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Gibraltar excluded from draft EU agreement on post-Brexit aviation

Gibraltar has been excluded from draft EU legislation to limit the impact of a ‘no deal’ Brexit on flights to and from the bloc, in a development that came with a legal twist as Spain sought to protect its position on the isthmus.

The measure was provisionally agreed yesterday by the presidency of the European Council and the European Parliament and, if implemented, will have no practical effect here because there are no flights between Gibraltar and destinations in the EU.

But it signals once again Madrid’s determination to ensure the EU reflects Spain’s position on Gibraltar in any relevant EU proposals after Brexit.

The UK Government welcomed the proposal as a “pragmatic solution” that would provide certainty for citizens and business by ensuring continued reciprocal access to airlines operating between the UK and the EU after March 29 in the event of a hard Brexit.

But in a robust statement attached to the proposal, it also made clear that it did not accept the positions set out on Gibraltar.

In the statement, the UK reiterated its certainty over its sovereignty over Gibraltar including the isthmus on which Gibraltar Airport is situated.

It also rejected a clause that, while excluding Gibraltar, sought to protect Spain’s legal argument that the airport is located on an isthmus that was not covered by the Treaty of Utrecht.

The offending clause in the draft aviation agreement reads in full:

“The territorial scope of this Regulation and any reference to the United Kingdom therein does not include Gibraltar.”

“This Regulation is without prejudice to the legal position of the Kingdom of Spain with regard to the sovereignty over the territory in which the airport of Gibraltar is situated.”

Taken together, the two clauses open up the unusual situation of Spain seeking to exclude Gibraltar from the provisions even while, in line with Madrid’s interpretation of the legal situation, potentially including the isthmus within its scope.

“This is the first time that we see an EU27 measure…with the United Kingdom not round the table, and there is now a footnote in which the Spanish are deploying their language about their legal position on the isthmus in order to show that in their world, this part of Gibraltar would remain in the European Union according to them even though the United Kingdom has left,” Chief Minister Fabian Picard said on Radio Gibraltar yesterday.

“You’ve seen for many generations now language seeking to exclude the application of aviation measures to the isthmus because Spain argues that the airport is built on Spanish land and whilst it’s British it cannot form part of EU aviation measures, otherwise the EU is staking sides even though this was all resolved in Cordoba...”

“Here you see the first measure where Spain deploys its reservationist legal language to pretend that although we may be leaving on the 29th of March…the Spanish – and ergo now possibly the Europeans– have a legal position that makes the isthmus different.”

During the negotiations on the proposal the UK was adamant that, as a member state, the legal position of the UK should be reflected.

The UK Government argued that it would be more appropriate to use Cordoba language acknowledging that any proposal was without prejudice to the legal positions of the UK and Spain on Gibraltar and the isthmus.

The UK “…notes its regret that Gibraltar has not been included in the scope of this measure and reiterates its intention that, when it comes to the future relationship with the EU, it will negotiate on behalf of the entire UK family, including its Overseas Territories,” the UK Government added in the statement.

The agreement will now be submitted for approval by member states' ambassadors in the Council's Permanent Representatives Committee.

If implemented in a ‘no deal’ scenario, it will enable UK-licenced carriers to provide basic air transport services between the UK and the remaining 27 member states.

These rights will be conditional on equivalent rights being conferred by the UK and subject to conditions ensuring fair competition.

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