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Govt drafts law on reciprocal measures for EU road transport operators

Brian Reyes

The Gibraltar Government is drafting legislation for a new framework under which commercial vehicles operated by EU companies will operate inside Gibraltar in future, unless an agreement on road transportation is reached as part of ongoing treaty talks.

The move, which was first signalled last week, is in response to changes that Spain will implement as from March 1 in respect of Gibraltar-licensed companies who operate commercial vehicles in Spain.

From that date, Gibraltar-registered operators carrying both goods and passenger will only be allowed to conduct business in Spain if they are registered with “extranjeria” and have an employment contract in Spain.

EU nationals resident in Spain and working for a Gibraltar company may also be allowed to continue to cross the border with their vehicle and operate in Spain, although the Gibraltar Government, through the UK Embassy in Madrid, said it was still seeking clarity on the exact detail of the new requirements.

The latest developments stem from the Brexit vote in 2016 and come against the backdrop of ongoing negotiations for a UK-EU treaty on the Rock’s future relations with the bloc.

In the absence of an agreement in those negotiations, Gibraltar will be classed as a third country by the EU, leading to increased bureaucracy for individuals and businesses alike, and the prospect of potentially-significant delays at the border.

Gibraltar left the EU with the UK on December 31, 2020, but unilaterally maintained laws allowing road transport operators licensed in Spain and the EU to carry goods and passengers by road between Spain and the EU and Gibraltar.

This was done on the basis that Spain would ensure reciprocal treatment for Gibraltar-based companies pending the outcome of treaty negotiations, something which has been the case until now.

That situation changed earlier this month after Spain announced new requirements as from March 1. That, in turn, prompted a reciprocal response from Gibraltar.

In a technical notice published on Tuesday, the Gibraltar Government said it had tried unsuccessfully to put a different regime in place to govern the transportation of goods and people.

“An alternative legal framework would have been provided by the European Conference of Transport Ministers and the agreement on the international carriage of passengers by coach and bus, known as the Interbus Agreement,” the Gibraltar Government said.

“The United Kingdom applied to extend this alternative legal framework to Gibraltar in the same way as has happened with other international conventions on other matters.”

“However, on 18 December 2020, the EU objected to this particular extension through a Note Verbale deposited by the European Commission, on behalf of the EU, with the General Secretariat of the Council of the European Union.”

“Therefore the negative impact of Spain’s decision to withdraw reciprocal treatment for Gibraltar hauliers has been exacerbated by the fact that the EU has objected to the application to Gibraltar of the only other international legal framework which would have allowed for such services to continue as between Gibraltar, Spain and the EU.”

The Gibraltar Government said local operators will not require any new permits to operate in Gibraltar under the planned legislative changes, which will apply only to EU companies including those from Spain.

The changes will first apply to EU road haulage operators of goods but may be extended to coaches and buses too at a later stage, although this is a delicate issue because it could impact negatively on the tourism sector.

The new law will see the introduction of a new permit system which will be administered by the Gibraltar Government’s Driver and Vehicle Licencing Department [DVLD].

“EU licensed road haulage operators will not be able to operate in the territory of Gibraltar unless they have been issued with a Gibraltar permit as from the date that the new regime enters into force,” the technical notice said.

“In order to be issued with a local permit, and to therefore be authorised to provide services in Gibraltar, EU operators will need to satisfy the DVLD that they meet the usual conditions attached to permits of this nature such as the need to be of good repute, to have appropriate financial standing and have requisite professional competence.”

“However, an additional requirement will be imposed.”

“This requirement will require EU operators to satisfy the DVLD that the business that they conduct in Gibraltar pursues an objective that is in the public interest of Gibraltar.”

“The criteria which will be applied by the DVLD to assess whether this test is met will be published in the draft legislation which the Government of Gibraltar is already drafting.”

Once the new regime enters into force, EU licensed road transport operators which do not hold a local permit will be required to offload goods introduced into Gibraltar in secure areas which will be designated for these purposes in the vicinity of the land border.

Once in these areas, arrangements can be made by those authorised to operate in Gibraltar to collect the goods so that they can continue with their onward journey in Gibraltar.

“This will provide a degree of business for those Gibraltar based hauliers who have been excluded from operating in the EU,” the technical notice said.

The Government said it hoped to publish draft legislation setting out the new regime once the legislation, the administrative processes, the public information campaign and the logistics have been prepared.

The regime will then enter into force 30 days later.

This period will allow stakeholders to further familiarise themselves with the draft legislation and start to gather the information which will be required to be submitted in support of applications, the Government said.

The DVLD will start to accept applications for permits from the date that the legislation enters into force.

The new proposed measures will only be introduced after allowing time for a communication campaign and for consultation between the Government and Gibraltar haulage companies.

The Gibraltar Government said that if a treaty is agreed providing “a satisfactory level” of EU market access for Gibraltar operators, then the planned legislative changes would not be necessary.

In the New Year’s Eve framework agreement, the UK, Gibraltar and Spain agreed that any treaty on the Rock’s future relations with the EU would include a chapter on road transportation, similar to the one agreed by the UK and the EU as part of the wider post-Brexit trade agreement.

“It is deeply regrettable that, despite the political understanding reached on the application of bridging measures which would apply whilst negotiations are ongoing, it has not been possible to maintain a practical arrangement which was of significant benefit to citizens and businesses on either side of the border,” the technical notice said.

“In the meantime, and despite this setback, the Government of Gibraltar continues to work, unabated, towards securing a deal with the EU that is in line with what was agreed in the Political Framework.”

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