Treaty will reshape cross-border relations

The long-awaited text of the UK/EU treaty on Gibraltar was published on Thursday, setting out a new legal framework that seeks to reshape cross-border relations with a focus on dialogue and cooperation.

The treaty was published simultaneously by the UK Government and the European Commission, the two signatories to the agreement, and was also laid in the Gibraltar Parliament by the Gibraltar Government, which published it too on its website. Spain also published an English version of the document, which is not yet available in Spanish.

It was published even though legal teams are still completing the final legal review and translation of the text, to ensure that all the parliaments with an interest have access to it on the same timeline, and even though parliamentary ratification processes have yet to commence.

The text consists of 336 articles and includes 43 annexes that push the page count to over 1000, making it a formidably complex document littered too with cross-references to additional reams of EU legislation.

While there is broad consensus of the need for a treaty to avoid a hard border and provide stability for Gibraltar after Brexit, there was hunger too for the granular detail of what the agreement entails in practice.

Even ahead of publication, there was wide concern in Gibraltar about its impact on businesses and the roles and powers assigned to Spanish authorities under its provisions.

The treaty consists of a preamble and seven parts, each dealing with specific matters including common and institutional provisions; circulation of persons; economy and trade; frontier workers; financial provisions; dispute settlement; and final provisions.

The first article of the treaty sets out in clear terms its goal, namely “to establish a mutually cooperative relationship” that promotes “shared prosperity and close and constructive relations” between Gibraltar and the adjacent area of Spain, in particular the Campo.

The prickly issue of sovereignty is dealt with in the second clause of the treaty, an article repeatedly flagged by the UK and Gibraltar governments as key to protecting UK sovereignty of the Rock.

The clause effectively protects the core sovereignty positions of the UK and Spain.

It reads: “This Agreement, any supplementing agreements as referred to in Article 3, any administrative arrangements or other arrangements related to this Agreement, and any measures or instruments or conduct taken in application or as a result thereof, or pursuant thereto, shall be without prejudice to, and shall not otherwise affect the respective legal positions of the United Kingdom of Great Britain and Northern Ireland or of the Kingdom of Spain with regard to sovereignty and jurisdiction, and shall not constitute the basis for any assertion or denial of sovereignty including in legal proceedings or otherwise.”

Nothing in the treaty or arising from it, in other words, can have any effect on the longstanding – and conflicting – legal positions of the UK and Spain on Gibraltar’s sovereignty.

Gibraltar will transpose EU rules into Gibraltar law where needed and these will be applied by Gibraltar’s authorities and courts.

The treaty will establish a Cooperation Council made up of EU representatives and of the “UK in respect of Gibraltar”, the language used in the text to refer to UK and Gibraltar authorities.

The council will be supported by three specialised committees to oversee the implementation of the treaty and address any issues arising.

The treaty also sets out a mechanism for dispute settlement, including consultations between the signatories and the possibility of referral to an independent arbitration tribunal.

It includes provisions allowing for provisional implementation pending formal ratification, and for either signatory to terminate the agreement at any time.

‘PHYSICAL BARRIERS’

The agreement seeks to “remove all physical barriers” and ensure the free movement of people and goods between Gibraltar and the EU.

The achieve this, dual immigration controls will be carried out on entry via the airport by Gibraltar immigration officials and their Spanish counterparts on behalf of Schengen authorities, the latter operating from a special facility spanning both sides of the border.

Under the treaty provisions, the UK will provide advance passenger information for people on flights originating outside the EU.

Gibraltarians cannot be stopped from entering Gibraltar, will not be stamped at EU external borders and are exempt from the EU’s new automated border entry/exit system.

Once inside Gibraltar, Gibraltarians and residents will be able to move freely through the Schengen area. They will have a 90 in 180-day limit on the time they can spend in the EU, though that period would be calculated separately for EU states not applying the Schengen rules in full.

Non-resident forces personnel and civilian employees arriving in Gibraltar will be exempt from passport and visa regulations and Schengen checks, though the UK will provide Spain with ID details and movement orders.

Visiting non-resident UK forces will not be able to enter Schengen from Gibraltar and may face both legal consequences and disciplinary action if they do.

CUSTOMS AGREEMENT

Gibraltar will also have a bespoke customs arrangement with the EU single market, with the chapter on economy and trade among the longest in the document.

In setting out the objectives of this section, the treaty’s signatories “…affirm their common understanding that their economic relationship, as it pertains to Gibraltar, can only deliver benefits in a mutually satisfactory way if the commitments relating to a level playing field for open and fair competition stand the test of time, by preventing distortions of trade and investment, and by contributing to sustainable development,” adding the parties are “determined to maintain and improve their respective high standards”.

The agreement envisages a new transaction tax and increases to products including tobacco and alcohol, bringing them closer to Spanish prices., with a new traceability system to be introduced by tobacco products sold here.

Gibraltar will share data on movement of such products with the EU competent authorities on request.

It will also exchange information with EU authorities engaged in combating tobacco smuggling, “including to identify persons that may be found directly or indirectly responsible for said acts”.

There will be new customs clearance processes in three locations in Spain – Sagunto, Algeciras and La Linea – and one in Portugal, with goods imported into Gibraltar having to comply with EU standards including labelling

The document also includes clauses on labour rights including frontier workers, social security coordination and environmental protection including climate change commitments.

The agreement establishes a financial mechanism to promote cohesion between Gibraltar and the Campo, particularly in areas such as education and training.

OTHER AREAS

The treaty covers other areas including environmental protection and sustainability, alongside commitments on climate change and state aid.

An aviation chapter will provide new opportunities for Gibraltar International Airport, enabling flights between Gibraltar and EU destinations.

A joint Anglo-Spanish company in Ireland will award and supervise a contract for the management of the airport terminal, which will remain under Gibraltar’s sole ownership. The RAF base in Gibraltar is outside the scope of the agreement.

A chapter on police and judicial cooperation seeks to strengthen cross-border cooperation in tackling serious crime and protecting against the risk of terrorism.

It creates a framework allowing for hot pursuit on land in defined circumstances and within tight restrictions including prior notification.

Any person stopped in Gibraltar after a hot pursuit can only be arrested by Gibraltar authorities and must be processed though Gibraltar courts, and vice versa.

The treaty also allows for law enforcement agencies to continue surveillance of persons suspected of serious crime, in Gibraltar or Spain, in line with Schengen rules.

Spanish law enforcement would always be accompanied by Gibraltar authorities, and vice versa.

Gibraltar and Spain law enforcement agencies will set up communication lines and direct links for the timely transmission of information for the purposes of continued surveillance and uninterrupted pursuit.

The treaty also establishes a mechanism for the extradition of persons subject to an arrest warrant, a system that mirrors the European Arrest Warrant mechanism that Gibraltar was signed up to while it was in the EU, and which includes domestic judicial oversight in the country where the person is arrested. In both directions, a court must authorise the surrender of the person wanted on the other side of the border.

The Chronicle will be reporting on detailed aspects of the treaty. Check back for more.