European Council working party holds first talks on Gibraltar treaty

The European Council has formally commenced its examination of the text of the UK/EU treaty on Gibraltar.

The Council’s Working Party on EU-UK Relations, made up of diplomats and civil servants from the 27 EU Member States, the European Commission and the General Secretariat of the Council, held its first round of discussions on the text last Friday, an EU official told the Chronicle.

That is the first step in the EU’s ratification process and there is no clear timetable yet as to when that might be completed.

The Commission has recommended that the treaty be handled as an “EU-only” agreement, meaning it would need approval only by the Council, which brings together representatives from all member states, and the European Parliament.

If the treaty were handled as a “mixed agreement”, it would also require approval by all national parliaments of the EU.

While the parties involved in the negotiation are confident that the Commission’s recommendation for an “EU-only” agreement will be adopted, the position has yet to be confirmed by the Council.

“There is a request by several member states for an opinion by the Council Legal Service on the matter,” the EU official said.

In the first stage of the EU’s ratification process, the Council must give the green light and officially “authorise” the Commission to sign the agreement.

“Then, once the signature takes place, the file will pass to the European Parliament for its consent,” the official told this newspaper.

“The last step would be the conclusion of the agreement which is done again by the Council after European Parliament provides its consent.”

“Of course, this applies in case all concur that it’s an ‘EU-only’ agreement.”

“In case considered a ‘mixed’ agreement, ratification has to be also done by all member states in line with their respective constitutional provisions.”

The meeting last Friday by the preparatory committee was the first time the Gibraltar treaty had been formally considered by a Council body since the text was finalised earlier this month. Its deliberations are so far confidential.

Once the Working Party on EU-UK Relations reaches agreement on the text, the file will pass to member states’ EU ambassadors on COREPER, the Permanent Representatives Committee.

Once COREPER is agreed, the text would be forwarded to the Council for final, formal adoption, before being passed to the European Parliament after signature.

“This should normally take time, so it’s not possible to foresee a specific timetable at this (early) stage of internal discussions,” the official said.

In recent weeks, the Gibraltar Government has stepped up its briefings to key agencies and the business community ahead of April 10, the date from which it hopes the treaty will be applied at least provisionally.

April 10 is also the deadline for EU-wide implementation of the Entry/Exit System [EES], the EU’s new automated border control system.

The treaty includes provisions that will ensure Gibraltar residents are not subject to strict EES controls including biometric scans and restrictions on how long non-EU nationals can be within the Schengen zone.

Without those provisions, the fear is the EES requirements could severely disrupt frontier fluidity and impact negatively on communities either side of the border.

While the legal processes toward ratification are still ongoing, all sides are clear they want to avoid that potential impact at the border when April 10 arrives.

The treaty allows for provisional application once signed, even pending full completion of the ratification process.

This a method well established in international treaty practice to bring agreements into effect ahead of formal entry into force.

It enables countries to apply treaty commitments on a provisional basis while they complete the necessary procedures and relevant international treaty formalities to finalise the ratification process.

In Gibraltar, preparatory work commenced in recent weeks on temporary infrastructure works to allow for the provisional implementation of the treaty as from April 10.

While the full infrastructure may not be fully complete by the target implementation date, the Gibraltar Government said it was exploring options for provisional facilities to be put in place by that time.

This would allow the core elements of the treaty to come into force as planned, with the more comprehensive facilities finalised in the following months.

The Spanish Government also said in the past week that it was carrying out “all the necessary preparations”, though Madrid has faced criticism from opposition parties and Campo politicians about a lack of detail and engagement ahead of the treaty.