Scotland and the EU: Comment by CHRISTOPHE HILLION

Like many participants in this stimulating symposium, I am in agreement with several of Sionaidh Douglas-Scott’s contentions. But like some others, I am less persuaded by one of her conclusions: namely, that a treaty revision based on Article 48 TEU would suffice to codify an independent Scotland’s membership in the EU. While admittedly unprecedented, such a situation could not in itself warrant a complete disregard of EU membership rules, eg Article 49 TEU. As part of ‘the particular constitution and rules of the EU’, they should instead be applied, given their specific function in the treaties (1), albeit in a ‘pragmatic and purposive fashion’ in consideration of the existing and future ties between Scotland and the EU (2). While taking such a position, I intend to stay away, insofar as this is possible, from the moral and political discussion on independence, and to restrict myself to a (EU) legal argument.

(1) In two ways, Article 49 TEU is a lex specialis. It establishes the specific EU procedure for admitting a new state into the Union, precluding that ‘standard rules of international law govern the process’. Like Article 48 TEU and Article 50 TEU, Article 49 TEU belongs to the constitutional charter of the Union. Article 49 TEU is also a lex specialis relative to other EU provisions. Addressed to ‘[A]ny European state [that wishes] to become a member of the Union’, irrespective of whether the aspirant comes from within or outside, its exclusive function in the system of the treaties is to alter the state composition of the EU by admitting a new member, and to set out ‘the conditions of admission and adjustments to the Treaties on which the Union is founded, which such admission entails’. The specificity of Article 49 TEU is typified by the particular role that EU institutions play in the process ...

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