The DRAFT guidelines of the European Council for the forthcoming Brexit negotiations contain much that is sensible but paragraph 22 is an "elephant in the room": "After the United Kingdom leaves the Union, no agreement between the EU and the United Kingdom may apply to the territory of Gibraltar without the agreement between the Kingdom of Spain and the United Kingdom."
This post offers some tentative thoughts on this paragraph which brings into the arena the long-standing tension between the UK and Spain over Gibraltar.
Finalising the guidelines:
The European Council will convene on 29th April to finalise the guidelines. Is the UK legally entitled to participate in the finalisation of the guidelines.
Article 50 TEU certainly excludes, for the purposes of paragraphs 2 and 3, the UK from participation in the "discussions of the European Council or Council or in decisions concerning it." The purpose of paragraph 2 of Article 50 is to negotiate and conclude an agreement setting out arrangements for withdrawal but does that extend to the guidelines which logically have to exist before negotiations commence? The answer is almost certainly that the UK is excluded because the guidelines being produced are specific to the UK's withdrawal as opposed to being generic guidelines. Paragraph 3 relates to extending the 2 year timescale.
Problems with proposed paragraph 22:
Article 50 requires that the withdrawal agreement comes first and that this must take into account the future UK-EU relationship. Subsequent agreements will arise following Brexit - e.g. possibly a UK-EU Treaty regarding trade.
The withdrawal agreement itself has to be "concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament." It may be that paragraph 22 is an attempt to have inserted into the withdrawal agreement a requirement that any subsequent deals will not apply to Gibraltar without Spanish agreement.
Any further treaties - e.g. a trade treaty - between the UK and the EU will require the agreement of all EU member States. Spain would have to agree to any future UK-EU treaty and so paragraph 22 seems to be legally unnecessary in relation to such subsequent agreements.
An article in the Gibraltar Chronicle 4th April states:
"What the draft EU guidelines said was that Spain must agree to any new UK/EU trade deal being extended to Gibraltar, something which was widely interpreted as a veto. But Spain already had a veto on a future deal anyway, as does every EU member.
There is a view that the reference to Gibraltar in the guidelines was in effect seeking to quarantine Gibraltar to prevent it holding up an agreement. Past experience with aviation dossiers means the EU knows full well how things can easily stall.
The implication was that Spain would somehow have a separate veto over Gibraltar but in reality, the guideline may have no additional legal basis."
The article goes on to conclude -
"London should start by stating, clearly and unequivocally, that any future deal with the EU must be extended to Gibraltar.
Let us remind EU members too that we have been good Europeans who are leaving the EU against our will, but who wish to remain British as is our right. We should not be punished for that decision.
It is Spain that is acting unreasonably by using its territorial aspiration to try and condition Gibraltar’s future. In doing so, it is imposing a 300-year old fixation on its EU partners, and ignoring the wishes of 32,000 people."
Here is a useful summary of the dispute between the UK and Spain as it stood in 2013 and also see BBC 26th November 2013.
Rocks and Hard places:
The British government finds itself between several rocks and hard places over Brexit. Apart from Gibraltar there are serious difficulties with Scotland and with Northern Ireland. All of those places voted Remain in the EU referendum. Legally speaking the EU referendum was a UK-wide vote but, politically speaking, it is not viewed that way in Scotland and Northern Ireland. It is the political view that is the more important here.
Gibraltar not ignored or overlooked by London:
The Prime Minister's letter triggering Article 50 did not refer to Gibraltar but it is wrong to say that Gibraltar was either ignored or overlooked by the British government. The 30th March White Paper (Legislating for the UK's withdrawal from the EU) states (para 5.3):
" Uniquely among the Overseas Territories, Gibraltar is largely subject to EU law. Under Article 355(3) TFEU, the treaties apply to Gibraltar as a European territory for whose external relations the UK is responsible. But there are some important exceptions, and certain provisions of EU law do not apply to Gibraltar under the UK’s Act of Accession 1972. These include the provisions on the free movement of goods, the common commercial policy, the common agricultural policy, the common fisheries policy, and rules on VAT and other turnover taxes. Gibraltar is also outside the common customs territory and as a result EU rules on customs do not apply."
In February 2017, the government also issued "The UK's exit from and new partnership with the EU" (Cm 9417) and this refers to Gibraltar.
House of Lords EU Committee:
House of Lords EU Committee - 13th report Session 2016-17 - Brexit: Gibraltar - note, in particular, Chapter 3 "The Frontier with Spain" In its Conclusions and Recommendations the EU Committee said:
"Implications for the sovereignty dispute
We welcome the Government’s intention to engage positively and pragmatically with Spain, to try to secure an agreement that reflects the mutual importance of the economic relationship between the UK and Spain, and between Gibraltar and Andalusia. (Paragraph 87)
We fully endorse the UK Government’s commitment never to enter into sovereignty discussions against the will of the Gibraltarian people. At the same time, we note the risk that Spain will seek to involve the sovereignty dispute either in the negotiations under Article 50 or in future negotiations on a UK-EU free trade agreement. The Government must be vigilant to resist any such attempt. (Paragraph 88)
We also urge the UK Government to remain alert in the longer term to any attempts by Spain to advance its territorial claims over Gibraltar through the medium of EU laws or policies, when the UK is ‘out of the room’ after Brexit. The Government should use whatever means are available under international law to resist encroachment upon Gibraltar’s sovereignty under such circumstances. (Paragraph 89)."
Could Gibraltar's arrangements with EU remain as they are:
At the time of writing, I am finding it hard to see why Gibraltar has to be dragged out of the EU when its people did not wish it to be. The answer undoubtedly lies within UK politics and, as this is a law blog, I will not take that further here.
The European Parliament is to set out its conditions for approving a UK withdrawal agreement - see European Parliament 29th March. This will be the subject of business on 5th April.
The House of Commons Exiting the EU Committee - see their inquiry into the UK's negotiating objectives for withdrawal from the EU
Changes to the Schengen arrangements will apply at the border between Spain and Gibraltar - see this article.
Tighter EU border controls to be introduced in March will require systematic document checks for everyone crossing a Schengen border, including the one between Gibraltar and Spain. The amendment to the Schengen Border Code was first proposed in the wake of terrorist attacks in 2015 and finally approved by the European Parliament and the European Commission last December after months of discussion.
Update 5th April:
The European Parliament agreed its conditions for approving a UK withdrawal agreement - see HERE.