The unfolding controversy over a future independent Scotland's status within Europe has reached a crisis point for the Scottish government: in the dispute with commission president José Manuel Barroso, the credibility of a significant chunk of its case is at stake.
But within this crisis are unanswered, pivotal questions which could allow the first minister, Alex Salmond, some wriggle room. And there is one puzzle: why would the European commission be getting so involved at this stage, two years before the referendum?
One possible answer to that comes up in a thinktank discussion paper published in October by the pro-EU integration European Policy Centre. It says Brussels is unnerved by the dangers an independent Scotland poses to its integration project. It will, the commission fears, simply accelerate a two-tier Europe.
Barroso's interview with the BBC on Monday, in which he stated that an independent Scotland would "obviously" have to apply to join the EU afresh, as a new member state, was a severe blow to Salmond's previous stance that membership would be automatic, and a seamless transition; or at most a box-ticking exercise.
Barroso has driven that home in a letter to the House of Lords, published on Tuesday by the Scotsman, asserting that "the separation of one of part of a member state or the creation of a new state would not be neutral as regards the EU treaties ... the EU is founded on the treaties which apply only to the member states who have agreed and ratified them."
But Barroso's views raise unanswered questions: is the president seriously suggesting the EU might expel 5.2m EU citizens? After all, recent European legal judgements say everyone living in the EU enjoys that status.
Is it ruling out any transition arrangements protecting Scotland's current rights as part of the UK until its new membership is agreed? Would it allow talks to take place in parallel with Edinburgh's independence talks with London – or if not exactly in parallel, in close lockstep behind them?
Leaving to one side the other questions on whether Barroso's analysis is correct at all (it is likely only the courts could settle that one, if he holds to it), it is curious that Barroso is making his position so clear now.
He had previously indicated that the commission would issue a clear ruling on Scotland's future status and the EU rules if the UK government, as a member state, asked for it: the UK has absolutely no intention of doing so. That is Salmond's problem, not theirs, UK ministers argue.
According to a discussion paper for the EPC published in October, Accommodating an Independent Scotland: How a British-style Constitution for the EU Could Secure Scotland's Future (pdf), the EU is "wary of the Scottish move for independence". It adds that this is:
...not primarily due to the risk of 'independence contagion'. Rather, the threat of Scotland demanding further opt-outs and exceptional positions with a European Union that is already breaking up into a two-tiered membership better explains the hostility.
It has a solution:
Instead of punishing Scotland, other members could fruitfully improve their capacity to accommodate diversity. Ironically, perhaps, British constitutional practice may offer the best answers.
Its authors, Arno Engel and Roderick Parkes, confirm that, in their view, the commission is now hardening its stance partly because the financial crisis is "reinforcing trends towards political separatism across the EU". The mass march in Barcelona in September backing Catalan independence reinforced that trend.
Their long, detailed paper suggests strongly they have already canvassed opinion within Brussels and with other member states, and they are not impressed by what they found. And usefully, they have attempted to encapsulate the reasoning behind Barroso's resistance, offering three alternative paths which Brussels might take, and finally their own solution.
Firstly, they suggest Brussels would "disrupt Scottish independence to prevent contagion". Under that scenario, EU officials are desperate to avoid seeing the EU become "Balkanised":
In the matter of Scottish independence, the interest of the bloc is deemed relatively clear: it lies in ensuring that the United Kingdom remains whole. This is the best means for the EU to stem the contagion effect of Scottish independence. In this regard, most attention has focused on those member states with their own domestic separatist movements.
So Cyprus, Greece, Romania, Slovakia and Spain would be anxious to avoid allowing Scotland to set a precedent:
In the case of Kosovo, they have proved that they are prepared to act on this interest. In setting a new precedent of punishing separatist states within the EU, and thus quelling their own domestic fragmentation, this group of states could expect a degree of support from the EU institutions.
The European Commission and parliament will worry that European integration could lose its appeal for federal or unwillingly divided states in its Eastern neighbourhood and beyond, or will fall prey to the nationalist pressures it was supposed to overcome.
