Article 1 of the Gibraltar Protocol – an annex to the EU-UK Withdrawal Agreement of 24 January 2020 – states that:
The Kingdom of Spain (“Spain”) and the United Kingdom in respect of Gibraltar shall closely cooperate with a view to preparing and underpinning the effective implementation of Part Two of the Withdrawal Agreement on citizens’ rights, which fully applies, inter alia, to frontier workers residing in Gibraltar or in Spain, in particular in the territory of the municipalities that make up the Mancomunidad de Municipios del Campo de Gibraltar, and which, in Articles 24 and 25 provide for specific rights for frontier workers.
On Wednesday 5 June 2024, José Manuel Albares, the Spanish Foreign Minister, met with several key representatives of the Campo de Gibraltar to provide further reassurances on the ongoing negotiations between Spain and the United Kingdom over post-Brexit border controls between Gibraltar and its EU neighbour. However, the prospect of reaching an agreement appears to be dwindling.
Bearing much resemblance to the (now-solved) problem of imposing a hard border in Northern Ireland, the ‘Gibraltar question’ first arose in late 2018 and remains a thorn in the side of Brexiteers, even as we approach the eighth anniversary of the Referendum: how should the free movement of goods and people between the two territories be regulated?
Although this question was of course sparked by the Brexit Referendum, its origins are as intimately rooted in the past as the present: the Spanish Crown ceded possession of Gibraltar to Great Britain on the signing of the Treaty of Utrecht in 1713, and, today, Madrid claims sovereignty over the territory and has called for its ‘decolonisation’. One major source of friction is Gibraltar’s own enduring sense of identity: in 1967, a local referendum saw 99.6% of Gibraltar residents vote to remain a British Overseas Territory; in 1969, hostilities reached fever pitch when General Franco cut off all links with Gibraltar (its borders not being fully reopened until 1985); and in 2002, a second referendum – this time proposing joint UK-Spanish sovereignty over the territory – was rejected just as decisively as the first (98.9% against the motion). And yet, most recently, on 23 June 2016, a mere 4.1% of Gibraltarians voted in favour of leaving the European Union.
The reason for this is very simple: the economies of Gibraltar and Spain work hand in glove. Some 15,000 workers cross the border every day to reach Gibraltar from the coastal regions of Andalusia (above all, from the adjoining municipality of La Línea de la Concepción) – that is to say, roughly half the population of the entire territory itself. And likewise, that population is heavily dependent on imports of food, medicines and other essential supplies from its EU neighbour.
It should come as no surprise, therefore, that Fabian Picardo, the Chief Minister of Gibraltar, once described Brexit as an “existential threat” to its economy, due to fears of a hard border with customs and passport checks. Conflicts first arose back in 2018, when the incumbent Spanish Prime Minister Pedro Sánchez objected to Article 184 of the Withdrawal Agreement, which mandated that:
The Union and the United Kingdom shall use their best endeavours, in good faith and in full respect of their respective legal orders, to take the necessary steps to negotiate expeditiously the agreements governing their future relationship referred to in the Political Declaration of 17 October 2019 and to conduct the relevant procedures for the ratification or conclusion of those agreements, with a view to ensuring that those agreements apply, to the extent possible, as from the end of the transition period.
The draft failed to clarify whether future agreements between the EU and the UK would need approval from Spain for them to apply to Gibraltar, despite the fact that this was made explicitly clear under Clause 24 of the European Council Guidelines for Brexit Negotiations, issued on 29 April 2017:
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 ambiguity was clarified by a joint declaration reached on 25 November 2018, that no such future agreements would apply to Gibraltar without the prior approval of the Spanish government. And indeed, Gibraltar was later excluded from the Trade and Cooperation Agreement signed on 30 December 2020.
Over the past three months we have now witnessed the resurgence of this ongoing conflict. On 12 April, the key players in these negotiations met in Brussels in an unsuccessful attempt to broker a deal once and for all. Albares was joined by Fabian Picardo (Chief Minister of Gibraltar), Lord David Cameron (Foreign Secretary to the United Kingdom), and Maroš Šefčovič (Vice President of the European Commission). The leaders then reconvened only one month later, on 16 May, three days after Albares chaired two meetings in Madrid with municipal and economic agents of the Campo de Gibraltar region.
Since then, Albares has held key talks with regional representatives on two further occasions. The first was held on 4 June in Algeciras, with the mayors of the Campo de Gibraltar and the Junta de Andalucía, including the Minister of the Presidency of the Government of Andalusia, Antonio Sanz. The core issue raised was this: who will conduct Schengen checks in Gibraltar in the event a treaty is signed? The UK has consistently resisted the stationing of Spanish border force in the territory for reasons of sovereignty. Albares is also pushing for the 300,000 inhabitants of the El Campo region to have the right to use the airport in Gibraltar.
However, the second meeting on 5 June shed more light on where Spain currently stands in this debate. In the first instance, Albares met with Juan Franco, the Mayor of La Línea de la Concepción (the area which Albares described rather dramatically as “probably the European municipality most affected by Brexit.”). It has been revealed that, on the Spanish side of the border, plans for the construction of a commercial centre could create some 3000 jobs. This serves as just one example of the vital need for fluidity of movement for cross-border workers, a point echoed by Lorenzo Pérez Periáñez, spokesperson for La Línea’s Business Development Association. However, there have been talks of implementing a tax regime specific to the municipality of La Línea, rather than the entire Campo de Gibraltar, since a deal on the free movement of people would require more funding of public services to allow the city to cope with a greater influx of Gibraltarian workers. In the second instance, Albares travelled to the nearby municipality of Los Barrios to reiterate his commitment to defend the rights of cross-border workers to representatives of the Association of Spanish Workers in Gibraltar (ASCTEG – Asociación de Trabajadores Españoles en Gibraltar).
All in all, negotiations appear to have reached yet another stalemate. Whilst a friction-free border is certainly desirable for both sides, they are struggling to face up to the reality that the UK is no longer part of the EU Single Market. With Lord Cameron facing ever harsher criticism for excessive leniency to Spanish demands for border controls, it seems as though Gibraltar is slipping ever further from Britain’s clutch. Another round of meetings is scheduled this week on the regulation of tax on goods.
Sebastian Ricks
Vilá Abogados
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14th of June 2024
