Opinió. Roland Vaubel

http://www.vwl.uni-mannheim.de/vaubel/pdf-Dateien/ThePoliticalEconomy09.04.13.pdf

Opinió. David Edward

FORDHAM INTERNATIONAL LAW JOURNAL

EU Law and the Separation of Member States

by David Edward

The most profound contribution of Konrad Schiemann to the European Union may well have been his Mackenzie Stuart Lecture at the University of Cambridge on February 9, 2012.  Having been born in Germany of German parents but brought up and educated in England, followed by a long and distinguished career as barrister, Queen’s Counsel and judge, he set out the case for the EU as a source of inspiration—what one might call the moral case for Europe. His lecture deserves to be read and valued by the students of the current generation for whom the experiences of our generation are as remote as were the Franco–Prussian War of 1870–71 or the Bulgarian atrocities of 1876 for us.

As my contribution to this set of essays in honour of Konrad Schiemann, I would like to address a more limited topic which has its own moral dimension. This is the problem that would arise if one constituent part of a Member State were to decide to separate from the rest of that State. The problem arises today—at least potentially—in the cases of Scotland, Catalonia and Flanders vis-à-vis, respectively, the remainder of the United Kingdom, Spain and Belgium.

The moral dimension has been accentuated very recently by a contribution of Professor Joseph Weiler as editor of the European Journal of International Law on the subject of Catalonian independence.  According to Professor Weiler, “It is simply ethically demoralizing to see the likes of Catalonia reverting to an early 20th-century post-World War I mentality, when the notion that a single state could encompass more than one nationality seemed impossible . . . .”  The Catalan claims of historic wrongs in the Franco era are “but a fig leaf for seriously misdirected social and economic egoism, cultural and national hubris and the naked ambition of local politicians.”  He concludes:

Europe should not seem like a Nirvana for that form of irredentist Euro-tribalism which contradicts the deep values and needs of the Union. The assumption of automatic membership in the Union should be decisively squelched by the countries from whom secession is threatened and if their leaders, for internal political reasons, lack the courage so to say, by other Member States of the Union, France in the lead.

As regards the legal position, the President of the European Commission, José Manuel Barroso, in a letter to the Chairman of the House of Lords Economic Affairs Committee of the United Kingdom Parliament, has stated:

The EU is founded on the Treaties which apply only to the Member States who have agreed and ratified them. If part of the territory of a Member State would cease to be part of that state because it were to become a new independent state, the Treaties would no longer apply to that territory. In other words, a new independent state would, by the fact of its independence, become a third country with respect to the EU and the Treaties would no longer apply on its territory.

Under Article 49 of the Treaty on European Union, any European state which respects the principles set out in Article 2 of the Treaty on European Union may apply to become a member of the EU. If the application is accepted by the Council acting unanimously, an agreement is then negotiated between the applicant state and the Member States on the conditions of admission and the adjustments to the Treaties which such admission entails. This agreement is subject to ratification by all Member States and the applicant state.

The purpose of this essay is to examine the legal correctness of Mr. Barroso’s statement (‘the Barroso theory’), and statements to the opposite effect. But I should first make my own position clear, since I am a Scot living in Scotland, and I will be one of those that will be asked next year (2014) to vote in a referendum on the issue of Scottish independence. The issue of Scotland’s future within the EU is one that has profound implications for that debate.

I am personally a moderate unionist in the sense that I still believe in the United Kingdom but I respect the sincerely held views of moderate separatists, like the late Professor Sir Neil MacCormick, who believe in Scottish independence. I hope very much that the issue of an independent Scotland’s place in the EU will not arise, but the issue is still important and concerns other countries as well.

It may be, as Professor Weiler suggests, that the issue should not arise, and that the pretensions of separatists in Scotland, Catalonia and Flanders should be dismissed as irredentist Euro-tribalism. The fact remains that a more than insignificant proportion of the people in those areas supports them. Article 2 of the Treaty on European Union (‘TEU’) affirms the belief that the Union is founded on certain core values, including respect for human dignity, freedom and democracy.  If the majority were to vote for independence, it is difficult to see why those core values should not be respected.

