The EU’s position on the Catalan referendum on October 1, 2017

1. Introduction

The number of independent countries in the world has increased from 74 in 1945 to 195 in 2018. This was driven by the dissolution of colonial empires, the breakup of the USSR and secession throughout the world (Muro and Woertz 2018, p.11). In the field of international relations, a secession is defined as the “detachment of a territory from an existing state with the aim of creating a new state on the detached territory” (Pavkovic and Radan 2011). In other words, a region splits off from the mother state in such a way that the now smaller residual mother state remains identical with the former mother state and the new autonomous region becomes independent. In contrast to this, a counter-secession is specified as the “attempt to prevent the breakup of states” (Pavkovic and Radan 2011).

Secessionist or independence movements, which are considered as attempt by a region to separate from its mother state, and counter-secessions have taken place in the European Union (EU) within the last decades. No secessionist movement has been successful in its goal of achieving independence. However, the attempt at secession has clearly left its mark in Belgium, the United Kingdom and Spain. Belgium is today divided in regions and communities which have gained important powers for decision-making concerning “language, culture, education, municipalities, public works, the economy, and foreign trade” (Van Deusen 2018). The Flemish region has become economically strong and secessionist movements are gaining momentum (Bremmer 2017). Scotland has been striving for independence since the 1970s. The movement culminated in a referendum in 2014 when 55% of the voting Scots decided to stay within the United Kingdom (BBC 2014). Most recently, Spain had to deal with a referendum on secessionism. The Catalan government announced the ballot for October 01, 2017. However, the Spanish constitutional court didn’t accept the announcement, neither did the Spanish central government. Therefore, counter-secession has been successful so far because the independence movement has not reached its goal yet.
In relation to such aspirations the EU finds itself in a dilemma. On the one hand, the union has been asked to support the independence movement in Catalonia by the regional government. On the other hand, the supranational organisation is built on its member states including Spain. Therefore, the EU does not have much leeway to develop its own position. What position should the EU take in the conflict? In favour of the Spanish central government or the Catalan government? This paper attempts to shed light on these questions: The second chapter summarises the development leading to the referendum as well as the EU’s opinion on the topic. The third chapter analyses the EU’s position in the wider context of the EU’s influence on secessionist politics within the member states. In detail, the constraints and opportunities that the EU imposes or grants to regional independence movements, especially the one in Catalonia, are pointed out. Here, constraints are considered as a limiting factor on the success of secessionist movements. In contrast, opportunities tend to promote such movements. This paper is based on the hypothesis that the EU reached its position on the Catalan referendum by weighing up both, the constraints and the opportunities. Finally, the last chapter summarises the results.

There is a wide range of literature on the matter with different focuses. This paper focuses on Angela K. Bourne and Christopher K. Conolly because they analyse the phenomenon of secession in the context of the EU. Bourne writes about the cases of Catalonia and Scotland (Bourne 2014) whereas Conolly looks at the evolution of secession and the area of tension between sovereignty of regions and the EU (Conolly 2013). In addition, Sabine Riedel emphasises the outcomes and the consequences of the Catalan referendum in 2017 (Riedel 2018).

2. Referendum and the EU’s position

Catalonia’s efforts at independence have existed since the end of the Franco-regime due to the prohibition of the Catalan culture and language under the dictatorship. After 1975, the region was granted autonomy rights, which helped Catalonia to flourish and strengthen its self-confidence. The financial crisis in 2008 was a turning point, as the negative effects did not spare the Catalan economy. The collapse was blamed on the Spanish central government. Calls for independence became louder and were increased by the rejection of the further broadening of the Catalan Statute of Autonomy by the central government. But the constitutional court confirmed the decision in 2010 (Jahn 2018, p.2). Finally, the Catalan discontent culminated in the referendum on October 1, 2017, where all Catalans were asked to decide whether the region is to become independent or not. Before, the Spanish constitutional court had declared the referendum unconstitutional. Therefore, the Spanish central government sent police forces to prevent the Catalans from going to the polls (Müller 2017). Nevertheless, 42,5% of the Catalan electorate was able to reach the ballot boxes and 90,1% voted for independence (Jahn 2018, p.3). Based on the referendum, 72 of 135 members of the regional parliament in Barcelona voted in favour of the independence of Catalonia on October 27. Ten voted against and two handed in blank ballot papers after the opposition had previously left the room (Rößler 2017, p.1). Once again, the Spanish constitutional court declared the procedure illegal. The Spanish senate, the second chamber of parliament, gave permission to the central government to dissolve the Catalan parliament and dismiss the Catalan government. New elections were set for December 21, 2017. The then president of the Catalan government, Carles Puigdemont, and four of his ministers tried to escape prosecution and fled to Brussels, where they asked the EU to mediate in the conflict (Jahn 2018, p.3).

