APPENDIX 9
Letter from Chief Secretary, Government
of Gibraltar, to the Foreign and Commonwealth Office,
27 November 1998
GIBRALTAR: SCHENGEN INCORPORATION
Thank you for your letter dated 16 October 1998.
This reply deals only with those parts of your letter which relate
to Schengen Incorporation. We have since touched on these issues
at our meeting in London on 24 November.
I note that Member States are focusing on how
to negotiate association agreements with Norway and Iceland, and
on how to allocate an EU legal base to all Schengen provisions.
This raises two issues for us. First, whether
it might be possible for UK to negotiate an agreement for Schengen
incorporation in respect of Gibraltar, even if the UK itself opts
for non-incorporation. The second is that the choice of legal
base for Schengen provisions is in itself important to Gibraltar
since any base requiring unanimity will effectively give Spain
a veto and thus leverage over the UK to exclude Gibraltar. UK
should therefore insist on bases that avoid this.
It is important that we are kept informed of
developments in those negotiations. What is the position of UK,
Spain and other member states in those negotiations? When is the
Amsterdam Treaty now scheduled to come into force?
The position of the Gibraltar Government is
that it wishes to participate in all parts of Schengen in which
the UK participates. Exclusion of Gibraltar from any parts which
UK joins will isolate Gibraltar in the EU and thus advance Spain's
objectives in that respect. Furthermore, if Gibraltar is excluded
from parts that do not affect frontier controls, it will tend
to justify Gibraltar's exclusion later from the frontiers parts
if and when UK seeks to join those parts. Gibraltar could not
regard that danger as hypothetical.
Gibraltar therefore wishes to participate in
Schengen fully. Only the UK's own non-participation should determine
the extent of Gibraltar's participation. The same applies whether
they be Third Pillar or First Pillar measures, and whether they
be Schengen or Union Acquis measures.
This is not an issue on which Gibraltar will
be willing to remain silent. The territorial extension of these
measures to Gibraltar, when they are extended to the UK, is an
imperative for the Government of Gibraltar. It is not just a case
of the UK position remaining the same as on the draft External
Frontiers Convention, but rather that Schengen measures should
actually apply and operate at the Gibraltar/Spain border as a
matter of clear and established Treaty rights and obligations.
Thank you for seeking our views specifically
on various issues. The list of issues contained in the Home Office
Aide Memoire handed to the Chief Minister at the Blackpool meeting
gives no details or brief as to the substance of the measure in
each issue. I would therefore be grateful if briefing papers could
be urgently made available to us so that we can be aware of and
thus understand the nature and implications of each measure.
We are, in principle, in favour of police co-operation
and co-operation in asylum matters. GOG is not unduly concerned
about the prospect of ECJ jurisdiction over individual cases.
Letter from the Chief Secretary, Government
of Gibraltar, to the FCO, 23 February 1999
GIBRALTAR: SCHENGEN PARTICIPATION
Thank you for your letter of 17 February 1999.
You explain that UK Ministers intend to make
an announcement shortly about the broad aspects of the new free
movement Chapter and the existing Schengen acquis and that this
will be followed by a letter to the EU Presidency indicating which
individual provisions of the acquis the UK will wish to opt into.
Although you have undertaken to inform me of the outcome, it would
be more helpful, indeed necessary, for us to have sight of what
is being contemplated before anything is announced or issued
in final form. It would be disappointing if we were not properly
consulted towards the end of this rather tortuous process. You
will recall that the Minister of State undertook to consult the
Chief Minister fully from the start.
This brings me directly to the next point. I
am a little concerned that you should have simply taken note of
Gibraltar's wish to participate in all parts of Schengen in which
the UK takes part. You know that our interest in this respect
is of fundamental importance. Moreover, given that you confirm
later on in the letter that Gibraltar cannot legally participate
in Schengen measures when the UK does not, it follows by definition
that we should join with the UK on all the Schengen measures to
which UK opts into. I cannot but stress this point which I set
out in my letter to you of 27 November 1998. I would welcome early
reassurance from you on this.
On post-boxing, I would refer you to my letter
of 9 February 1999 to Alison MacMillan regarding the proposed
"post-box" wording on the European Company Statute Regulation.
As you know, this is the latest in a series of suggestions for
a post-box formula. I think that we may have reached the stage
where we cannot simply continue to be reactive to compromise wording
and we should therefore finalise a position.
I look forward to your reply and do let me know
when you are closer to paying us a visit.
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