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EU "would have to negotiate in good faith" with Scotland: Edward

17 December 2012

The only certainty about EU law in the event of Scottish independence is that it "would require all parties to negotiate in good faith and in a spirit of co-operation before separation took place", according to a former judge of the European Court of Justice.

Sir David Edward, the Scot who was the UK judge in the Court of First Instance and then the Court of Justice itself until he retired in 2004, has posted a blog with his analysis of the legal position in the event of a yes vote.

In Sir David's opinion, neither the contention of the European Commission, that the existing relationships between Scotland and the EU would come abrutply to an end at the moment of independence, nor that of the Scottish Government, that Scotland is already part of the EU and there would be a seamless transition to membership as an independent state, is correct.

"There would be no automaticity of result in either direction", he writes. "Since the situation would be unprecedented, and there is no express provision in the Treaties to deal with it, one must look to the spirit and general scheme of the Treaties."

It would not be relevant, he adds, whether Scotland and/or the rest of the UK would be treated as "successor states" in international law. Assuming that the splitting of the UK was carried out constitutionally, and that both parts wished to remain within the EU, "my opinion is that, in accordance with their obligations of good faith, sincere co-operation and solidarity, the EU institutions and all the member states (including the UK as existing), would be obliged to enter into negotiations, before separation took effect, to determine the future relationship within the EU of the separate parts of the former UK and the other member states".

Unless the negotiations failed utterly, the outcome would be agreed amendment of the existing Treaties, of which ratification would be necessary, and not a new Accession Treaty.

"Looking to the presumed intention of the Treaty-makers," he states, "I do not believe they can reasonably have intended that there must be prior negotiation in the case of withdrawal but none in the case of separation."

How and by whom negotiations would be conducted would also have to be determined in a spirit of good faith, co-operation and respect for the concerns of other Member States.

"In short," Sir David concludes, "in so far as we are entitled to look for legal certainty, all that is certain is that EU law would require all parties to negotiate in good faith and in a spirit of co-operation before separation took place. The results of such negotiation are hardly, if at all, a matter of law."

Click here to view the blog.

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