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Last week, the status of Gibraltar arose on two occasions in relation to Brexit. The first passed wholly or virtually unnoticed, while the second caused a furore which has remained in the headlines for several days.
Before we consider those incidents, what is the status of Gibraltar with regard to the EU? As a matter of UK constitutional law, it is not part of the UK, but a colony. It is the only British colony in the EU, by virtue of Article 355(3) TFEU which reads: “the provisions of this Treaty shall apply to the European territories for whose external relations a Member State is responsible”. However, by virtue of Article 28 of the Act of Accession of 1972, Gibraltar is not subject to the Common Agricultural Policy or VAT and, being outside the territory of the customs union (see Article 4 of the Union Customs Code), the Treaty provisions on the free movement of goods do not apply to it.
First of all, Chapter 5 of the Government’s White Paper on the Great Repeal Bill on which Julian Gregory commented (here and here ) began with the following statement: “The Crown Dependencies and the Overseas Territories, including Gibraltar, are not part of the UK for the purposes of EU law …” As regards Gibraltar, this statement is almost certainly incorrect for the reasons set out recently by Advocate General Szpunar (here); (the judgment is that case is still awaited). After all, Gibraltar is in the EU by virtue of being a dependency of the UK; since it is not a Member State in its own right, it necessarily follows that the colony is part of the UK for the purposes of EU law.
Unsurprisingly, this apparent error has not caused a stir. Was I the only person to notice it?
In contrast, the second occasion on which Gibraltar was mentioned last week in one of the key Brexit documents caused a national outcry that does not yet appear to have abated. The final paragraph of the European Council’s draft negotiating guidelines (here), reads as follows: “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.”
In his post on the draft guidelines (here), Ben Rayment aptly described this assertion as a sting in the tail (for the British). But it came as no surprise.
That Gibraltar would be vulnerable to Spanish pressure in the event of a British vote to leave the EU was never in doubt. During the referendum campaign, the Government of the colony campaigned very hard for Remain and made this point most forcefully. So it is little wonder that 95.9% of the population of Gibraltar voted to remain in the EU. The uncertainty of Gibraltar’s sovereignty after Brexit is also plain from the report on Gibraltar by the House of Lords Select Committee on the EU (here), published just a month ago, is replete with detailed information on the issue, including the witness statement by the Chief Minister of the colony.
However, the European Council’s draft negotiating guidelines on Brexit do not say that Spain would seek to regain sovereignty over Gibraltar. In any case, such a move seems unlikely in the near future: the diplomatic and political hurdles would be dramatic; and, considering that the population of the colony opposes returning to Spain almost to a man, any attempt to force the Gibraltarians to accept this arrangement might not be altogether plain sailing in terms of international and human rights law.
On the other hand, there are a number of delicate issues to be solved, including the rights of frontier workers (said to account of 40% of the colony’s workforce) and aviation, a long-standing bone of contention since Spain claims that Gibraltar’s airport encroaches onto Spanish territory. What is more, as the Financial Times suggests, the Iberian Member State might take advantage of the situation to press for the rights of its citizens who wish to live and work in the UK.
In any case, none of this comes as a surprise.