In a few weeks, Catalonia will hold a regional election that some political groups are tying to a central issue of debate: the possibility of launching an independence process for the region. As part of that debate, a discussion emerged again just a few days ago over whether a hypothetically independent Catalonia could remain part of the European Union.
As a legal expert in EU issues, in public international law and in constitutional law, and as a citizen who believes in and works towards the great political project of European integration, I have to say that those who hold that the European Union would accept an allegedly independent Catalonia into its fold are demonstrating their ignorance of both applicable legislation and of the political realities in the EU’s member states.
Pursuant to European law, in the event that Catalonia should declare itself independent and invoke article 49 of the Treaty of the European Union to “apply to become a member of the Union,” its application could only be accepted if all three conditions set out in the article were met:
1.— being a “European state”;
2.— “respecting the values mentioned in article 2” (of the above-mentioned Treaty);
3.— taking into account “the conditions of eligibility agreed upon by the European Council”: these are known as the “Copenhagen criteria” because they were adopted by the European Council in that city in 1993.
Diplomatic discretion is one thing, and political realities another”
In order to be a European state, first you need to be a state. In this case, Catalonia would need at the very least to be acknowledged as a state by the entirety of the EU’s 28 member states. In fact, the representatives of the 28 members who sit on the Council would have to issue a verdict “unanimously” in the preliminary phase of the application process (same article 49).
In the event that member states should have to issue an opinion, they could only confirm that they cannot grant acknowledgment, and thus must consider the applicant ineligible.
In effect, according to section 2 of article 4 of the Treaty, each member state has sole power to decide on “fundamental structures, political and constitutional, inclusive of regional and local self-government.” The same section adds that, whenever necessary, the Union “shall respect their essential State functions, including ensuring the territorial integrity of the State.”
In other words, this means that under EU legislation, members would be unable to recognize as a state any entity that depends on the jurisdiction of another member state and that unilaterally declares itself “independent” in violation of that state’s Constitution. Thus, such an entity, after failing to be recognized by the EU’s member states, could not apply for membership.
Nor would the other two conditions set out in article 49 be respected, either.
That article makes reference to the Copenhagen criteria, which specify that the addition of a new member “requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights, respect for and protection of minorities.”
Article 49 also demands respect by the applicant for the “values mentioned in Article 2,” including the “rule of law.” An entity that declares unilateral independence, violating the law, most particularly the national Constitution it must uphold, will be in violation of this fundamental condition. This would be the case in Catalonia in the light of the Constitution of the Kingdom of Spain currently in force.
In effect, in terms of Spanish constitutional law, the situation could not be any clearer. According to section 2 of the preliminary title of the Constitution of December 27, 1978: “The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards; it recognizes and guarantees the right to self-government of the nationalities and regions of which it is composed and the solidarity among them all.”
In order to be a European state, first you need to be a state”
In public international law, these rules abide by the fundamental principles of democracy and the rule of law. A sub-state entity’s so-called “right to decide,” to use the expression favored by Catalan secessionists, is not recognized by international law. The right of nations to decide their own destinies is associated with criteria and situations that in no way relate to modern Spain.
The ruling that sets a precedent for this predicament was handed down by the Supreme Court of Canada on August 20, 1998. In sections 138, 151 and 154, the Supreme Court proves that the right to self-determination only exists in international law if certain conditions are met. What emerges is that this right does not exist ipso facto for any entity, and that this right in any case does not exist in a democratic state that respects its constitutional structures, human rights and the rights of minorities, save if it is exercised within the bounds of the Constitution of the state in question.
On the political front, some jurists – no doubt harboring good intentions – think that some institutions within the EU or within some member states could pressure the Spanish government into “showing more flexibility” and accepting a review of the Spanish Constitution that could address the steps of a potential secession by Catalonia.
Nothing could be more illusory.
From the point of view of the leaders of many member states, including the United Kingdom, France, Italy, Belgium and others, nobody is going to defend that position, which would be tantamount to risking opening the door to a contagion effect and creating political trouble at the domestic level; and that is without mentioning the states that refused to recognize Kosovo for similar reasons (Cyprus, Greece, Romania, Slovakia).
Expanding the European Union via the breakup of one of its member states poses a risk of instability whose potential advantages could never compensate for the price to pay in terms of having to modify the composition of the institutions and the added difficulty in decision-making.
It is evident that, politically, it is absolutely illusory to expect political support from the EU or from its member states for a situation that would only entail negative aspects for them.
Diplomatic discretion is one thing, and political realities another.
Jean-Claude Piris was Director-General of the EU’s Legal Service between 1988 and 2010.
Translation by Susana Urra