(Whether it’s only Scotland which would need to apply is another interesting legal question, which probably revolves around whether independence is a case of secession from the UK, or dissolution of the UK. In the second case it seems likely that, in strict legal terms, both successor states would need to apply, since if one of them cannot be assumed to be inheriting the rights and obligations of the predecessor state, then neither can the other. One for the legal anoraks.)
It doesn’t exactly follow, though, that Scotland’s application, and the negotiations surrounding it, would take place from 'outside the EU', as the unionists have suggested. They seem to be making the wholly invalid suggestion that the referendum on independence takes place one day, and Scotland becomes independent the minute the result is announced. That’s just plain silly.
A ‘yes’ vote in a referendum (which I still fear is unlikely in the First Scottish Independence Referendum) would inevitably be followed by a period of negotiation on the detail. That negotiation would cover the allocation of assets and liabilities between Scotland and RUK, as well as any international obligations and rights – including Scotland’s status in the EU. Only after conclusion of all those discussions would independence take effect – and it is not beyond the bounds of possibility that there would be another, confirmatory, referendum on the detail. It is in no-one’s interest for there not to be an orderly and planned transfer of power and responsibility.
The legal question regarding the EU is what made the news; but the more pertinent question is not whether Scotland would need to apply or not, but whether that application would be accepted. Short of ridiculous demands being placed by Scotland’s new government, it is hard to see how any application would not be successful. In purely pragmatic terms, why on earth would the other member states not welcome a new state? Rejecting an application would run counter to the whole European project.
And nothing in what Barroso said touched at all on how the application would be treated – he merely reiterated what has been said before, which is that application would be necessary. It is others who have jumped on his statement to raise doubts about the success of any application, and they’ve done so not from any legal considerations, but as a form of argument against Scottish independence.
It’s certainly true that the Spanish state is unlikely to express any enthusiasm in advance of the situation arising, and would prefer that the situation never arose at all, because it might encourage the Catalonians and others. But does that really mean that they would seek to block an application when it came before them? I doubt it. When push comes to shove, I really can’t see any EU member states arguing that they should try to block the democratic will of the people of Scotland – I just don’t expect them to admit it in advance.
Then we come to the way that the unionists in the UK are using the statement. Do they really and truly believe that they can win the referendum by telling people in Scotland that they can’t be independent because Spain won’t allow it? Not only is that not a particularly honest argument, it has the potential for being a massive own goal, and encouraging people to vote yes. They’ll have to find better arguments than that one.