If EU law is followed, Scotland will join the EU just before Serbia

Our Director Mats Persson writes on his Telegraph blog:

The UK must be the first country, with the forthcoming Scottish and EU referenda, to simultaneously have an intense political debate about the difficulty or otherwise of both joining and leaving the EU. Traditional assumptions are being bent in all sorts of directions, with senior UK politicians approvingly citing EU Commission President Jose Manuel Barroso for suggesting it would be “very difficult, if not impossible” for an independent Scotland to join the EU.

Like Catalonia in Spain, rightly or wrongly, Alex Salmond’s case rests in part on the argument that "if we leave one club, we can safely join another." It’s an insurance policy against the uncertainty which is a such a killer in any referendum to change the status quo. So is Barroso right?

Iceland’s accession talks with the EU – which were terminated since the Icelanders turned cold on the idea – would, in purely legal terms, come close to those of Scotland. Iceland is part of the European Economic Area, and therefore almost an EU member. Scotland has been an EU member for 40 years. Both would face tricky negotiations, like protecting their fishing industries.

There are basically six steps (by my rough categorisation). Salmond’s biggest problem is that for half of these, each of the 28 EU states, including rUK and Spain, has a veto:

Step 1 – Scotland applies to join the EU: Under EU law, it would have to be an independent country to apply.

Step 2 – The European Commission “screens” Scottish law to see if the country is compatible with EU membership – this won’t be an issue.

Step 3 – EU governments decide whether to approve Scotland’s EU application. All EU states have a veto.

Step 4 – The EU and Scotland begin negotiations over individual EU policy areas. There are now 35 so-called “accession chapters” covering everything from the euro to employment law to the EU budget. Each country has a veto over the decision to both open and then to close every single chapter – ask Turkey how easy that has proven (read: Cyprus and France). It’s in these talks that Salmond would need to deliver on his pledge to get an opt-out from the euro, as well as replicating the UK’s special deals on the EU budget, crime and immigration and passport controls.

Step 5 – When the 35th chapter is agreed, the Accession Treaty with the Scottish terms of entry is drafted.

Step 6 – This Treaty must then be ratified by the Parliaments of each EU country and the European Parliament. If one says no, the deal falls.

Iceland officially applied to the EU in June 2009. In 2013, when the bid was dropped, it had completed about a third of the negotiations. So if the letter of the law is followed, Scotland might join the EU just before Serbia, several years from now.

However, in the EU, political expediency tends to trump the letter of the law. I suspect that, given the stakes, if the Scots do pull the trigger, the EU will engage in the kind of legal acrobatics that it’s proven so good at in order to fast-track an independent Scotland to membership, with or without a euro opt-out (though, as Andrew Lilico has pointed out, there might be a range of practical currency issues).

No matter what, it would be a mess. In truth, we have little idea what’s going to happen if Scotland goes independent. And I suspect that in itself undermines Salmond’s case.

Let's tone it down a notch: Comparing the UK and German debates on EU migration

No one picking up a UK paper will have failed to notice that there is some concern over EU migration on the British isles, with the debate being triggered by the end of so-called "transitional controls" for Romanian and Bulgarian workers (the countries joined in 2007).

As we've argued repeatedly, EU free movement has on the whole been beneficial for both Europe and the UK, but the issue must be handled with much care, given its exceptionally sensitive nature and the practical impact it can have on public services and certain sectors of the labour market.

But there's also a false perception in the UK that all of Europe wants to come to Britain to enjoy its superior welfare system. This is far from the truth and secondly, the UK isn't the only country that has concerns over EU migration. It is, however, the country in which the debate is the most hysterical. Philip Collins looks at this in today's Times.

Speaking in Parliament earlier this week, Work and Pensions Secretary Ian Duncan Smith said there was a “crisis” over rules on EU migrants’ access to services and welfare, particularly in light of the expiry of transitional controls on migrants from Bulgaria and Romania at the end of the year. The issue definitely needs to be looked at, and there are several things the UK needs to do (see here). The Commission also needs get its act together and drop its own-goal challenge against the UK's "right to reside" test - the test is a political hugely important filter to guard against welfare abuse. But crisis?

Duncan Smith did, however, rightly point out that other EU member states shared some of the UK’s concerns, specifically that “Germany has woken up at last to the reality that it might face a large net migration”.

So what is the nature of the corresponding debate in Germany? Well, there's a genuine concern. A recent position paper by the German Association of Cities generated a lot of coverage as it focused specifically on so-called ‘poverty migration’ from Bulgaria and Romania, particularly those from a Roma background. The report warned that these migrants arrived in cities already affected by relatively high unemployment and with severely stretched public finances, and that despite the transitional controls in place, migration from Bulgaria and Romania had increased six-fold since 2006.

