APPENDIX 6
Memorandum submitted by Government of
Gibraltar
INTRODUCTION
1. The Gibraltar Government greatly welcomes
the overall conclusions and recommendations of the Report and
wishes to thank the Committee for the considerable interest that
it has taken in the affairs of Gibraltar and in the problems that
Gibraltar faces. The report has been very well received by public
opinion in Gibraltar.
2. The Government and people of Gibraltar
place great reliance on the support of the House of Commons, especially
cross party support, and the Committee is an essential part of
that.
3. The Gibraltar Government's comments on
the Committee's conclusions and Recommendations are as follows:
(1) We conclude that the present system of
border controls is unacceptable and wholly inappropriate between
two parts of the EU. The Spanish authorities should immediately
normalise the border regime which they impose. In any event, we
recommend that the British Government should not hesitate to invoke
the procedures allowed under the Treaty of Amsterdam to ensure
that the right of free movement of EU citizens, whether Gibraltarians
or others, is respected. If the Commission is unwilling to take
swift action itself, the British Government should invoke Article
227 against Spain. (Paragraph 32).
The Gibraltar Government agrees completely with
the Committee. The current position is that border delays continue
at the one hour to one and a half hours that has prevailed since
the early summer of 1999. Occasionally the queue exceeds 2 hours.
Attached hereto at Appendix 1 is a summary of statistics in this
respect relating to the period April 1999 to May 2000 which updates
the data which was supplied to the Committee and is incorporated
in the body of the Committee's Report. As the statistics show
there has been no significant change or improvement in the situation.
On the 8 September 1999, the Gibraltar Chronicle
carried a report stating that EU Commission had confirmed that
the question of frontier delays at the Gibraltar border was to
be examined once the new Commission had been empanelled. The new
EU Commissioner for Justice and Home Affairs, Mr Antonio Vitorino
was subsequently reported to have said that he would be intensifying
contacts with the Spanish Government to try and find a satisfactory
solution to the question of border checks at the frontier.
He was quoted to have told the European Parliament
that "I shall continue and indeed intensify these contacts
with a view to finding a satisfactory solution taking account
of all the factors and parties involved. I shall not fail to inform
Parliament of the steps I take in the future and the resulting
outcome". In another report carried by the Gibraltar Chronicle
on 29 November 1999, it was reported that the European Commission
had decided that it would not intervene over the issue of frontier
delays and that this should be dealt with bilaterally between
the UK and Spain.
In early December 1999, in reply to a question
from Mr Mackinlay about frontier delays the Foreign Secretary
stated "We will continue to press the Commission to take
action against Spain for what, in our judgement, is a clear default
on the European Union law. Secondly, we continue to be in dialogue
with the government of Spain and are looking for ways in which
we can find a political solution in the absence of which we will
have to consider a legal one." During the course of a visit
to Madrid on 26 May 2000, the Minister of State for Europe, Mr
Keith Vaz raised the question of border delays with his Spanish
counterpart, Snr Ramon de Miguel who was later quoted in the Gibraltar
Chronicle to have said that the people in the queues would not
have to wait any longer than an hour. Mr Vaz had welcomed this
statement and expressed the view that the Spanish Government should
consider opening an extra channel. Copies of the relevant Gibraltar
Chronicle reports are attached at Appendix 2.
The Gibraltar Government is extremely concerned
that there has been no progress whatsoever in resolving the matter.
Continuing delays of one hour per vehicle for crossing into Spain
is totally unacceptable. Snr de Miguel's commitment that queues
would not exceed an hour demonstrates beyond doubt that they manipulate
the delays at their pleasure, irrespective of the volume of traffic.
We urge the Committee to lend its further support in asking Her
Majesty's Government to take more direct and effective action
with the EU Commission to seek to restore normality at the frontier
in keeping with EU law.
(2) We believe that if Spain were to act
in such an unwarranted manner [as to ban civil overflights of
Spain by aircraft travelling to or from Gibraltar], proportionate
reciprocal measures should be considered against Spanish aviation
interests. (Paragraph 39).
The Gibraltar Government agrees. On 3 May this
year, a scheduled civilian flight carrying 90 passengers was unable
to land at Gibraltar due to poor visibility and after circling
for 20 minutes requested on three occasions to divert to Malaga
airport. This was refused on the grounds that the aircraft has
made no attempt to land at Gibraltar. The aircraft was therefore
forced to divert to Tangier.
