[photo: Visit Gibraltar]
[This is an excerpt from an article in the current special edition of The Round Table: The Commonwealth Journal of International Affairs.]
Gibraltar out of the EU
The United Kingdom and Gibraltar left the club on 31 January 2020 and entered a period of transition which came to an end on 31 December 2020.
The negotiation of the main Withdrawal Agreement was far from straightforward for the United Kingdom and for the European Union. The deal to secure the orderly departure of Gibraltar was, in a sense, even more complicated.
The process commenced with the right-wing Partido Popular in Government in Madrid and with the hard-line Jose Manuel Garcia Margallo as foreign minister of Spain. He was known, as has been said, for his obsessive views about Gibraltar and he laid the markers down very early on.
The first demand was that if Gibraltar wanted to have a relationship with the European Union, then the Gibraltarians would have to agree to share sovereignty with Spain. The second was that once the UK and Gibraltar had left the EU, all options would be open to Spain including closing the land border completely.
The people of Gibraltar had already rejected the very principle of shared sovereignty in a referendum held in November 2002 with 98% voting against. This view had not changed. The question of closing the border sent shudders through the communities on both sides. This particularly worried the 15,000 persons who lived in Spain and who worked in Gibraltar, the majority of whom were Spanish nationals.
However, on 4 November 2016, some four months after the Brexit referendum, Mr Margallo was removed as Foreign Minister. His replacement, Alfonso Dastis, was a career diplomat therefore unlike Margallo not a politician. He came to the post directly from Brussels where he was Spain’s Permanent Representative to the European Union and therefore with some experience of Gibraltar matters.
The inflammatory tone of the comments from the Spanish side lowered immediately when Dastis replaced Margallo. The closure of the border was soon ruled out and shared sovereignty was put to one side.
Meanwhile, the United Kingdom gave formal notice of its intention to depart the European Union, under article 50 of the Treaty, in March 2017. The following month, the EU published its negotiating guidelines, which later became the mandate given to its negotiators led by Michel Barnier. In clause 24, those guidelines provided that ‘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 was seen as a very negative development both in Gibraltar and in the United Kingdom and it came to be known as the second Spanish veto. In other words, Spain enjoyed the same ability enjoyed by all the Member States to block whatever they deemed was not in their interests in relation to parts of the wider agreement. In addition to this, they also enjoyed a specific veto as to if or how that agreement would apply to Gibraltar.
The replacement of Margallo with Dastis was to become a key factor when it came to the negotiations on Gibraltar in another important respect. The latter authorised that Spanish officials engage directly with the Government of Gibraltar in order to find a way forward. This was nothing short of revolutionary. It opened the door to discussions with variable geometry in terms of those present. There were meetings between the UK, Spain and Gibraltar, meetings between the UK and Gibraltar, as well as discussions between Gibraltar and Spain alone. The discussions that took place under that framework produced the architecture for Gibraltar’s orderly departure from the European Union. This was ready before the main UK/EU deal had been finalised.
The Rock’s departure was set out in a Gibraltar Protocol to the Withdrawal Agreement between the United Kingdom and the European Union. The wider architecture also included four Memoranda of Understanding (MoU) on the Environment, Citizens’ Rights, Tobacco and Police and Customs cooperation. The majority of the MoU’s were set to expire on 31 December 2020, to coincide the end of the transition period. The tax treaty was negotiated between Gibraltar and Spain at the same time, and later signed by the United Kingdom as a state responsible for Gibraltar’s external relations. This set out to settle tax residency disputes and other matters which had long dogged relations between Gibraltar and Madrid.
Gibraltar was therefore included within the transition period and left the European Union at the same time as the United Kingdom on 31 January 2020. This departure had originally been scheduled for 29 March 2019. It was then extended to 12 April 2019 and then until 31 October. Finally, at midnight on 31 January 2020, the flag of the European Union was lowered from the Gibraltar border and replaced with the flag of the Commonwealth. This was an important political statement of intent, with all eyes set on the future.
It was hardly surprising that this too was no simple matter. The EU side, at the behest of Spain, argued that Gibraltar would be excluded from the future relationship negotiations with the UK, but were prepared to contemplate a separate agreement with the consent of Spain. The UK took the view that it would negotiate for the whole of the British family of nations and that this included Gibraltar.
The reality was that both sets of negotiations almost run in parallel. This time the main UK-EU deal was concluded first. A UK-EU Trade and Cooperation Agreement (TCA) was announced on Christmas Eve 2020. In turn, a framework agreement for a UK-EU treaty about Gibraltar was reached in the early hours of New Year’s Eve 2020. The negotiations had gone to the wire.
That agreement, which was arrived at between Gibraltar, the UK and Spain, was not made public but its contents appeared in a leak to the Spanish press. The emphasis was clearly on the future movement of people between Spain and Gibraltar and the proposal in that respect was for a common travel area between Gibraltar and the Schengen States. This formula, which envisaged Schengen entry points at Gibraltar airport and port, would completely eliminate controls on persons at the land border.
A number of other areas would be looked at, including the possibility of a bespoke customs arrangement between Gibraltar and the European Union.
Joseph Garcia is an historian and the Deputy Chief Minister of Gibraltar.