Just before the referendum in 2017, the EU’s position in the conflict remained unclear (Riedel 2018, p.2). After the 2017 referendum, it took the EU ten days to issue a statement on the conflict in Spain. The day the declaration of independence was signed, the president of the EU Council, Donald Tusk, addressed the Catalan parliament. He called on the members of parliament to abandon their plans and to seek a solution in the dialogue with Madrid which is conform to the constitution (Boffey 2017). Thus, the EU stood alongside with the Spanish central government and dampened the surge of enthusiasm of the Catalans. Apparently, the positioning of the EU had a decisive effect: Puigdemont hesitated to proclaim independence. Until today, this has not happened and the conflict between the central and the Catalan government remains unresolved (Riedel 2018, p.2). The question, why the EU has decided to support the anti-independence forces, will be analysed in the next chapter.

3. Which arguments had led the EU to its position on the Catalan referendum? – An analysis

3.1 Constraints on regional independence movements

In some cases, the EU tries to limit the evolution of regional independence movements. When the EU has repeatedly been asked to support Catalonia’s independence, the EU rejected the call arguing that the union “must respect the constitutional order and the legal framework of each member state” (European Commission spokesperson, 2017, cited in Cockburn, Stone 2017). In other words, the independence movement constitutes an internal matter of Spain and the EU has no legal right to interfere (Bourne 2014, p. 106). This can indeed be retraced in the Treaty on European Union (TEU):
“The [European] Union shall respect the Member States’ […] national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State […]” (Official Journal of the European Union 2016, p. 18).
Given the provision in article 4, the EU has no competence to decide whether a part of the Spanish territory is to become independent because it touches national sovereignty. Therefore, the EU decided to stay out of the process and to leave the decision to the Spanish central government. Indirectly, the EU nevertheless strengthened the position of the Spanish central government by denying support to the Catalan government. This might not have been unintended due to the unknown territory which Catalonia would enter in case of its independence. A region of an EU member state has never become independent before, so the case would raise several questions: Would the new state still be part of the EU? Would Catalonia have to leave the EU and reapply for membership? The case is controversial since the EU’s treaties do not provide an answer (Conolly 2013, p.87).

Supporters of the sub-national movements often simply assume that after a secession the new state retains its EU membership. This assumption was evident in both the Scottish and Catalan independence movements. Catalans argue that they already possess the EU citizenship and the EU would not revoke this right and force the new state to leave the union. Moreover, Catalonia is deeply integrated due to the eurozone, the common currency and the Schengen Agreement. Therefore, the assumption is that the EU would avoid the complicated procedure of a “Catalexit”, especially after the difficult negotiations of “Brexit”. Also, Catalonia would most probably meet the conditions for a new accession of the EU anyway, due to its strong economic performance, its democratic and legal constitution, its geographical position in the middle of the European continent and its historical bonds with other European states. For this reason, the Catalan government assumes that the EU would not want the Catalan territory to leave the EU only to join again a few years later (Conolly 2013, p.84).

The former president of the European Commission, José Manuel Barroso, made clear that the EU would not follow the arguments of the pro-independence activists. In reference to the Scottish independence endeavours he sent a letter to the United Kingdom’s House of Lords in 2012:

“[…] a new independent state would, by the fact of its independence, become a third country with respect to the EU and the Treaties would no longer apply on its territory. Under Article 49 of the Treaty on European Union, any European state which respects the principles set out in Article 2 of the Treaty on European Union may apply to become a member of the EU” (The Scotsman 2012).