(3) We conclude that there is great potential
in the development of the airport in a way which would assist
both Spain and Gibraltar. This is an area where real progress
can be made. We recommend that the British Government take advantage
of its ownership of the airport to facilitate a new agreement
for the joint use of Gibraltar airport. (Paragraph 41).
The Gibraltar Government has made clear its support
for the development of the airport in a way which would assist
development in both Gibraltar and Spain provided that arrangements
did not prejudice exclusive British sovereignty and control of
the airport the territory on which it is built and the territory
north of the airport up to the border with Spain.
It is not clear to the Gibraltar Government what
the Committee means when it says, "we commend that the British
Government take advantage of its ownership of the airport to facilitate
a new agreement for joint use of Gibraltar airport". If that
were intended to suggest that given its ownership of the airport,
the British Government should impose on Gibraltar an agreement
which breached the above stated principles or which was otherwise
unacceptable to the Gibraltar Government, the Gibraltar Government
could not agree with such a view. Furthermore the concept of "ownership"
in the sense that the airport constitutes Crown Land in the occupation
and use of the Ministry of Defence does not, in the Gibraltar
Government's view, facilitate the making of arrangements that
impinge on sovereignty and jurisdictional issues.
(4) We recommend that the Government give
the fullest legal support to any Gibraltarian (or other non-Spanish)
operator who wishes to re-establish a ferry crossing between Gibraltar
and Spain. (Paragraph 42).
The Gibraltar Government agrees.
(5) We recommend that the two Governments
[of the United Kingdom and of Gibraltar] should ensure that funding
is made available for at least one fast patrol boat for the Royal
Gibraltar Police. (Paragraph 49).
The FCO and the Gibraltar Government have agreed
to co-finance a suitable fast patrol launch on a fifty-fifty basis.
This will be purchased this year.
(6) We recommend that the Foreign and Commonwealth
Office continue to press for the early adoption of legislation
in Gibraltar to bring into effect the Fourth and Seventh EC Company
Law Directives. (Paragraph 55).
The required legislation is now in on the statute
book and operative.
(7) We conclude that the series of allegations
which Spain makes against Gibraltar appear almost wholly to be
without substance. In many cases, it is not just the Government
of Gibraltar but the British Government as well which is traduced.
It is deeply regrettable that allegations are made that cannot
be sustained by a basis in fact. If concrete evidence of wrong-doing
were produced, the British Government should act promptly to deal
with the problem. But so long as allegations are unsubstantiated,
the British Government should continue to rebut them promptly
and decisively. (Paragraph 57).
The Gibraltar Government agrees and is particularly
grateful to the Committee for its understanding and support on
this issue. For its part the Gibraltar Government reassures the
Committee that it is unambiguously committed to the effective
fight against all crime, as is evidenced by the substantial and
increasing level of resources made available to Gibraltar's law
enforcement agencies. The Gibraltar Government encourages maximum
cooperation between Gibraltar's law enforcement and regulatory
agencies and their counterparts abroad. This includes Spain.
(8) We believe that the message that Gibraltar
does comply with its EU obligations should be emphasised by the
United Kingdom Government to its EU partners. We further recommend
that the British Government request that the European Commission,
as part of its regular review of levels of compliance in EU Member
States, assess the compliance of Gibraltar with relevant EU obligations
and publish its findings. (Paragraph 62).
The Gibraltar Government agrees that the message
that Gibraltar does comply with its EU obligations should be emphasised
by the United Kingdom Government to its EU partners. The Gibraltar
Government further believes that that message should be transmitted
on a sustained basis more widely to European institutions and
public opinion through the British and European media. For its
part the Gibraltar Government remains committed to Gibraltar's
compliance with EU obligations.
(9) We recommend that the British Government
should press the European Commission strongly for early action
and speedy resolution of the issues involving non-recognition
of driving licences, passports and identity cards. (Paragraph
66).
The Gibraltar Government is pleased to report
that an agreement was reached with Spain, endorsed by the European
Commission, which has resulted in recognition of the Gibraltar
identity card for travel purposes throughout the EU. The Gibraltar
identity card will continue to be issued in Gibraltar by the competent
Gibraltar authority as a Gibraltar document under Gibraltar Law.
The card will be slightly reformatted to include the words "United
Kingdom" (to associate the card with the member State UK)
and will state that it is validated for EU travel purposes under
the authority of the UK. The new format secures full recognition
of the Gibraltar card. The Gibraltar Government's position on
this matter is set out in the Chief Minister's statement to the
Gibraltar House of Assembly on 19 April 2000, a copy of which
is attached at Appendix 3 to this memorandum.
