07 Oktober 2017

Catalan secessionism faces the European Union

Catalan secessionists have constructed a hypothetical place for an independent Catalonia within the EU on the basis of three explicit assumptions.1)See on this issue Carlos Closa (ed.) Secession from a Member State and Withdrawal from the European Union;Troubled Membership, Cambridge University Press 2017 They assume, firstly, that the EU will treat their demands sympathetically. This first assumption explains the calls from various political actors, including the Mayor of Barcelona, Ada Colau, the Catalan Minister of Foreign Affairs, Raúl Romeva and even the European Parliament’s Green Group who coincided, prior to 1-O, in their request to the Commission for mediation. And after the unfortunate events of 1-O, the Catalan government has formally called for a European mediation. Secondly, secessionists assume that a hypothetical independent Catalonia would have the option of joining the EU even in the case of a unilateral secession2)A. González Bondía,‘ La Unión Europea ante el reto del derecho a decidir‘, in E. Segarra, (ed.),‘ Is there a right to decide? Questions and answers on the open process in Catalonia‘, (Tibidabo Edicions 2014), p. 123; J. Ridao Martín,‘ La Unió Europea i els nous Estats sorgits per secessió dels seus membres. Una hipòtesi per Catalunya‘, Revista Jurídica de Catalunya 2014, vol. 113, p. 331; J. Ridao Martín and A. González Bondía,‘ La Unión Europea ante la eventual creación de nuevos Estados surgidos de la secesión de Estados miembros‘, Revista de Derecho de la Unión Europea No. 27-28 (2014) p. 363 or that, finally, it could remain in the EU and become a new member state without a solution of continuity in the case of a secession agreed with the Spanish state.

A rigorously minimal interpretation of the TEU questions these three assumptions. Firstly, the Treaty obliges the Commission in particular and the EU in general to respect the territorial integrity of their states and the exercise of their essential functions, including law and order and the maintenance of security (art. 4.3). An intromission or action from the Commission without the express consent of the Spanish authorities could easily be interpreted as an infringement of the treaties. Alternatively, secessionists have reclaimed EU intervention on the assumption that Spanish authorities could be violating the values of Article 2, specifically by infringing on the right to freedom of association and expression, and call for respect for the value of democracy contained in the same place to justify EU intervention. As this last argument underpins the proposal on the compatibility of unilateral secession with EU accession, I will refer to it below.

Defenders of unilateral secession appeal to the democracy value in Article 2 to argue for a compatibility of this process with EU membership: since the EU recognises this value in Article 2, they derive a duty to therefore recognise a (majority) democratic decision from a given polity. However, this thesis contains a logical trap: none of its proponents have explained the source of this obligation. What obliges a political entity to recognize the effect of decisions made by a third party if this obligation has not been formally established beforehand? To properly weigh the implications of this expectation, one could think back to the effects on the EU when the Greek citizens rejected the terms of their rescue package by referendum (and compare this with the treatment of the Brexit referendum, covered by an explicit provision in the treaties).

The most common counterargument to the invocation of the democratic principle is the principle of legality (inserted in the broader notion of the rule of law). Thus, Spanish central authorities have consistently adhered to this principle. Facing the (apparent) contradiction between these two values, authors close to the secessionist theses (see footnote 2) argue that, in case of opposition between the two values (sic), the EU would have to come up with a solution. However, this solution contradicts the nature of the Union itself, which rests on an integral understanding of its values, that is, they are not conceived separately and even less in opposition. The test of the unacceptability of opposing values in the European context as a mechanism to justify specific measures comes in the way in which the European Commission has dealt with the Hungarian and Polish governments since 2012 and 2015 respectively. Both of them have undertaken „illiberal“ (Orban dixit) political reform projects, invoking precisely their electoral majority (democracy). The Commission has invoked instead the respect of the „rule of law“: the existence of an electoral majority does not permit the violation of fundamental principles of community law.

Assuming (as a mere intellectual exercise) that the Commission would lend itself to the exercise of arbitrating between principles, the intended unilateral secession would have to satisfy the legality test. The laws of the Catalan Parliament that are the foundations of that process (such as the referendum law and the transitional law) would have to face the test of compatibility with European standards. Regarding the referendum law, the Venice Commission has already stated (informally, given that no Spanish authority has asked for it) the need to comply with the Constitution and the law. Hence, it is more than dubious that an independent body certifies as compatible with the principle of legality a law that contains several vices: it violates not only the Constitution but also the Catalan Statute of Autonomy itself and it has been adopted through a procedure of dubious validity and circumventing the recommendations of the Council of Statutory Guarantees itself. Nevertheless, secessionist may be willing to put to test the international validity of their own legislation. The final argument relating to the unfeasibility of a unilateral secession within the EU refers to the principle of loyal cooperation between the states that the treaty requires: taken in its most extreme interpretation, one could conceive that the hypothetical recognition by members of the Union of a state arising from unilateral secession clashes with the EU Treaty, and the original state could actively claim respect for that principle.

