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What would Scotland’s position in Europe be post independence?

An independent Scotland in international law would be a new state formed by secession from the United Kingdom. The UK would continue as an existing state with a diminished territory. This would be because it is the perception of other states that counts and they would observe that the UK’s institutions were in fact continuing (even if independence technically took the form of undoing the 1707 Acts of Union of the Parliaments of Scotland and England).   
The European Union is an organisation of member states. It has a procedure for accepting new applicant states (article 49, TEU)) and other procedures for amending its foundation Treaties (article 48).  Applicant states must be located in Europe and meet the “Copenhagen criteria”. These require:

stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities;

a functioning market economy and the capacity to cope with competition and market forces in the EU;

the ability to take on and implement effectively the obligations of membership, including adherence to the aims of political, economic and monetary union.

Clearly a newly-independent Scotland could not simply slot into the EU until many issues had been resolved (budgetary contribution, number of seats in the European Parliament etc., etc.). On the other hand it would meet the Copenhagen criteria and, because of its UK past, would already be up to speed in implementation and compliance with the totality of EU laws (the “acquis commautaire”). This would be an unprecedented situation in the EU. If the matters had not been or looked as if they would not be resolved by the time of independence, an Opinion of the Court of Justice might be sought under TFEU article 218. Such an Opinion might address the treatment in the EU of goods and services entering or provided (directly or via a local establishment) from Scotland that were in fact compliant with the EU “acquis”, for the period from statehood until conclusion or termination of a membership process.  
To read our FAQs on Scottish Independence for businesses please click here

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