A European Future for Scotland?

von Tobias Lock

The fact that Scotland voted with 62% for the UK to remain a member of the EU whereas the majority of the overall UK electorate opted to leave the EU, raises important political and legal questions. Scotland’s First Minister Nicola Sturgeon announced on Friday that she intended ‘to take all possible steps and explore all options to […] to secure our continuing place in the EU and in the single market in particular’. She added that ‘it is therefore a statement of the obvious that the option of a second referendum must be on the table. And it is on the table.’ A first attempt at Scottish independence was rejected by a majority of 55% of votes cast less than two years ago.

It is therefore worth discussing a number of options for Scotland’s European future depending on whether it remains part of the UK or whether it becomes an independent country wishing to join the EU. This blog post should be understood more as a sketch than as an attempt at an authoritative answer.

A European Future as part of the UK?

If Scotland remains in the UK, the ‘reverse Greenland’ option could provide a solution. Greenland became part of the European Communities with Danish accession, but left in 1985 after a referendum whilst remaining part of Denmark. In technical legal terms, this was effected by way of Treaty change. The Greenland Treaty introduced a clause into the EEC and Euratom Treaties stating that ‘this Treaty shall not apply to Greenland’ and added Greenland as one of the overseas territories of the Member States, in what is now Annex II to the Treaties. The suggestion is that the same in reverse could be done for Scotland (and perhaps Northern Ireland), i.e. the United Kingdom could formally remain a member of the EU, but the Treaties would be amended to not apply to England and Wales.

While this is a theoretical possibility, it brings with it difficult legal and political challenges ...

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