(10) We recommend that the Government take
all steps open to it under the Treaties to ensure that a determination
is made by the European Commission with no further delay in the
case of telephone operations. (Paragraph 67).
The Gibraltar Government agrees. The situation
is now very critical. Gibraltar has run out of numbers for mobile
telephones (with a waiting list of 200) and has only sufficient
fixed line numbers until the end of this year. This means that
Gibraltar cannot comply with its obligations under the telecommunication
liberalisation regulations since there are no numbers available
for new operators.
The Spanish Government's refusal to recognise
Gibraltar's 350 code is a breach of its obligations under Community
Law and the said breach is the source of severe commercial damage
to the two telephone companies in Gibraltar. This matter has been
pending for four years. There is no indication that the European
Commission is prepared to commence formal legal proceedings against
the Spanish Government. Instead the Commission appears to want
to have this advanced legal and commercial dispute dealt with
bilaterally between the UK and Spain at a political level and
not in accordance with the rule of law to ensure that Community
Law is complied with.
The Gibraltar Government cannot accept that any
person or entity in Gibraltar should be deprived of the right
to fully exercise their legal rights and the protection to which
they are entitled from the proper application of Community Law.
The Gibraltar Government cannot agree that this issue should be
dealt with in a manner which subjects the enforcement of the EU
Rights of Gibraltar citizens and companies to a process of bilateral
political negotiation between the UK and Spain.
Accordingly, we urge the Committee to support
the Gibraltar Government's position and to press Her Majesty's
Government to ensure that it upholds the legal rights of the two
Gibraltar telecommunications companies.
(11) We recommend that the British Government
take speedy and practical steps to ensure that Gibraltarian financial
and other interests are not adversely affected by the non-recognition
of Gibraltarian competent authorities. (Paragraph 71).
This matter has been resolved following the agreements
reached on the 19 April 2000. Under the new agreed arrangements,
the UK will designate Gibraltar's own authorities as the competent
authorities in Gibraltar for the purposes of EU measures and EU
and related treaties. When the Gibraltar competent authorities
need to communicate formally with their counterparts in another
member State they will physically channel their written communications
through a unit at the FCO, known as the "post-box",
which will pass these on to the competent authority in the other
Member States on behalf of the Gibraltar authority. Also, when
the decisions of a Gibraltar authority are to be directly enforced
by the courts or other enforcement authority of another Member
State, without formal communication, the UK post-box will certify
the authenticity of the document concerned. The new arrangements
therefore establish a procedure for conveying formal communications
and decisions between the Gibraltar authorities and their counterparts
in other Member States. Thus, the jurisdiction and competence
of Gibraltar's authorities is fully safeguarded and upheld. The
Gibraltar Government's position is set out in the Chief Minister's
statement at Appendix 3 to this memorandum.
(12) We recommend that a clear message be
given to Spain that any attempt to block Gibraltarian entry into
Schengen runs counter to the letter and spirit of the Declaration
made at the time of the Amsterdam Treaty. (Paragraph 83).
This matter was covered by the arrangements agreed
on 19 April 2000 as set out in the Chief Minister's statement
which is attached as Appendix 3 to this memorandum. We are content
that Gibraltar will be included in all the other parts of the
Schengen acquis in which the UK is itself opting into. We have
objected to our exclusion from the SIS on the principle that Gibraltar
should not be excluded from any EU measure against our will and
in response to pressure from Spain. (see paragraph 3 at page 2
of the Chief Minister's statement at Appendix 3).[4]
As part of the Schengen arrangements, terms were
concluded for formal co-operation between the RGP and the Spanish
police authorities. For many years Gibraltar has sought formal
police co-operation arrangements with Spain. The obstacle has
been Spain's refusal to formally recognise the Royal Gibraltar
Police. The agreement has been entered into between the Home Secretary
and his Spanish counterpart under Article 39 of the Schengen Agreement
which requires that it be signed by the responsible Minister of
the Member State.
(13) We recommend that the Government make
it clear that they will ensure that all British citizens resident
in Gibraltar will be able to vote in the 2004 European Parliament
elections. (Paragraph 92).
The Gibraltar Government agrees. The people of
Gibraltar assume that arrangements will be in place for them to
vote, in the context of the UK Member State arrangements, by the
time of the next elections in 2004. Spain has recently informed
the EC General Council that it will not agree to Gibraltarians
voting in Gibraltar and offering them the opportunity to vote
in Spain. This is wholly unacceptable to the Government and people
of Gibraltar.