In any event, I can see nothing ignoble or tribalist in the belief that small countries are likely to be more in tune with the aspirations of their citizens than large ones. That, after all, is an aspect of subsidiarity, one of the Union’s core principles set out in Article 5 TEU.  And it is not obvious to me why the EU should hold its doors open to the small nations of Middle and Eastern Europe whose very existence as independent states is due to the break-up of greater entities, while slamming them shut against the aspirations of those who regard themselves as ‘stateless nations’ in Western Europe.

In short, the moral arguments are ambivalent and it seems to me to be more fruitful to focus on the legal issues. Before doing so, however, it is necessary to highlight important differences between the three cases of Scotland, Flanders and Catalonia. In each case, there are complex and mutually incompatible arguments at the national level.

Opinió. Graham Avery

Session 2012-13 

HC 643 The foreign policy implications of and for a separate Scotland

Graham Avery, Senior Member of St. Antony’s College, Oxford University, Senior Adviser at the European Policy Centre, Brussels, and Honorary Director-General of the European Commission

1. The object of this note is to clarify the procedure by which, following a referendum in which the Scottish people vote in favour of independence, Scotland could become a member of the European Union. Although the note touches on wider issues such as the terms of Scotland’s membership and the attitude of the EU member states and institutions, it focuses on the question of the procedure for Scotland’s accession.

2. In the debate on Scottish independence it is natural that opponents tend to exaggerate the difficulties of EU membership, while proponents tend to minimise them. This note tries to address the subject as objectively as possible. In summary it argues that:

· Arrangements for Scotland’s EU membership would need to be in place simultaneously with independence

· Scotland’s 5 million people, having been members of the EU for 40 years; have acquired rights as European citizens

· For practical and political reasons they could not be asked to leave the EU and apply for readmission

· Negotiations on the terms of membership would take place in the period between the referendum and the planned date of independence

· The EU would adopt a simplified procedure for the negotiations, not the traditional procedure followed for the accession of non-member countries

3. The author a Senior Member of St. Antony’s College, Oxford, Senior Adviser at the European Policy Centre, Brussels, and Honorary Director-General of the European Commission. He worked for 40 years as a senior official in Whitehall and Brussels, and took part in successive negotiations for EU enlargement (see biographical note at end).

4. The EU has no historical precedent for dealing with Scottish independence. The following cases are relevant, but hardly constitute precedents:

· Greenland joined the EU in 1973 as part of Denmark. Later it obtained home rule and voted to leave the EU. This led to a decision of the EU in 1989 removing Greenland from the EU’s customs territory and legal framework.

· In March 1990 the German Democratic Republic elected a new government committed to reunification; in October 1990, when it joined the German Federal Republic, its 16 million people became members of the EU.

· As a result of Czechoslovakia’s ‘velvet divorce’ the Czech Republic and Slovakia became independent states in 1993. Slovakia applied for EU membership in 1995, the Czech Republic in 1996, and they both became members in 2004.

5. German reunification represents in some ways the opposite of Scottish independence: it was enlargement without accession, whereas Scottish independence would be accession without enlargement. Nevertheless it is pertinent for the Scottish case from the point of view of procedure. Under pressure of the date for reunification, the EU adopted a simplified procedure for negotiation under which the Commission explored with Bonn and Berlin the changes needed in EU legislation, and its proposals were approved rapidly by the Council of Ministers and European Parliament. No EU intergovernmental conference was necessary because there was no modification of the EU Treaties.

6. However, for Scotland a modification of the EU Treaties would be necessary, if only to provide for Scottish representation in the EU institutions (number of members of European Parliament, number of votes in Council of Ministers, etc.).

7. At this point we need to consider the timing and procedure for such Treaty changes. Scotland’s EU membership would need to be in place simultaneously with Scottish independence. For practical and political reasons the idea of Scotland leaving the EU, and subsequently applying to join it, is not feasible. From the practical point of view, it would require complicated temporary arrangements for a new relationship between the EU (including the rest of the UK) and Scotland (outside the EU) including the possibility of controls at the frontier with England. Neither the EU (including the rest of the UK.) nor Scotland would have an interest in creating such an anomaly.

