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Gibraltar and UK say Commission's draft mandate ‘cannot form basis for treaty talks’

Jon Nazca/REUTERS

The European Commission published its draft mandate on Tuesday for negotiations on a UK/EU treaty for Gibraltar, drawing a cold response from Gibraltar and the UK, which both said it strayed “unhelpfully” from the New Year’s Eve agreement and could not form the basis for talks.

The 26-page mandate sets out the Commission’s proposal for the EU’s negotiating guidelines and must be adopted by the European Council before negotiations can commence.

Even before its publication, Chief Minister Fabian Picardo had warned it would contain positions that would not be welcomed by Gibraltar and the UK, but that the focus should be on the outcome of the talks, not on opening gambits.

But the mandate strayed significantly over longstanding red lines that the framework agreement between Gibraltar, the UK and Spain had been careful not to cross, including on the presence of Spanish officers on the ground in Gibraltar.

The response from Gibraltar and the UK was as swift as it was clear.

“The draft EU mandate is a matter for them, of course, but I must say that on the basis of the current draft, there is no possibility of this forming the basis for an agreement,” Mr Picardo said.

“We will work closely with the United Kingdom, especially Foreign Secretary Dominic Raab, to continue to seek the best possible outcomes for Gibraltar.”

Mr Raab, who will today meet in London with his Spanish counterpart Jose Manuel Albares, was even starker in his assessment.

“The UK, with Gibraltar, and Spain carefully agreed a pragmatic framework agreement, in full consultation with the EU Commission,” he said.

“The Commission’s proposed mandate, published today, directly conflicts with that framework.”

“It seeks to undermine the UK’s sovereignty over Gibraltar, and cannot form a basis for negotiations.”

“We have consistently showed pragmatism and flexibility in the search for arrangements that work for all sides, and we are disappointed that this has not been reciprocated.”

“We urge the EU to think again.”

And he later tweeted: “The Commission’s draft mandate fails to respect essential elements of the framework, does not reflect a real-world solution, and cannot form a basis for negotiations.”

The Commission’s proposed negotiating directives put forward solutions to remove physical checks and controls on persons and goods at the land border between Spain and Gibraltar, while ensuring the integrity of the Schengen area and the Single Market.

The proposals include rules establishing responsibility for asylum, returns, visas, residence permits, and operational police cooperation and information exchange.

In presenting the mandate, Vice-President Maroš Šefčovič, the EU's co-chair of the Joint Committee and Partnership Council, said: “By putting forward this draft mandate, we are honouring the political commitment we made to Spain to start the negotiations of a separate agreement between the EU and the UK on Gibraltar.”

“This is a detailed mandate, which aims to have a positive impact for those living and working on either side of the border between Spain and Gibraltar, while protecting the integrity of the Schengen Area and the Single Market.”

"It is about cooperation in the region. It is not about sovereignty or jurisdiction."

But even on a cursory reading, the mandate contains Commission goals that will be unacceptable to Gibraltar and the UK and will make any talks fraught with complexity.

The text, for example, recommends that border controls in full compliance with the Schengen acquis be carried out by Spain, including checks on entry and exit at newly established Border Crossing Points at the airport and port of Gibraltar “and the performance of border surveillance in the adjacent waters”.

“The envisaged agreement should provide that Spanish border guards have all necessary powers and obligations to carry out the border controls and surveillance, including with respect to refusal of entry, receipt of requests for international protection, arrest of a person and seizure of property and the application and use of IT systems, in line with the applicable Union legislation,” the mandate says.

“In case follow up actions need to be taken, the agreement should provide for an obligation on the UK authorities in respect of Gibraltar to assist and facilitate the transfer of the person or object concerned to the authorities of Spain.”

There is no mention in the mandate of Frontex officers carrying out those checks, as envisaged in the framework agreement, although an accompanying statement issued by the Commission acknowledged that “Spain has already expressed its full intention to ask Frontex for assistance” in meeting its obligations.

The mandate also crossed red lines in areas such as the issuing of visas and residency permits and on asylum decisions, where the Commission seeks to give Spain a deciding voice.

It also pushes the framework’s guidelines in commercial areas, including recommending that Gibraltar be required to join the EU’s VAT area for goods and services.

The Commission’s mandate was published against the backdrop of strained relations between the UK and the EU on the implementation of the post-Brexit trade agreement, particularly on issues relating to North Ireland.

That troubled relationship will add yet another layer of complexity to the path ahead in the coming weeks and months.

The mandate was released as Gibraltar’s politicians were deep into the opening session of the budget debate in Parliament, and its 26 pages will be pored over in close detail by both sides of the House in the coming days.

In Madrid, Spain’s Ministry for Foreign Affairs welcomed its publication and said it remained committed to negotiating a treaty for the Rock’s future relations with the bloc.

“Spain will at all time work alongside the European Commission to ensure that its legal positions, interests and objectives are protected and that the commitments reached between Spain and the United Kingdom are respected,” the ministry said in a statement.

“Spain wishes to conclude this negotiation as soon as possible so that a new framework is rapidly established that guarantees shared prosperity for the benefit of all parties and, in particular, the citizens of the Campo de Gibraltar.”

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