Moreover, this group of states could also count on the support of other member states. None has an interest in seeing the Union 'balkanise', and none professes much appetite to see a further step in the EU's fragmentation: the loss of a powerful and cohesive member state like the UK.
There is a second scenario where it could "contain the problem by making an exception for Scotland". That is because:
It is clear [that] attempts to disrupt the progress of Scottish independence could backfire. Governments on the mainland continent would risk stirring up their own domestic separatist movements by interfering in the affairs of other peoples. A punitive settlement for Scotland would be understood as an expression of internal repression too...
And that might easily stir up Euroscepticism in Scotland and the rest of the UK, so the reasons for a compromise could be seen to grow. Can Brussels work out a way of allowing a "seamless transition to independence" while rejecting that for other regions?
It could, but that would come at a heavy cost to Salmond, warn Engel and Parkes (pdf). An independent Scotland's demands to inherit the UK's individual opt-out deals - including the EU rebate and then, under John Major, on the euro - means it is asking to maintain the historic positions first taken by the Tory many Scots love to hate: Margaret Thatcher. Another irony.
So if an independent Scottish government claims it will be a better EU member than David Cameron's sceptical, budget-cutting government, Brussels might expect Scotland to prove it. Under this scenario, they could be forced to drop those opt-outs as the price for a special deal on membership. It cannot seriously argue to become a "new old" member state:
if the Scottish executive [sic] argues that its historical and constitutional peculiarities are the basis for independence from the [rest of the UK], it will also have to revisit the historical and constitutional grounds for the UK's exceptional status within the EU.
Scotland, as a some-time beneficiary of EU budgetary munificence and a historical bastion of opposition to Thatcherism, will struggle to justify the retention of the budget rebate deal won by the previous Conservative government in the 1980s...
...Scotland, then, could only expect to retain its special status for a limited period. The UK won its opt-outs on the basis that the EU of today is not the union which it signed up to in the 1970s.
At its accession, the UK was joining an economic community and common market, one based in large part on liberal principles of deregulation and free trade. The EU of today is, by contrast, a political project, with heavy regulatory influence over sensitive domestic issues such as borders, asylum, budgets, and financial regulation...
... Even if Edinburgh is not put through the cumbersome process of exiting the EU and then reapplying for membership, the other member states would view Scotland's decision to remain in the EU as evidence of its desire to join the union as it is today. That means that any opt-outs which it does inherit would be transitional. They would be retained so that Scotland can adapt to the EU, and would gradually fall away.
Then there is the third option, say Engel and Parkes: the increasingly rigid EU can change, fundamentally. Why "punish" a legitimate, normal political development – a democratic, legal vote for independence? That proves Brussels' weakness.
Why shouldn't it learn from Britain's history of asymmetric reform, nimbly altering its constitutional structures to suit the time and circumstance? If it does so, they suggest, the EU could expand more easily and accommodate diversity, and presumably too, an independent Catalonia or Basque country.
The need to punish what would in truth be a legitimate, even normal, political development, points to a deeper weakness in the EU's set-up: its inability to deal with variety within its membership. Truth be told, it is not the threat of 'independence contagion' that primarily motivates the majority of governments. It is the prospect of having another troublesome member which does not engage properly with European integration.
In its constitutional practice, the EU has sought to emulate the approach to political integration typical of a nation-state like Germany, where there is a clear constitutional hierarchy and a sense of common destiny amongst its constituent parts. It is disappointing, though not exactly surprising, that the EU has not looked to the UK itself for lessons.
The UK famously offers a constitutional and political model that is deeply at ease with asymmetries. [The] greatest strength of British constitutional practice is its capacity to mediate between different political communities, preventing the emergence of permanent disparities and points of difference between them.
They conclude that the commission's "current obfuscation" on the Scottish question "could have a happy ending, if used consciously". If Scotland became independent, a smaller "rest of the UK" could have a better, more flexible relationship with the EU.
"That tantalising possibility makes it important for the EU to develop constitutional practice to keep the UK on board in the near term, and to avoid the emergence of permanent structures of exclusion."
guardian.co.uk © Guardian News and Media Limited 2010