APPENDIX 4
Memorandum submitted by the Foreign and
Commonwealth Office
GIBRALTAR
By letter dated 27 June the Clerk to the Foreign
Affairs Committee sought a further memorandum on Gibraltar. This
memorandum addresses the questions raised in that letter.
1. When will the next meeting of the
Brussels Process take place? When does HMG believe that "the
time (will be) right" to respond to Señor Matutes's
proposals? Will HMG reject these proposals?
No date has yet been set for the next meeting
of the Brussels Process. The Government's position remains that
we will respond to the Matutes Proposals at the next (Ministerial)
meeting under the Process.
2. What is being done to normalise the
border regime between Spain and Gibraltar? If HMG will list its
approaches to (a) Spain and (b) the European Commission (i) at
official level (ii) at ministerial level over the last 12 months
on this issue?
Contacts with Spain when the border issue was raised
The border issue has been raised frequently
in the last year in official contacts including those between
the Embassy in Madrid and the Spanish Foreign Ministry, between
Foreign and Commonwealth Office officials and the Spanish Embassy
in London, between the officials who negotiated the arrangements
announced on 19 April to resolve various Gibraltar-related difficulties
within the EU (even though the border was not covered by those
arrangements) and in discussions between the officials in the
Foreign and Commonwealth Office responsible for Gibraltar and
their Spanish counterparts. It is not possible to provide an exhaustive
list of dates. The border has also been raised in discussions
between HM Ambassador in Madrid and Sr de Miguel, including on
19 January 2000 and 16 May 2000, and with the head of the Guardia
Civil, Sr Valdivieso, on 28 May 2000.
The issue has also been raised at Ministerial
level; most recently between Mr Vaz and Sr de Miguel on 25 May
2000; and between the Secretary of State and Foreign Minister
Pique on 3 July.
Contacts with the CommissionOFFICIAL
LEVEL
The United Kingdom Permanent Representation
in Brussels has raised the border issue frequently with the European
Commission. In particular, Sir Stephen Wall wrote to the President
of the European Commission on 22 June 1999 and briefed Mr Vitorino
on the issue on 6 October 1999 and on 12 January 2000. Sir Stephen
Wall also wrote to Mr Vitorino on 4 May 2000.
MINISTERIAL LEVEL
At Ministerial level the issue was raised at
meetings between the Home Secretary and Mr Vitorino on 16 September
1999; and between Mr Vaz and Mr Vitorino on 8 February 2000. On
5 October 1999 Mr Hoon (then Minister for Europe) telephoned Mr
Vitorino and on 19 June 2000 Mr Vaz wrote to Mr Vitorino.
3. What pressure has been put upon the
European Commission to take effective action against Spain in
respect of border delays? Does the European Commission regard
this as a matter which should be resolved bilaterally? Has HMG
served notice on Spain that it may take action under Article 227?
When does HMG intend to take action against Spain under Article
227?
As has been made clear above, the Government
have continued to raise the issue of the long-standing and unwarranted
delays at the Gibraltar/Spain border with the Spanish authorities
and with the European Commission.
In our contacts with the Commission, we have
pointed out the Commission's responsibility for upholding and
safeguarding EC law. Mr Vaz's letter to the Commissioner of 19
June, following the Westminster Hall debate, highlighted continuing
UK Parliamentary concern on the issue and urged the Commission
to take appropriate action.
As the Committee knows, Commissioner Vitorino
has assured Ministers that the issue is under active consideration
by the Commission. It would therefore be premature for the UK
to consider the possibility of taking action against Spain under
Article 227. Ministers will keep the situation under review in
the light of developments at the border and the Commission's own
response.
4. What length of average delay of vehicles
at the border is regarded by HMG as acceptable?
Whether any delay is "acceptable"
must be judged in the light of a number of factors, including
those such as the volume of traffic. Spain is entitled to check
ID cards/passports and to carry out necessary customs checks.
But such checks must in our view be proportionate and related
to legitimate and justifiable immigration and customs goals, and
should not stem from a politically-motivated policy unrelated
to customs requirements.
5. If HMG can reconcile the figures for
average vehicle delays given in HC Deb 7 June 2000 with those
given in the memorandum received by the Committee from the Government
of Gibraltar (placed in the Vote Office, and referred to in the
Order Paper on 8 June)?