In terms of the public response, German Interior Minister Hans-Peter Friedrich (CSU) recently warned that:

“Abuse of free movement could be explosive for European solidarity. If people in Germany feel that their solidarity and openness is being abused and our welfare system is looted then there will be legitimate anger. The message for the EU Commission is clear: Brussels has to take stronger account of situation of the local population in its decision making process.” 

Justice Minister Sabine Leutheusser-Schnarrenberger (FDP) has also stressed that "Many Roma flee their homes because of discrimination and resulting poverty… Poverty-related migration must be addressed at its roots." Germany has also said it might veto Bulgaria and Romania’s entry to the border-free Schengen zone, which the UK is not part of.

Clearly, Germany could be an ally for the UK in terms of instituting clearer and more transparent rules on EU wide migration and access to welfare which are necessary to restore public confidence in free movement, as we’ve argued in our report on the subject.

However, on the whole, the debate in Germany has been far more measured than in the UK, with substantially fewer scare-stories on the subject from the press and politicians. For example, the often sensationalist Bild ran a feature on Roma migration earlier this week which was relatively balanced, stating that “there has been no mass immigration” and that migrants tend to seek employment, not benefits.

And that's what UK politicians and media need to remember: the overwhelming evidence suggests EU migrants come to Britain to work, not take advantage of the system.

Would EU law introduce border controls with Scotland?

The last time there was a formal English border with Scotland was under the Romans, although for some parts of the middle ages both England and Scotland may have wished for one. Since then, it's pretty much been come and go as you wish. Well, that may - at least hypothetically - soon change.

This week saw the debate over Scottish independence heating up again, in turn throwing up a number of questions about whether Scotland would have to negotiate new membership terms with the EU, and if so, how this would work. Most discussions have focussed on the euro - which all EU members that don't have an opt-out (which only the UK and Denmark have at the moment) - are required to join.

But there's another interesting twist. You might assume that if Scotland again became independent, the current open border would continue. Well, you could be wrong. This is because while the UK has a specific opt-out from the EU's common travel area (the Schengen agreement) under, the Amsterdam Treaty incorporated the Schengen agreement into EU law (Article 77, previously it was a stand alone agreement), meaning that whoever signs up to the full body of EU law, also signs up to Schengen. In other words, similarly to the euro, Scotland would not automatically have an opt out.

The EU considers that all states should join the borderless EU. This would pose a problem for an independent Scotland as the UK and Ireland have their own Common Travel Area and external borders - to help facilitate travel over the Northern Irish Border. If Scotland was in Schengen, England (and the rump UK and Ireland) would need to apply an external border and passport checks on the new frontier.

That is if Scotland was in the EU at all. The UK's membership does not extend to former members. Scotland would therefore have to negotiate for itself an opt-out from Schengen as a part of its accession process from outside the EU.

In addition to a Schengen opt-put, an independent Scotland would also have to negotiate:

• Opt out from the Euro - so it could keep the English (or Scottish?) pound (the SNP says it want this option until the time is right to join the euro).
• Possibly its own budget rebate so it is not unfairly penalised
• A fair deal on fishing.

Plenty to play for in Europe, in other words, should Scotland wish to go down that path...

Now Turkey is raising concern over democracy in the EU

This is a sign of the times.

In an interview with EUobserver, Turkey's permanent representative to the EU, Selim Kuneralp, made some interesting comments on the future of the eurozone . In particular, he said that, although the Franco-German proposals to strengthen central control over national budgets, which could steer the eurozone "in the right direction", they also risk undermining democracy.

He argued,

"In an election campaign, you have one party that says, 'I'm going to reduce taxes and invest in this or that, to build nuclear power plants or spend money on renewable energy, build more schools and better hospitals.' And the other party says, 'I'm going to do everything this guy is promising, but more.' So you have a race on who is going to spend more. But if you have this kind of mechanism [of central control] they won't be able to do it. That means you would have such a loss of sovereignty as to make election campaigns meaningless."

Clearly, Mr. Kuneralp does have a strong point. Perhaps EU leaders should rememebr the 'Copenhagen criteria' - the rules on democracy (and various other things) that countries wishing to accede to the EU have to fulfill - as they're trying to deal with the eurozone crisis...

Is Turkey going cold on EU membership?

As Europe limps along economically and struggles to speak with a single voice on… well almost anything, and at a time when the EU's two flagship projects - free movement and the single currency - are coming under massive strains, the contrast between the bloc and perennial candidate country Turkey could not be starker.

In 2010, the EU-27’s GDP grew by 1.8%, while in comparison, Turkey’s GDP grew by 8.2% over the same period (and by a phenomenal 150% since 2003), with steady growth of 4.6% projected for 2011. In parallel to its strong economic performance, Turkey is also becoming increasingly self-assertive on the world stage, most notably when, together with Brazil, it took the diplomatic initiative over the Iranian nuclear programme last year.

