Under EU law, can Scotland remain or be re-admitted to the EU after Brexit while still a part of the UK?

Question

Newspaper reports yesterday said that the Scottish First Minister and leader of the Scottish National Party, Nicola Sturgeon, had lobbied EU members to support Scotland's remain bid.

After Scotland voted 62% to 38% to stay in the EU, she said she planned to begin immediate discussions with the European commission to “protect Scotland’s relationship with the EU and our place in the single market”.

However more recent reports said that the EU had rebuffed this suggestion.

But the First Minister was told that even if Scotland gained its independence it would still have to reapply to be part of the EU again. In a briefing note sent to MEPs by the European Parliamentary Research Service, it confirmed that a member state ‘cannot… remain in the EU if the member state itself withdraws’, according to Mail Online. However, there could be a loophole. It has been suggested Scotland could retain membership through a ‘reverse Greenland option’.This came about after Greenland voted to breakaway from the EU in 1982, even though its residents are Danish and Denmark remains a member.

My question is what exactly is Scotland's position under EU law?

Subsidiary question: what would EU law stipulate about Scotland's currency in these circumstances?

(Note that this question is not quite the same as the earlier question "What will Scotland's status in the EU be, assuming Scots vote for independence?", since that question concerned the situation if Scotland becomes an independent state. This question refers to the current position in which Scotland is part of the UK.)

Answer 1

The answer is a bit similar to the answer to Could the UK re-join EU after leaving? Legally, there is nothing in place to grant automatic EU membership or some sort of smooth path to it. Except if all EU members agree to reform the treaties (which has become increasingly difficult in the last decades), Scotland would have to use the regular path to admission.

On the other hand, Scotland is part of the EU today, which means it would not need anything like the reform process other new members have to undergo. After all, it already applies EU law in most relevant aspects.

Such a new membership would also require the consent of every current member. But given Scotland's economic position, I would not expect that much opposition, even from countries generally reluctant towards further enlargement and I don't think the (warranted) skepticism regarding the chances of current candidate countries like Serbia or Turkey should apply to Scotland.

However, one issue that came up in earlier discussion of Scottish independence and possible EU membership could come up again: Some current member states like Spain seem very reluctant about granting membership to breakaway regions, because it could foster pro-independence tendencies from the like of Catalonia or the Basque country (where many people would be keen on leaving Spain if EU membership was guaranteed to make things easier for the new country). It's unclear whether Brexit would make any difference in this respect (Mariana Rajoy already declared publicly that it did not as far as Spain is concerned).

Answer 2

The Greenland example indicates that EU law is quite amenable to fudging situations. It's also important to remember that the EU is a creation of treaties and can be amended by treaties. A unanimous agreement of the members can change anything. If, as is quite likely, there is an agreement that needs to be made about the UK's status after Brexit, it would be natural to include a subsection there about the status of Scotland.

From there, all else is politics. But it seems highly unlikely that an organisation committed to "ever closer union" would force out a region that wanted to negotiate to remain in.

Answer 3

The EU has informal programs for the "European regions" and Scotland is composed of 6 such regions. However, when it comes to the basic EU law, all of Scotland is just a somewhat random part of the U.K., currently an EU member state.

The EU obviously cannot separate Scotland from the U.K. in any way, as the status of Scotland is a purely internal affair of the U.K. Scotland couldn't remain in the EU without its recognized independence and statehood. It could only apply for a membership in the EU if it gained independence and was recognized by all member states of the EU as an independent country. But the admission process would have to start from scratch, just like for Serbia and other countries in the queue. Such an admission – which would also require the approval by all EU member states – is generally considered virtually impossible.

Even in the most favorable case in which Scotland became the only successor state of the U.K., and I don't really believe that anyone in England would allow such a thing, a new process of readmission would almost certainly have to begin.

Also, there's no way in which Scotland could become a part of the Eurozone. The Eurozone itself is widely considered a frozen project that won't expand for many years. The new member states must obey many conditions and even the counties that clearly obey all the material conditions such as my homeland of the Czech Republic are being told No. (Which is just a way to mask that the Czech Republic itself and other countries don't seem to have any desire to join the Eurozone these days.) However, it's plausible that Scotland could be allowed to use the Euro as a non-member, in the same way as Montenegro in former Yugoslavia.

Strategically, despite the higher support for the EU, the attempts of the hypothetical independent Scotland to join the EU could be dangerous for many reasons, especially if England and Wales weren't really supportive of the plan. Scotland would be divided from the rest of the EU by England. Many basic things could be rather complex and the influence of England would be huge, anyway.

People outside the U.K. shouldn't generally intervene into these affairs but if someone in Scotland expects that all the EU countries will actively work on the reincorporation of Scotland against the wishes of England and Wales, I am pretty certain that he is wrong. In the end, the support for the EU wasn't overwhelming even in Scotland. Whatever happens on the U.K. territory should be more or less approved by the main political institutions of the U.K. and its basic parts.

Answer 4

The U.K. has not yet exited the EU. If the Scottish People decide to leave the U.K. in favor for the EU befor the U.K. has actually exited, then perhaps Scotland will not leave the EU in first place. But I'm not sure if this possible since Scotland became a member of the EU as a part of the U.K. Or perhaps it is possible to find a separate agreement with Scotland so that it does not have to exit with the U.K. This may be possible, especially since the British statesman are not in hurry to begin the actual exit process.

But I don't think it is possible for Scotland to stay in the EU and still be a part of the U.K. New treaties and agreements will be being signed by the U.K and the EU. If Scotland is still a part of the U.K. at the time of signing, then that new agreements will pertain for Scotland too.