lead the Czech-out efforts now. He surely didn't applaud. But propagandists like you never report on the important ideas that the likes of Mach - who represent some 50% of Europeans - have to say. – Luboš Motl – 2016-06-28T11:29:19.693


The U.K. has not yet exited the EU. If the Scottish People decide to leave the U.K. in favor for the EU befor the U.K. has actually exited, then perhaps Scotland will not leave the EU in first place. But I'm not sure if this possible since Scotland became a member of the EU as a part of the U.K. Or perhaps it is possible to find a separate agreement with Scotland so that it does not have to exit with the U.K. This may be possible, especially since the British statesman are not in hurry to begin the actual exit process.

But I don't think it is possible for Scotland to stay in the EU and still be a part of the U.K. New treaties and agreements will be being signed by the U.K and the EU. If Scotland is still a part of the U.K. at the time of signing, then that new agreements will pertain for Scotland too.


Posted 2016-06-27T08:09:46.660

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