It now seems as if the increasingly confident Turks are turning against the idea of EU membership. Only 38% expressed support for the idea last year, compared with 73% in 2004. That's a spectacular drop.

Should this be of concern to the EU? Most definitely.

Irrespective of the pro and cons of Turkey joining the EU, Brussels' approach to this issue really represents the worst of all worlds. By constantly sending mixed signals about whether or not Turkey is in fact welcome - the EU risks antagonising a country that it really needs on side. Do you really want to tick off a country that is up and coming, possessing a huge market (that Europe's struggling economy desperately needs) - and whose geo-strategic importance is second to none?

France in particular, but also to some extent Germany, have not exactly encouraged the country's attempt to gain full EU membership despite the fact that Turkey has been an official candidate country since 1999 and in accession talks since 2005. You'd forgive Turks for feeling insulted by being messed around by the EU. This is now reflected in Turkish public opinion.

The problem with the EU's mixed-signals approach is that it could push Ankara in to the arms of far less pleasant countries, such as Iran. That would be a spectacular own goal for Europe.

It is also possible that full EU membership is becoming less appealing for the Turks for other reasons. A union in which debt is being past around and several countries are on the dole - and control over a country's political and economic future is partly in other peoples' hands - just isn't that attractive. While many in Europe are worried they would end up having to subsidise Turks, the idea of being asked to bail out troubled eurozone members (least of all Greece!), can hardly be appealing to the Turks either.

But there's another side to this which is often overlooked. Just as the EU has in the past acted as a driving force behind modernisation and reform in Turkey (albeit with mixed results), so Turkey could contribute to some badly needed reforms in the EU. An EU which has Turkey as a full member simply would have to withdraw from some crucial policy areas where it has over-stepped its mark in the past. Justice and Home affairs for example, where EU integration has made some quantum leaps over the last few years. Or the Common Agricultural Policy, which would probably implode if Turkey were to join, or the Structural Funds, or the excessive use of Qualified Majority Voting (as Turkey would instantly become the most powerful country in the Council of Ministers due to its size). In other words, Turkey's size and composition could in fact be a strong argument in favour of the country joining - at least for those of us who want to see some real and radical EU reform.

In fact, the UK of all member states ought to consider the strategic benefits of using the issue to build momentum for institutional reform within the EU. The EU could also draw lessons from Turkey’s dynamic economic performance which will be crucial to the continent’s future prosperity, especially in the context of Europe’s looming demographic crisis. Clearly, there are significant problems with the Turkish candidature that would have to be overcome, from the Cyprus issue to the status of the Kurdish minority, so it is important not to jump the gun here.

But for politicians - in the UK and beyond - ruling out the prospect of Turkey of tomorrow joining the EU of tomorrow would be a pretty serious mistake.

Planning underway to integrate Lisbon into Croatian accession treaty

On the blog of Belgian daily De Standaard, its EU correspondent Bernard Bulcke has some inside information on the plans to get the Lisbon Treaty passed.

It reports that a “very reliable source” has confirmed that “if the Lisbon Treaty hasn’t been ratified by the end of 2009, the Treaty will be integrated into the accession treaty for Croatia”.

It adds that “the probability of this scenario increases as the chances of Lisbon just being ratified through a second Irish referendum diminish”. This means that “the Irish would have to block the accession of Croatia in order to remain able to block Lisbon.”

And not only the Irish, because, as the article says, it is a “happy coincidence” that “the countries that aren’t that excited about the new treaty are exactly the greatest proponents of further enlargement of the European Union”, citing Poland and the Czech Republic, neither of which has ratified Lisbon.

The article reports that by 2009 all negotiations with Croatia should be concluded, but that this doesn't automatically guarantee Croatian entry. French President Sarkozy and German Chancellor Merkel have already indicated that the approval of Lisbon will be made a condition for enlarging the EU, effectively blocking the accession of Croatia until this happens.

Sarkozy’s claim that it would be impossible to enlarge without Lisbon is dismissed as “legal nonsense” by the piece, given that accession treaties always adapt the EU institutions to take account of new members. However, as the article points out, the claim nonetheless serves as a “political threat” directed at Ireland, Poland and the Czech Republic.

Integrating the Lisbon Treaty into the Croatian accession treaty certainly would make this 'blackmail' strategy against future enlargement carry more weight in terms of persuading more reluctant member states to ratify it.

And as we've argued before, opting for this plan will also mean that supporters of the Lisbon Treaty may be able to circumvent the Irish electorate. The "Croatian Accession Treaty plus Lisbon" could be ratified through the Irish Parliament, with a referendum held on various opt-outs. Even if the Irish referendum on the opt outs returns a no vote, the Constitution / Lisbon Treaty will still come into effect for everyone else.

On the other hand, the Croatian option would mean effectively re-ratifying Lisbon in other member states. This would be particularly unwelcome for a weakened Gordon Brown, especially if it happens in early 2010 - just before a General Election.