8. From the political point of view, Scotland has been in the EU for 40 years; and its people have acquired rights as European citizens. If they wish to remain in the EU, they could hardly be asked to leave and then reapply for membership in the same way as the people of a non-member country such as Turkey. The point can be illustrated by considering another example: if a break-up of Belgium were agreed between Wallonia and Flanders, it is inconceivable that other EU members would require 11 million people to leave the EU and then reapply for membership.

9. It follows that negotiations on the terms of Scottish membership would take place in the period between the referendum and the planned date of independence. We do not know at this stage how long that period would be; complicated negotiations between Edinburgh and London would have to take place; but we may guess that not more than one or two years be needed.

10. The main parties in negotiations for Scottish accession to the EU would be the member states (28 members after Croatia’s accession in 2013) and the Scottish government (as constituted under pre-independence arrangements). It may be noted that in this situation the government of Scotland - not yet an independent state - could not in fact submit an application for EU membership under Article 49 of the Treaty. But it could indicate its wish for Scotland to remain in the EU, and this would lead to negotiations in an appropriate framework to prepare the necessary modification of the Treaties. Proposals would be submitted for approval to the EU institutions and the Parliaments of 28 member states and of Scotland, and would come into force on the date of Scottish independence.

11. As in the case of German reunification, the EU would adopt a simplified procedure under which the Commission would be asked to conduct exploratory talks with Edinburgh, London and other capitals, and submit proposals. Although an intergovernmental conference would be needed, it would not be of the kind that handles accession negotiations with non-member countries. A protracted accession procedure of that type, with detailed scrutiny of 35 chapters of the EU’s acquis, would not be necessary in the case of Scotland, which has applied the EU’s policies and legislation for 40 years.

12. Let us return to the question of the changes in EU legislation necessary for Scottish membership. We need to distinguish here between changes in the EU Treaties (primary legislation) and changes in EU regulations, directives, decisions etc. (secondary legislation). The changes in the basic Treaties for institutional reasons should not be problematic: for Scotland they could easily be calculated by reference to member states of comparable size (Denmark, Finland & Slovakia have populations of 5-6 million). The number of votes in the Council for the remainder of the United Kingdom would not need to be adjusted (with 60 million it would still be comparable to France & Italy) although its members of Parliament might need to be reduced in number in order to respect the Parliament’s limit of members.

13. In accession negotiations with non-member countries the EU has always strongly resisted other changes or opt-outs from the basic Treaties; at this stage it remains to be seen what might be requested by Scottish representatives concerning the euro or the Schengen area of free movement of persons. Without embarking here on a discussion of the implications for Scotland of these policies, we may note that although new member states are required to accept them in principle, they do not become members of the eurozone or Schengen immediately on accession, and are not permitted to do so. Joining the euro or Schengen depends on a series of criteria that are examined in the years following accession.

14. Let us turn now to the secondary legislation. Although a large number of technical adaptations would be needed in order for Scotland to implement EU law, the vast majority of these would be uncontroversial since they would be based on the existing situation. In respect of EU policies and legislation, Scotland’s citizens have a legitimate expectation of the maintenance of the status quo in terms of economic and social conditions. There should be no need, for example, to re-negotiate Scotland’s application of European policies in fields such as environment; transport, agriculture, etc.: it would suffice to transpose mutatis mutandis the situation that already exists for Scotland within the U.K. Since the rest of the U.K. could be affected, that process would require discussion and clarification with London, but it would have little interest for other member states who would be content to consider the question of secondary legislation on the basis of a report and proposals from the Commission.

15. Here again, it remains to be seen whether Scottish representatives would request changes in the application of EU rules and policies, for example the fisheries policy or payments into the EU budget. In general one would expect these matters to be solved on a temporary basis by means of a roll-over mutatis mutandis of existing arrangements for the U.K. until the relevant EU rules come up for revision, for example the renegotiation of fishing quotas, or the multi-annual budgetary framework. Such solutions would, in fact, be in Scotland’s interest since it could expect to obtain a better deal as a member state with a full voice and vote in the EU than in the pre-independence period. However, the adaptation of the British budgetary rebate could require difficult negotiations between Edinburgh and London as well as with Brussels.