Here, Barroso emphasises the limits for independence movements which are the high political and economic costs the new state must face due to the exit of the union. Barroso’s statement was often repeated by other EU officials like the former vice president of the European Commission, Joaquín Almunia, or the at that time internal market Commissioner, Michel Barnier (Bourne 2014, p. 106). All of them try to dampen the expectations of pro-independence activists.
The EU’s position seems to be supported by international law and the practice of international organisations. Typically, a new state does not inherit the international treaty obligation after succession. The new state loses membership and must reapply. This approach is accepted by e.g. the United Nations, the International Monetary Fund and the World Bank (Conolly 2013, p.85-87). In reference to the EU, critics argue that the union in some respects does not have the character of an international organisation but rather one of a federal state (Conolly 2013, p.91). Therefore, the common practice of international organisations does not apply to the EU. As there is no clarity on this matter, it may end up being decided by the European Court of Justice.

The position of the EU becomes even clearer when looking at the EU internal procedures and Spain’s internal difficulties. In order to be accepted to EU accession negotiations, the Council of the EU must approve the decision on the new state by unanimity. In the case of Catalonia, Spain would most probably disagree with the opening of accession negotiation and would block the decision in the Council (Conolly 2013, p.87). A Catalan independence with the approval of the Spanish central government is highly unlikely. Besides the intention to preserve the territorial integrity of the mother state, one of the biggest hurdles is the distribution of debts. Oriol Junqueras, the former finance and economics minister, already made clear that Catalonia will not accept the debt obligations by the Spanish central government when Catalonia leaves the state. Therefore, Spain’s national debt would rise from 100 to 124 percent of its gross domestic product. The modest successes of the Spanish austerity policy of recent years would be destroyed. In order to avoid a relapse into an economic and financial crisis, further cuts in wages and benefits would be necessary. Finally, the European taxpayer would also be obliged to bear the risks of new loans by the European Central Bank to the Spanish government. At this point at the latest, neither the Spanish central government nor the EU and its citizens would be willing to support the independence because political and economic risks are too high. (Riedel 2018, p.2).

Furthermore, the development of the Catalan economy cannot be predicted. After its succession the new state would have to face high trading costs due to missing trade agreements with the EU but also with the rest of the world. The economic strength on which the Catalan enthusiasm is based, could shrink. The new state would slide into recession and become part of the “poorer south” of the EU (Harriet 2012). This the EU cannot want and therefore might have been an influencing factor on the EU’s position related to the referendum.
Besides, the EU might fear that a Catalan independence would retrigger similar endeavours in Scotland but also in other parts of Spain or in the EU (Conolly 2013, p.98).

3.2 Opportunities for regional independence movements

In order to understand the EU’s position regarding the referendum, it is useful also to look at the opportunities for the regions provided by the EU. On the institutional side, the regions have access to the supranational level through the Committee of the Regions which “intervenes at several stages of the EU law-making process” (Committee of the Regions 2019). Also, certain regions like Flanders, Scotland and Catalonia participate in an informal network called Conference of European Regions with Legislative Power (REGLEG) which aims at enhancing the importance of regions in EU affairs. Moreover, there is a redistribution system, the EU structural funds. The member states send money to the supranational level according to their GDP. The financial contribution is then used to promote the different regions of the member states: It “aims to strengthen economic and social cohesion in the European Union by correcting imbalances between its regions” (European Commission 2019). Additionally, the EU ensures “cultural and linguistic protections for minority groups and provides a degree of formal recognition of minority cultures” (Conolly 2013, p.82). This strengthens the regions due to an increase of influence on the supranational level and financial support.

Particularly, Catalonia has been profiting of the regional opportunities given by the EU. Catalonia has been promoting its interests beyond the borders of its mother state. The region has become an important driver of the European economy, exported its culture to other regions of the union and therefore established “inter-regional links”. An example is the collaboration among the “Four Motors of Europe”, Baden-Wuerttemberg, Rhone-Alpes, Lombardy and Catalonia. As a result, Catalonia has been categorized as a “region-state” because it is an important part of Spain while being capable of influencing the European economy (Conolly 2013, p.82). In wider terms, this is called “paradiplomacy, that is the foreign policy/ international relations of regional governments” which serves stateless nationalism for “identity- and nation-building” as well as “cultural preservation” (Lecours and Moreno 2001, p.1). The special rights and opportunities that Catalonia already enjoys may have led the EU to refrain from further strengthening of the region. The EU’s position on the referendum was therefore not supporting the Catalan referendum.

