Since the referendum of 1st October, tensions have not stopped worsened between the Spanish government of Mariano Rajoy and Catalan independentists. In addition to this political crisis, many specialists of European law argue that an independent Catalonia, that would thus become a third country, would automatically be excluded from the European Union. Jean-Claude Juncker, President of the European Commission, has also warned that “Catalonia could not become an EU member the day after the vote”, it would have to follow an accession process to obtain membership status in the same way as the Member states which joined the EU after 2004.
For a country to access membership of the European Union, a unanimous decision of the Council of the EU is needed, and it is very unlikely that Spain would favour the opening of negotiations for Catalonia to become a member. With a view to avoiding the potential political, economic and social repercussions that the independence of a region would cause, both for Catalans and for the rest of European citizens, there is an urgent need to give up the speech of automatic exclusion of this territory from the European construction. We should instead look at the matter pragmatically, and find an answer which is both useful for the future of Europe and legal according to treaties.
A political dogma without foundations
The constitutional treaties of the European Union do not provide procedures to follow assuming that a territory of a member state demands secession. No word is spoken about this matter. Currently, the European Commission only relies on a political dogma, “the Prodi Doctrine”, whose name comes from the former President of the institution, Romano Prodi. This dogma establishes the principle according to which a new state born out of a secession from a member state would not automatically be considered as part of the Union. Romano Prodi had affirmed that “a newly independent region would become, as a result of its independence, a third country in relation to the Union and all treaties would not apply to its territory from the first day of its independence”.
Even though the accession negotiations would be made easier for the simple reason that this territory would already fulfill all the necessary conditions for European integration, this membership is very unlikely to come to a successful conclusion. The secession process is a problematic which is internal to one State, in this case Spain. Nevertheless, the exclusion from the EU of an independent Catalonia would call into question the European legal order and its hierarchy of norms in favour of Spanish constitutional order. Indeed, the expulsion of this territory of the Union, after an independence process in violation of the Spanish Constitution, would imply that remaining in the European construction completely depends on the respect of the Constitution of one of its member states.
The principle of “Successor States”
The principle of the integration of “successor states” was established by the Vienna Convention of 1978. This text implies that the “successor states” of a state, with a territorial continuity, are still under the treaties which were ratified by the state they stem from. Even though the Kingdom of Spain has not ratified this convention, it is possible to use this international law principle on behalf of European order. In virtue of this rule and in virtue of the recognition of international law by the EU, there would be no reason for Catalonia to be excluded from the EU.
We need to think first about European general interest and about the citizens’ shared interests: through this process, the European Union’s attractiveness would be reinforced. Today is an occasion to strengthen European identity, through the regions and the territorial entities, already recognized by the Committee of the Regions. It is also time to engage in a strong political speech in favour of a strong federalism for both States and regions.
We are all European citizens!
We tend to forget this too easily, but we are all European citizens, French, Germans, Greeks, Finns, Spanish… All European citizens have fundamental liberties guaranteed by the treaties, and fundamental rights attached to the Charter of Fundamental Rights of the European Union.
It is essential to remind the importance of these rights and freedoms within our society: they are inalienable. It is impossible to consider the suspension of the freedom of movement within the EU to Catalans who were European citizens. The exclusion of the territory from the EU appears thus difficult. Even though, at the current stage of European law, European citizenship is only associated to the nationality of a member state, excluding a territory which is part of the European construction means depriving its citizens from their European citizenship. If we want to build a European political and legal order, the development of a European citizenship, more independent from the nationality of its member states, may be desirable. In this sense, the exclusion of Catalonia appears counter-productive and with no consideration of European general interest.
Moreover, as no procedure is provided assuming that the creation of a new State would imply an exclusion, we must consider the many practical difficulties resulting from this situation: border control, currency, trade relations… It is in no one’s interest to build new borders in Europe.
The European Union must therefore commit in favour of the automatic integration of a new state born from the split of a member state. The respect of the principles and values of the European construction, and the consideration of the common general interest work towards this answer. A new accession process is both useless and a huge waste of time.
“Europe’s is strong because regional traditions are strong, but I would not want that the regional traditions set themselves as elements of separatism and fragmentation of Europe.” (Jean-Claude Juncker)
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