Biographical note

Graham Avery is Senior Member of St. Antony’s College, Oxford University, Senior Adviser at the European Policy Centre, Brussels, and Honorary Director-General of the European Commission. He has given evidence on a number of occasions to Committees of the House of Commons and the House of Lords

In the Ministry of Agriculture, Fisheries and Food in London (1965-72) he headed the unit responsible for negotiations for accession to the EC, and later (1976) served as Private Secretary to two Ministers. In the European Commission in Brussels (1973-2006) he worked in agricultural policy, foreign affairs, and the cabinets of the President and other Commissioners, and took part in successive negotiations that enlarged the EU to 27 members. His last post was as Director for Strategy, Coordination and Analysis in the Directorate General for External Relations

He has been Fellow at the Center for International Affairs, Harvard University, Fellow at the Robert Schuman Centre for Advanced Studies of the European University Institute, Florence,

Visiting Professor at the College of Europe, and Secretary General of the Trans European Policy Studies Association

In the Queen’s New Year Honours 2012 he was appointed Companion of the Order of St. Michael and St. George (CMG) for services to European affairs.

24 September 2012

No hi ha barrera legal per continuar sient membres de l' UE

Exclusive - EC Official confirms no legal barrier to continued Scottish EU membership

General

WEDNESDAY, 09 OCTOBER 2013 06:54

21 COMMENTS

  By a Newsnet reporter 
Scotland can legally negotiate a continuation of its current membership from within the European Union following a Yes vote, an EC official has confirmed.

Mario-Paulo Tenreiro, who is responsible for institutional questions at the Secretariat General of the European Commission has said it would be "legally possible" for such negotiations to take place whilst Scotland remained an EU member.

The official was responding to a direct question from a member of the public, who asked: "Does the President agree with me that, given Scotland is already in the EU and therefore meets criteria for membership, an independent Scotland would be able to negotiate its terms of membership of the European Union within the European Union?"

In a letter of reply, Mr Tenreiro said that whilst a change of treaties would be required - needing the approval of other members - that: "…as you say, it would of course be legally possible to re-negotiate the situation of UK and Scotland within the EU."

Official confirmation that there is no legal bar to negotiations taking place after a Yes vote will be seen as a significant blow to opponents of independence who have claimed that a Yes vote would see Scotland thrown out of the EU and having to re-apply.

Former Scottish Secretary Michael Moore claimed that an independent Scotland would find herself outside the EU having to negotiate its way back in. 

Better Together head Alistair Darling claimed that any application for EU membership could see Scotland waiting up to nine years before being allowed back in to the EU.  Speaking in February this year, the Labour MP - who leads the anti-independence alliance Better Together - said that an independent Scotland, "would face a lengthy application process to the EU."

The EC Official's response supports the conclusions of the Law Society of Scotland which, in August, published a report that also concluded that Scotland's membership of the European Union would encounter no legal barriers

The legal paper pointed out that Scotland already complies with EU treaties and acquis and therefore qualifies "in legal terms for EU membership in its own right." and added that "Scotland would have the capacity to be recognised as an independent state".

In July, leading academics and politicians from Denmark insisted that a newly independent Scotland would encounter no problems continuing its membership of the European Union.  MP Rasmus Helveg Petersen said Scotland would find the process of acquiring its own membership "fairly quick" and a "mere formality".

The Danish government official said: "It would be very clear [...] it could happen overnight."

The spokesman on foreign affairs for the Denmark's Social Liberals added:  "The criteria is very objective, Scotland would qualify.  If Scotland wants it, yes.  It would be a mere formality."

Earlier this year the Scottish Government published a list of 30 countries that have become independent since 1960, with an average of only 15 months from the referendum date to full independence.  The Scottish Government has set a timetable of twenty months within which it says EU membership can be negotiated.

Ministerio de Justicia. Como se pierde la nacionalidad

¿Cómo se pierde la nacionalidad?