Finally, the third assumption of secessionist refers to the possibility of a seamless accession in the case of a secession agreed with the original state. Although the Commission has already conclusively denied such a possibility, it is worthwhile to revisit the normative arguments which were firstly discussed at length in the Scottish case. These referred, on the one hand, to the democratic principle (i. e. the EU’s obligation to recognise a democratic decision) and, on the other hand, to the concern that citizens must not be deprived of their rights. On the first point, the above-mentioned argument applies: no matter how democratic it may be, a group of citizens has no justification for imposing on third parties the consequences of their (majority) decision if this obligation has not been formalized previously. The possible loss of rights has more substance. Of course, this results and is a consequence of the decision taken for those who make it. Pretending to ignore consequences of (democratic) actions leads to a “Peter Pan” model of democracy, without responsibilities. Admittedly, however, a depriving of rights is not the best standard of behaviour (even when it is a consequence of the acts of the rights-holders). One might think that the EU could provide transitional solutions to maintain the rights of these people, but under no circumstances can this amount to recognising statehood rights or the total maintenance of the acquis of EU membership for newly independent states. Acquiring sovereignty has the unsympathetic side of having to win a seat in the club of states.

References

References
1 See on this issue Carlos Closa (ed.) Secession from a Member State and Withdrawal from the European Union;Troubled Membership, Cambridge University Press 2017
2 A. González Bondía,‘ La Unión Europea ante el reto del derecho a decidir‘, in E. Segarra, (ed.),‘ Is there a right to decide? Questions and answers on the open process in Catalonia‘, (Tibidabo Edicions 2014), p. 123; J. Ridao Martín,‘ La Unió Europea i els nous Estats sorgits per secessió dels seus membres. Una hipòtesi per Catalunya‘, Revista Jurídica de Catalunya 2014, vol. 113, p. 331; J. Ridao Martín and A. González Bondía,‘ La Unión Europea ante la eventual creación de nuevos Estados surgidos de la secesión de Estados miembros‘, Revista de Derecho de la Unión Europea No. 27-28 (2014) p. 363

SUGGESTED CITATION  Closa Montero, Carlos: Catalan secessionism faces the European Union, VerfBlog, 2017/10/07, https://verfassungsblog.de/catalan-secessionism-faces-the-european-union/, DOI: 10.17176/20171007-105615.

6 Comments

  1. Steven Verbanck Mo 9 Okt 2017 at 22:14 - Reply

    Are the independists as pro-EU as is generally assumed? ERC voted against the Lissabon treaty (and against the Constitution for Europe) and what does CUP think about the EU?

  2. Carlos Closa Mi 18 Okt 2017 at 16:44 - Reply

    Dear Steven Verbanck
    Thank you for your comment. ERC voted indeed against the Lisbon Treaty and the CUP contains, in its manifesto, an explicit reference to abandoning the EU. I personally believe that ERC is anti-EU, though.

  3. robert dunford Mo 23 Okt 2017 at 14:46 - Reply

    catalonia independence
    spain is taking away catalonia human rights .freedom and democracy.which is the right of every country.without this which is international and supranational laws of united nations.without this you are out of the nato alliance .and also the european union which every country in europe must belong to american congress has disgust this.american congress have influence that will help catalonia win in independence.look up email address /americanforcataloni@gmail.coma.because of the above eu will be forced to act for its citizens catalan to take spanish government to law.spain autonomous region was never obtain-catalonia has the highest autonomous territories in the world .america said we have declaration of independence why should catalan be kept out of this.new york times newspaper are shouting about this.scotland are backing catalonia defence committee .also catalan went to ireland to help them with there independence and won.reason why ireland are backing them.

  4. robert dunford Mo 23 Okt 2017 at 14:48 - Reply

    i hope like america you can help.and scotland .ireland

  5. robert dunford Mo 23 Okt 2017 at 14:49 - Reply

    thank you for reading this

  6. Marc Creus Mo 5 Mrz 2018 at 10:53 - Reply

    Dear Prof Closa Montero,
    First, what is your evidence for believing „that ERC is anti-EU“? Is this comment genuine, a mistake or is it malicious?
    Second, I have a serious issue with the very incomplete biography shown, since potential conflicts of interest are not referred to, e.g. a search in the internet shows that Prof Closa Montero is associated to institutes paid by the Spanish government; has apparently participated in the Venice Commission (which is referred to in the article) and collaborates with the ferociously anti-independence Madrid „think-tank“ Instituto Elcano, which has very obvious connections to the spanish government. All opinions are welcome, particularly informed opinions of eminent professors. However, this should not be to the detriment of academic and ethical standards of openness and disclosure of potential conflicts of interest. I suggest that „Verfassungsblog“ incorporates at least links to complete biographies and a section of potential conflicts of interest.
    Thank you.

Leave A Comment

WRITE A COMMENT

1. We welcome your comments but you do so as our guest. Please note that we will exercise our property rights to make sure that Verfassungsblog remains a safe and attractive place for everyone. Your comment will not appear immediately but will be moderated by us. Just as with posts, we make a choice. That means not all submitted comments will be published.

2. We expect comments to be matter-of-fact, on-topic and free of sarcasm, innuendo and ad personam arguments.

3. Racist, sexist and otherwise discriminatory comments will not be published.

4. Comments under pseudonym are allowed but a valid email address is obligatory. The use of more than one pseudonym is not allowed.




Explore posts related to this:
Catalonia, Referendum, Spain, secession



Explore posts related to this:
Catalonia, Referendum, Spain, secession


6 comments Join the discussion