The question of a European federal territory: stories of legal uncertainty

The European Union represents the sum of its Member States’ territories, provided that an independent European territory does not exist nowadays. However, some particular areas across the EU may call into question this scheme. Moreover, the outcome of the 2016 Brexit referendum inevitably produced a considerable impact on territorial issues that seemed to be outdated.

The dispute on the Saarland region

The Saarland is the smallest German länder, situated on the border with France and Luxembourg. One may wonder why this one-million-population community can be relevant for the process of European integration, until discovering its curious political history.

After World War I, the Treaty of Versailles established an Anglo-French protectorate in the Saarland. The federated state was administered by France, under the control of the League of Nations. However, in 1935 a plebiscite was held and 90% of the Saarland’s population voted for re-joining Germany. But the story does not end here. After World War II, this territory fell back under French occupation and administration.

Interestingly, in 1954 France and Germany developed a plan to establish an independent Saarland. This project was quite revolutionary, considering that it was proposed less than a decade after World War II, in a society still strongly anchored to national sovereignty. The idea was gladly welcomed by European federalists: this small region could have represented the first example of a unique European territory, independent from any Member State. However, the proposal was rejected by a referendum.

This story gave birth to Article 355 of the Treaty on the Functioning of the European Union (TFEU), which defines the territorial scope of application of EU law. In particular, it establishes special rules and exceptions for specific territories, such as the French Départements d’Outre-mer or those overseas countries having special relations with EU States. The Saarland therefore constitutes only one example of the legal (and political) uncertainty that affects some EU areas. The best examples of this situation can be seen when analyzing the departure of the United Kingdom from the European Union, which altered the relationship of the UK with many territories.

The Northern Ireland saga

The territorial regime of Northern Ireland, which constituted one of the most critical points during the Brexit negotiations, is probably the best symbol of these territorial issues. Northern Ireland and the Republic of Ireland have not been divided by a physical border since the signature of the Good Friday Agreement of 1998. This was not a problem while both territories were part of the EU internal market and thus enjoyed free circulation of goods, persons, services and capital. However, the departure of the United Kingdom from the EU gave rise to a crucial legal question: how to get Brexit done without rebuilding a physical border between the two regions?

The parties, indeed, agreed on a truly sui generis regime. Even if the United Kingdom (and so Northern Ireland) is not part of the Schengen agreement anymore, there will not be a physical border with the Republic of Ireland. However, as legal experts have pointed out, this solution may cause complications for effective controls, especially on goods circulating between the Republic of Ireland (and thus through the EU) and Northern Ireland.

The Brexit and Gibraltar

Another interesting territorial issue concerns Gibraltar, a land of just 6,8 square km situated in the south of Spain. The Utrecht Treaty of 1713, however, establishes that the whole municipality of Gibraltar belongs to the United Kingdom. The accession of both Spain and the UK to the European Union harmonized the relationship between the two States. Nevertheless, with the departure of the UK, Article 355 TFEU, which states that “the provisions of the Treaty shall apply to the European territories for whose external relations a Member State is responsible”, turned out to be useful.

Moreover, the withdrawal agreement establishes that Gibraltar remains in the Schengen area. The curious situation arising is that checks haven’t been put in place at the Spanish border, unlike what happens with people coming to Spain from the UK. In other words, UK nationals are subject to border’s checks while entering their own territory, whereas citizens coming from other EU Member States are not.

Cyprus: the UK Royal Air Force bases in Akrotiri and Dhekelia

Akrotiri and Dhekelia are two tiny municipalities situated in Cyprus, qualified with the status of British Overseas Territories on the basis of the London and the Zurich Treaties of 1959. They host two bases of the Royal Air Force, which are considered as strategic for the military interests of the United Kingdom.

Both territories, according to the accession Treaty of Cyprus to the European Union, benefit from the application of some EU primary and secondary law provisions, especially in the fields of customs, agriculture and fisheries. Another interesting fact is that those territories adopted the euro as a currency, making its borderline nature even more unusual.

Scotland and the pro-European territorial claims

Finally, the pro-independence and pro-European claims arising in Scotland, especially after the 2016 referendum, are there for all to see. The Scottish National Party (SNP) led by Nicola Sturgeon, which always supported Scottish independence, won the 2021 Parliamentary elections by 47% of the votes. This outcome confirmed a consolidated trend, representing the fourth consecutive time that the SNP won the elections in Scotland. Even if independence still remains just a claim, however, it would be interesting to analyse the legal issues that would arise if Scotland leaves the United Kingdom and then rejoins the European Union.

In conclusion, Gibraltar is formally part of the United Kingdom. However, it is geographically situated in Spain and its population enjoys the core of the EU citizenship’s rights: free circulation through the EU. A similar situation, as described above, applies to Akrotiri, Dhekelia and Northern Ireland. If we look at the substance, can we affirm that these territories belong to the UK? The other side of the coin of this question is: could those examples pave the way for a European federal territory?

[This article was first published in the issue 35 of the magazine]