The figures for average vehicle delays given
in HC Deb 7 June 2000 were calculated from details of the delay
times at the border provided by the Royal Gibraltar Police. These
figures give maximum delay times every hour. The average delay
each day was calculated by taking the maximum delay time for each
hour between 0900 hours and 2100 hours (the hours during which
the bulk of traffic passes across the border) and dividing these
figures by the number of hours. This seems to us to be a fair
and accurate method of calculating average delays.
6. When will the franchise in European
elections be extended to citizens of Gibraltar? Whether HMG can
confirm that citizens of Gibraltar will (a) be able to vote in
the European elections of 2004 (b) be able to cast their votes
in Gibraltar?
The Government are actively seeking enfranchisement
in advance of the 2004 elections. The top priority remains to
secure the agreement of all our EU partners to Gibraltar's enfranchisement.
The precise manner in which Gibraltar will exercise enfranchisement
will need further discussion with the Government of Gibraltar
and the Home Office. Mr Vaz made clear in the Westminster Hall
debate on 8 June that voting in a Gibraltar election to the European
Parliament would not take place in Spain.
7. What progress is being made in amending
the 1976 EC Act on Direct Elections?
At the 6 December 1999 General Affairs Council
(GAC) the UK again pressed for amendment of Annex II of the 1976
EC Act on Direct Elections and once more made clear it could only
accept the Common Electoral Principles dossier when Gibraltar's
enfranchisement was resolved. The dossier currently remains blocked
over the issue of Gibraltar's enfranchisement.
8. Whether HMG will take unilateral action
before 2004 to extend the franchise to Gibraltarians (as recommended
by the Committee in 1999) if progress is not made in achieving
consensus with other EU countries?
Unilateral action remains an option under consideration.
But the Government are keen to fulfil their obligation to give
effect to the ECHR Matthews judgement in a manner that has the
support of all parties to the 1976 EC Act on Direct Elections.
9. If HMG will set out the legal advice
on which it bases its views that consent of other member states
is necessary to extend the franchise to citizens of Gibraltar,
and any advice it has received that unilateral action by the United
Kingdom would be unlawful?
Gibraltar is at present excluded from the EP
franchise by Annex II of the 1976 EC Act on Direct Elections,
which states: "The United Kingdom will apply the provisions
of this Act only in respect of the United Kingdom". The UK
has sought to add the words "and Gibraltar". Amendment
of the Annex requires the agreement, and subsequent ratification,
of all Member States. To enfranchise Gibraltar without the agreement
or support of all Member States would carry a risk of challenge
before the ECJ.
10. What is the current position on access
to mobile telephones and fixed line telephones in Gibraltar? Whether
HMG regard Spanish actions on telecommunications as in breach
of EU law? If HMG regard Spanish action as in breach of EU law,
what action is being taken through the Commission to ensure Spanish
compliance?
Spain does not recognise Gibraltar's international
dialling code (+350) which is accepted everywhere else in the
world for dialling Gibraltar. As a result, Gibraltar is allocated
numbers from the Spanish Numbering Plan. Calls from Spain to Gibraltar
are accessible through the Cadiz exchange, which in 1986 allocated
30,000 numbers to Gibraltar. It is anticipated that Gibraltar
will run out of landline telephone numbers by October/November
2000. We understand also that the Spanish Government have not
permitted Spanish mobile phone companies to conclude roaming agreements
with Gibraltar mobile phone companies.
In 1996, two Gibraltar telephone companies complained
to the European Commission that Spain's non-recognition of the
+350 code and prevention of mobile roaming agreements was in breach
of EC competition law. Whilst the Government have no formal role
in a competition case, we have maintained a close interest. We
have made clear to the Commission that we believe the complaints
are well founded and have impressed upon the Commission the need
to resolve the issue as quickly as possible. We remain in close
contact with the Governments of Gibraltar and Spain on the issue.
11. What prospect is there of Gibraltar
being included in the Schengen Information System?
The Council Decision approving the participation
of the UK and Gibraltar in certain provisions of the Schengen
acquis was adopted at the JHA Council on 29 May. This did not
provide for the inclusion of Gibraltar in the articles concerning
the Schengen Information System. Inclusion of Gibraltar in the
Schengen Information System would require a further Council Decision,
approved by unanimity. We see no early prospect of this.
12. What action HMG has taken in respect
of the failure by Spain to allow an aircraft which was unable
to land in Gibraltar because of bad weather to land at Malaga
on 3 May 2000? Was this refusal compatible with Spain's international
obligations?