The union gives further impetus to regional efforts through the acceptance of regional associations in the European Parliament. Together with the New Flemish Alliance (N-VA), the Republican Left of Catalonia (ERC), the party of Oriol Junqueras, forms part of a Europe-wide network of separatist parties called the European Free Alliance (EFA), which currently has 11 members in the European Parliament. The EFA supports the Catalan independence movement not only theoretically but also practically. Since the end of October 2017, EFA members of parliament have granted Puigdemont and his ministers’ “asylum”. (Riedel 2018, p.2). Also, they have used rhetoric means to support the Catalan endeavours. One time they described Spain as a new edition of Franco’s regime and called for the country’s exclusion from the EU (EFA 2017). The other time they spoke of a Spanish “Erdoganisation” threatening the Catalan and European democracy (EFA 2018). The EU has not taken up steps to limit these opinions. It appears that a pro-independence campaign is tolerated in the European Parliament and gives way to form further alliances.

From a legal perspective, the EU must give leeway to the regions and its citizens by respecting the right to self-determination. The European Court of Justice (ECJ) recognized this in 2016:
“The customary principle of self-determination referred to in particular in Article 1 of the Charter of the United Nations is […] a principle of international law applicable to all non-self-governing territories and to all peoples who have not yet achieved independence. It is, moreover, a legally enforceable right erga omnes and one of the essential principles of international law” (Levrat 2017, p.1).

The ECJ shows in the case law that general international law is applicable to EU law and binding on EU institutions and EU member states. This gives room to interpretation and supporters of the Catalan independence movement claim to be able to invoke this right extensively. Opponents of this view argue that Catalonia is primarily bound by the Spanish constitution and not by EU law (Marini 2017). In any case, the central government is already granting broad autonomy rights to the region. Since the end of the Franco-regime Catalonia has gained political and financial powers which gives the region a privileged position within the country. The Catalan society profits due to a democratic constitution and a strong economic performance. The right to more self-determination should therefore not be overstretched (Mason 2017).

4. Conclusion

The analysis has shown that the EU has no blueprint on which to base itself. Despite the secessionist movements in other EU member states, the illegal Catalan referendum was a new dilemma for the EU. On the one hand the EU authorities had to find a way to respond to the request for support by the Catalan government. On the other hand, the union must respect the national sovereignty of Spain exercised by the central government based on article 4 of the TEU. Because of the difficult situation, it took Donald Tusk ten days to express his view on the matter. He spoke for the institution when he requested the Catalan members of parliament to negotiate with the central government to come to a solution. This position can be understood by considering the constraints and opportunities that the EU grants to regional independence movements. Constraints are imposed on movements through the influence of the EU: In respect to the Scottish referendum, Barroso had already made clear that in case of independence the new state must reapply for EU-membership. The legal basis of the EU does not mirror this view. However, international law and the practice of international organisations support Barroso’s opinion. Experts who do not agree with Barroso argue that the EU cannot be considered as an international organisation due to its supranational character. Regardless of this, should the Catalan government proclaim independence against the will of the Spanish central government, the new state would have no chance of joining the EU because Spain would block the opening of accession negotiations in the Council. Also, the economic development of an independent Catalonia is unpredictable. Critics argue that the region probably would shrink economically due to the “Catalexit”, and this would not only destabilize the region but also other EU member states.

In contrast, the EU provides the regions with certain powers and opportunities. These can fuel regional independence movements. Institutional support by the EU is evident in the Committee of Regions, REGLEG and structural regional funds. Catalonia has made considerable use of this opportunities and has achieved a strong political and economic position within Spain but also the EU. As a result, Catalonia can exercise its paradiplomacy, collaborates among the “Four Motors of Europe” and is represented in the European Parliament’s party called EFA which has taken up measures to support the Catalan independence movement. The appeal for self-determination can be neglected since the region has gained extensive autonomous rights and enjoys political and economic well-being.

Considering the given constraints and opportunities for independence movements, especially for Catalonia, the EU has no interest in the independence of the region. A secession bears high political, economic and legal risks which are difficult to foresee and possibly costly to pay for. The EU’s position on the referendum in Catalonia was therefore repellent and the final decision to be made remains within the hands of the Spanish central government. But since the latter does not seem to be able to approach the Catalans the question arises whether the EU should not play a stronger mediating role. This situation offers opportunities for further investigation, as does the legal question of EU membership for a seceded state on the territory of the union.

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