The future relationship with the EU is a core issue in today’s debate about the independence of Catalonia. The slogan of the 2012 rally in Barcelona was “Catalonia, next state of Europe”, echoing the majoritarian desire within the independentist movement to be part of the EU.
The recently released White Book on the National Transition (very much in line with Scotland’s Future published last year by the Scottish Government) contains a specific 50-pages report on the different scenarios for integration into the EU (the report considers 4 different scenarios ranging from swift accession to exclusion sine die). Both the Catalan government and the independentist movement expected that a victory of the “yes” in the Scottish referendum would had paved the way for a model of smooth accession to the EU. As this didn’t happen, Catalonia will need to make its own way.
In a nutshell, the White Book considers two premises:
- There is no provision in EU treaties on the secession of a territory from a member state (even if Europe has witnessed the emergence of a number of new states since 1990s). There are provisions to join (art. 49TEU) and to leave (art. 50TEU) but not “to stay” as a new state, so to speak.
- The flexibility and pragmatism of the EU. As Graham Avery recently put it, “the policy of the European institutions is not to have a policy” (deliciously ironic, since Avery writes as a Senior Advisor of the European Policy Center). As he goes on, the implicit policy seems to be “initial reluctance followed by pragmatic acceptance, provided that the process can be considered as constitutional”.
Premise one focuses on the law, while premise two emphasizes politics. The statements by EU authorities can also reflect this oscillation. This is notably the case of former EU Commission President Mr. Barroso. In a written answer given on August 28th 2012 on behalf of the Commission, Barroso confirmed “that in the hypothetical event of a secession of a part of an EU Member State, the solution would have to be found and negotiated within the international legal order. Any other consideration related to the consequences of such event would be of a conjectural nature”. Pragmatism to its fullest.
In a letter addressed to Lord Tugendhat only 3 months later (10 December 2012) he stated that “if a 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”. Leges sunt servanda.
So who will play the game? In Spain, that’s lawyers, for sure. There are figures no one seems to pay much attention: last year, there were more than 42,000 registered lawyers in Madrid and more than 23,000 in Catalonia. With more than 147,000 lawyers registered in Bar associations, Spain ranks number two in Europe when it comes to lawyers per 100,000 inhabitants (only second to Luxembourg, which hosts the European Court of Justice and a large banking system). The figures do not include law graduates and legal professionals not paying fees to the Bar.
Most popular questions these days on the public debate on Catalan independence: Is this move constitutional or unconstitutional? Should the [Spanish/Catalan] government appeal? On what grounds? And what do EU Treaties say? The debate has been hijacked by endless legal arguments, and a large army of lawyers make their legal points in cabinets, in parliament, in courts, and in the media. Law has engulfed politics. Leges prevail over pacts.
Dear lawyers, fair enough. But… knock knock Europe… anyone else in the house?