Spain is a signatory of the Convention on International
Civil Aviation (the "Chicago Convention") under which
contracting States undertake to provide assistance to aircraft
in distress; and also a signatory to the International Air Services
Transit Agreement (the "Two Freedoms Agreement") which
gives aircraft engaged in scheduled international air services
the privilege of landing for non-traffic purposes.
When an aircraft files a pre-departure flight
plan it is required to register its destination airport and a
diversion airport. Spain will not, however, accept pre-departure
registration of a Spanish airport as the diversion airport for
Gibraltar-bound aircraft. We regret this. There have, however,
been occasions when Gibraltar-bound aircraft have known before
departure that it is unlikely that they will be able to land at
Gibraltar and have therefore filed a Spanish airport as the destination
airport. On this basis it is quite common for Gibraltar-bound
aircraft to land at Spanish airports and for passengers to complete
their journey to Gibraltar by bus and/or for passengers to be
bussed to Malaga to start their flight.
In normal weather conditions, however, Tangiers
is routinely registered and used as the diversion airport. On
3 May 2000 two separate aircraft were prevented from landing at
Gibraltar by bad weather. Although both tried informally to request
permission to land at Malaga, in both cases Tangiers was the recognised
diversion airport. Given these circumstances neither airline made
representations regarding the refusal to land at Malaga.
13. What progress is being made in co-operative
development of the airport with benefits both for Spain and Gibraltar?
If HMG will list all recent contacts with the Government of Spain
or the European Commission on development of the airport, and
whether the Government of Gibraltar was consulted in each case?
The possibility of making progress on the airport
has been raised in regular contacts between FCO and Embassy officials
and their Spanish counterparts over the last 12 months, following
consultation with the Government of Gibraltar. During Mr Vaz's
visits to Gibraltar on 18-19 May and Madrid on 23-24 May the airport
was amongst a large number of issues raised. The question also
arose during Sr Pique's visit on 3 July. The Government will continue
to seek to make progress on issues related to the airport.
14. What assurances have been received
from the Government of Spain about the use of Gibraltar by cruise
ships?
There have been no problems with cruise ships
visiting Gibraltar en route to or from Spanish ports since the
end of February. Cruise ships have moved freely between Gibraltar
and Spanish ports for several years.
15. Whether HMG will raise the issue
of Gibraltar in the Intergovernmental Conference to seek Treaty
amendments to secure full European Union rights (including the
rights to vote in elections to the European Parliament) for residents
of Gibraltar?
We see no need for Gibraltar's position under
the Treaty to be raised in the IGC. On the specific issue of the
enfranchisement of Gibraltar in EU elections, see the answers
to questions 6 and 9 above.
16. How will HMG ensure that Gibraltar's
interests are protected in any Treaty changes agreed through the
Intergovernmental Conference? How will the Government of Gibraltar
be consulted during the negotiation process, and in particular
in the final stages of the negotiation?
HMG will consult the Government of Gibraltar
regularly as the IGC negotiations progress, including through
regular briefings and the provision of papers. We will ensure
that Gibraltar's interests are taken into account.
17. What progress has been made in persuading
Spain to lift restrictions on NATO activity in and around Gibraltar?
What evidence is there that Spain is actively discouraging other
NATO countries from visiting Gibraltar with naval vessels and
military aircraft?
As the Committee is already aware from an earlier
memorandum (Re: Foreign Affairs Committee, Fourth Report; Session
1998-99; HC 366) various improvements, including on the use of
Gibraltar-based communications assets, were achieved under an
agreement reached in June 1998. US submarines regularly visit
Gibraltar, Dutch Marines are due to use the exercise facilities
in Gibraltar shortly and during a recent major NATO exercise Canadian
aircraft were based in, and operated out of, Gibraltar. Despite
some improvement shown by such activities, the restrictions applying
to Gibraltar outside large-scale NATO exercises and with regards
to overflights remain in place. We continue to work towards the
lifting of all remaining restrictions.
18. Following the report of the Royal
Commission in the House of Lords, what consideration has HMG been
given to representation of Gibraltar in that House?
Although the Government have said that they
are minded to accept the broad thrust of the Royal Commission's
proposals, the Government are still studying the detail of the
Commission's report and considering the individual recommendations.
The Government will respond in due course.
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