Los españoles perderán la nacionalidad cuando:

• Estén emancipados, residan en el extranjero y adquieran voluntariamente otra nacionalidad. Pueden evitar esta pérdida si en el plazo de tres años declaran su voluntad de conservar su nacionalidad. La adquisición de la nacionalidad de países iberoamericanos, Andorra, Filipinas, Guinea Ecuatorial o Portugal no es bastante para producir por esta causa la pérdida de la nacionalidad española.
• Estén emancipados residan en el extranjero y durante tres años utilicen exclusivamente la nacionalidad que tuvieran atribuida antes de la emancipación. Pueden evitar esta pérdida si en el plazo de tres años declaran su voluntad de conservar su nacionalidad. La adquisición de la nacionalidad de países iberoamericanos, Andorra, Filipinas, Guinea Ecuatorial o Portugal no es bastante para producir por esta causa la pérdida de la nacionalidad española.
• Los españoles emancipados que tengan otra nacionalidad, residan habitualmente en el extranjero y renuncien voluntariamente a ella.
• En el caso de españoles que hayan nacido en el extranjero y sean españoles por haber nacido de padre o madre español/a también nacido en el extranjero, perderán la nacionalidad española si en el plazo de tres años desde la emancipación o mayoría de edad no declaran su voluntad de conservar la nacionalidad española

Los españoles que no lo sean de origen (por ejemplo, los que han adquirido la nacionalidad española por residencia) perderán la nacionalidad española si:

• Después de adquirir la nacionalidad española utilizan durante un plazo de tres años la nacionalidad a la que hubieran renunciado al adquirir la española.
• Cuando entren voluntariamente al servicio de las armas o ejerzan un cargo político en un Estado extranjero contra la expresa prohibición del gobierno.
• Cuando una sentencia declare que el interesado incurrió en falsedad, ocultación o fraude en la adquisición de la nacionalidad española.

Lugar donde realizar la declaración de conservación

Los Consulados españoles en el extranjero realizan funciones de Registro Civil.

La seguretat social catalana

La seguretat social catalana tindria un saldo positiu del 12,7% del PIB fora de la caixa única espanyola

Segons les dades d'un informe elaborat per la conselleria d'Economia amb les xifres de 1995 a 2010, el superàvit seria de 24.774 milions d'euros

VICENÇ MOLINÉ 

Barcelona | Actualitzada el 10/10/2012 21:15

Una seguretat social catalana fora de la caixa única espanyola hauria acabat l'any 2010 amb un superàvit equivalent al 12,7% del PIB. Aquesta és la conclusió d'un informe elaborat pel departament d'Economia de la Generalitat, que ha calculat la diferència entre les aportacions catalanes a la Seguretat Social i els organismes que en depenen i les aportacions que aquests han fet a Catalunya.

El resultat és que entre els anys 1995 i 2010 Catalunya hauria acabat amb un saldo positiu de 24.774 milions d'euros, l'equivalent a 3.384 euros per persona. D'aquesta manera, segons l'informe de la Generalitat, Catalunya, en el balanç d'aquest període, seria autosuficient per pagar les pensions, l'atur i altres prestacions socials.

La Generalitat també ha calculat el balanç de la Seguretat Social sense les aportacions de Catalunya i, de fet, seria Espanya la que tindria problemes, ja que tindria un saldo negatiu de 83.332 milions, 2.228 euros per persona.

Tot i que el balanç del període és positiu, en els dos darrers anys del període, el 2009 i 2010, el balanç va ser negatiu i Catalunya va rebre un 5% i un 8% més del que va aportar a la caixa única de la Seguretat Social.

Aquest desequilibri, però, també va tenir lloc a la resta de l'estat espanyol com a conseqüència de la caiguda de les cotitzacions. Per això, i per l'augment de les prestacions, les despeses a Espanya –sense comptar Catalunya– van ser un 21% superiors als ingressos l'any 2009. I el 2010, aquesta diferència va arribar fins al 25%.

A més, l'informe també conclou que la Seguretat Social espanyola sense les contribucions catalanes hauria patit un dèficit de 27.695 milions d'euros en el període entre els anys 1995 i 2008, tot i el període de bonança econòmica que va predominar aquests anys. Aquest dèficit va ser compensat per Catalunya, que va aportar més de 30.000 milions d'euros al llarg d'aquests 14 anys.

La Generalitat ha triat l'any 1995 per iniciar l'estudi, ja que abans la Seguretat Social també finançava la sanitat, cosa que dificulta la comparació entre despesa i ingressos.