Eastside project again focus of Spanish scrutiny, but what next?

By Maria Jesus Corrales and Brian Reyes

A Spanish court in La Linea has yet to decide whether to admit for process a criminal complaint lodged by Spain’s state environmental prosecution service over the Eastside project, which has become a focal point of cross-border tension in recent months.

State environmental prosecutors initiated an investigation late last year following a complaint by the Spanish conservation group Verdemar, which had raised concerns not just about the Eastside project but also about the use of rocks from a Spanish quarry.

The prosecution document lodged in court, first reported by Europa Sur last week but dated early April, says reclamation work on the east side of Gibraltar could be an offence under Spanish environmental laws.

“The execution of these works could be causing serious damage to the marine environment and the species that inhabit it, impacting the balance of natural systems,” the prosecution complaint states, according to court documents seen by the Chronicle.

Whether the Spanish court decides to investigate the complaint or not, a key issue that will arise immediately is jurisdiction.

Spain says the waters around Gibraltar are Spanish and has designated them as a special conservation area under EU law.

But the UK and Gibraltar are clear that under the UN Convention of the Law of the Sea, the waters around the Rock are British territorial waters.

Spain has been challenged in the past to put its case before the International Tribunal on the Law of the Sea, which decides on marine territorial disputes. But Madrid has never taken up the offer.

The Gibraltar Government’s position is that Spain’s traditional political view on Gibraltar’s waters has “no binding legal effect of any kind”.

No.6 Convent Place says it applies the highest international standards of environmental protection in Gibraltar waters and abides with rules on the transboundary effects of land reclamation projects.

The Government has also previously highlighted that during Gibraltar’s period of EU membership, the European Commission investigated Spanish complaints about the Eastside project and found that Gibraltar “had done everything properly and by the book, in full compliance with the law”.

Earlier this year, the Commission told an environmental group in Tarifa that it has no authority to investigate infrastructure projects in Gibraltar after Brexit.

PRECEDENT

The complaint lodged in the La Linea court was widely reported as the first such move by Spanish prosecutors.

In fact, a similar step was taken in 2013, when the PP hawk Jose Manuel Garcia Margallo was Spain’s Minister for Foreign Affairs and cross-border relations were at a very low point.

The complaint by Spanish prosecutors back then alleged similar concerns over development and reclamation work at the east side site and was admitted by a La Linea judge for preliminary investigative procedures.

Some 12 years later though, it is not clear how or even if that process has ended, and the case appears to have drifted off the radar without any definitive conclusion.

Successive annual reports from Spain’s state attorney’s office noted that the case was under investigation by judges in La Linea, first in No.3 court, then in No.1 court. According to those reports, the accused in the case had it gone to trial would have been Chief Minister Fabian Picardo.

The investigation was still under way in 2018, according to the annual reports, but the matter was then transferred to the No.4 court in La Linea and from that point on, the trail of this case goes cold.

There is no publicly available decision or ruling in relation to this case, or anything to suggest it is still live.

The latest complaint, unlike the 2013 one, does not name any individual or entity as defendant.

CLOSE EYE

Last week, officials here were closely monitoring the media reporting of the Spanish complaint but had received no formal notification of any judicial process.

The UK Foreign, Commonwealth and Development Office has in recent months received diplomatic protests over the Eastside development, but nothing beyond that.

There is concern, however, that the development could become a focal point of friction just as the summer beach season is set to commence, and against the backdrop of treaty negotiations said to be close to successful conclusion.

The focus will be not just on the court process, but on any potential developments at sea too.

The latest complaint filed by Spanish prosecutors, for example, noted that additional analysis would be needed to establish the project’s impact on the marine environment.

It noted that Spain’s Ministry for Ecological Transition, through its marine and terrestrial biodiversity directorate, said it had not prepared a report on the Eastside project because it had not received any information from the Gibraltar Government on the development.

The ministry said it was impossible for Spain’s Oceanographic Institute to conduct any scientific assessments in the area because any attempts to do so were stopped by Gibraltar authorities.

In the past, the presence of unauthorised Spanish state oceanographic vessels trying to conduct research in Gibraltar waters has met with a robust response from the Royal Navy’s Gibraltar Squadron and Gibraltar law enforcement agencies.

A Spanish state vessel conducting scientific research in British waters is seen as a serious incursion because it is an attempt to take an executive action without authority.

While each side will have its own view of the project, all will want to avoid potentially dangerous stand-offs at sea of the sort seen many times in the past.

The court complaint states that Spanish oceanographic researchers had programmed work in this area for early 2025 and requested support from Spanish law enforcement agencies.

But as of April 2, specialist Guardia Civil conservation officers in Algeciras said there was no indication as to when that research campaign was due to start, according to Spanish court documents.

On Friday, pressed by reporters following Europa Sur’s article last week, the Spanish Government’s representative in Andalucia, Pedro Fernandez, said officials were “on top of this” issue and that conservation specialists from the Guardia Civil and the Spanish Oceanographic Institute were working “on the ground” gathering information. He did not clarify what he meant by that.

The Spanish environmental prosecutors also looked at the shipments of Rock from a quarry in Utrera for use in the Eastside development.

They found no indication of unlawful activity and said the shipments complied with all relevant rules.