On 8 May this year, the House of Assembly unanimously
passed a motion which noted with satisfaction the judgement of
the European Court of Human Rights and recorded the expectation
and entitlement as a matter of human rights of the people of Gibraltar
to vote in Gibraltar in the next European Parliamentary elections
for the election of an MEP whose constituency will comprise Gibraltar.
(14) Our general conclusion is that Gibraltar
has a right to be treated in the same way as any part of the United
Kingdom so far as the benefits of EU membership are concerned.
We recommend that the Government continue to press with determination
for the fullest protection of Gibraltarians' rights as citizens
of the EU. (Paragraph 93).
The Gibraltar Government agrees. The view is
now endemic amongst the people of Gibraltar that, whilst we are
expected to comply with our EU obligations on normal terms, the
enjoyment of our EU rights is frequently subject to denial, interference
or qualification.
(15) We recommend that the Government exert
maximum pressure for the removal of all remaining restrictions
which apply to Gibraltar in the NATO context. (Paragraph 95).
The Gibraltar Government agrees. Far from doing
what the Committee's conclusion and recommendation would expect
from her, Spain is actually actively discouraging other NATO countries
from visiting Gibraltar with their military ships and airplanes.
(16) We recommend that the Royal Navy should
be tasked to support the Royal Gibraltar Police in their duties
of fisheries protection and the interdiction of smuggling. (Paragraph
97).
The Gibraltar Government agrees and acknowledges
the current level of such support that exists. There is currently
no fisheries problem or seaborne smuggling from or to Gibraltar.
(17) We believe that the Prime Minister should
consider meeting Gibraltar's Chief Minister, at least before any
bilateral meeting with the Spanish Prime Minister at which Gibraltar
is to be discussed. (Paragraph 104).
The Gibraltar Government agrees.
(18) As far as Parliament is concerned, we
believe that the Royal Commission at present considering the future
of the House of Lords might consider whether Gibraltar should
be represented in that House, and we shall draw this view to the
attention of the Commission. (Paragraph 104).
The Gibraltar Government agrees and greatly welcomes
the position taken by the Committee.
(19) The Committee believes that, while the
potential Spanish reaction to any constitutional change compatible
with the Treaty of Utrecht is a consideration which British and
Gibraltarian Governments will wish to bear in mind, there can
be no question of a Spanish veto on constitutional developments
in Gibraltar. (Paragraph 106)
The Gibraltar Government agrees.
(20) We recommend that Senor Matute's proposals
be rejected, and that the Brussels Process be replaced by a new
phase in British/Spanish relations over Gibraltar. (Paragraph
119)
The Gibraltar Government agrees with the recommendation
that the Matutes proposals be rejected and would be content to
take part in any suitably structured process of dialogue.
(21) We recommend a new process of regular
dialogue on those many other areas where agreement and cooperation
could yield substantial benefits to Gibraltarians and Spanish
people alike. (Paragraph 120).
The Gibraltar Government agrees and reaffirms
its longstanding policy of seeking such dialogue.
(22) We recommend that the new process of
dialogue should put issues of sovereignty on hold, and concentrate
on exploring areas of cooperation. The full participation, on
the United Kingdom side, of the Government of Gibraltar would
be essential. (Paragraph 123).
The Gibraltar Government agrees. However, it
is not clear what the Committee means when it says "on the
United Kingdom side". If that amounts to a call for dialogue
relating to cooperation between Gibraltar and Spain to be structured
as bilateral dialogue between the United Kingdom and Spain, without
Gibraltar having its own, distinct and separate voice at those
talks, then that would not be acceptable to the Gibraltar Government.
The Gibraltar Government envisaged that, under
the two flags, three voices model, it would participate on the
British side, which would comprise United Kingdom and Gibraltar
parts.
(23) We conclude that there have been occasions
in the past when the British defence of Gibraltarian interests
has not been as robust as it should have been. Of all our overseas
territories, Gibraltar is in the unique position of having to
conform to almost all EU regulations and directives. This means
that the British Government have a special duty of care towards
Gibraltar in the European Union, and places extra responsibilities
upon United Kingdom Ministers to uphold the interests of Gibraltar.
We urge Her Majesty's Government both to recognise and to act
in full accordance with these responsibilities. (Paragraph 125).
The Gibraltar Government agrees.
4. The Gibraltar Government's comments on
the response of the Secretary of State for Foreign and Commonwealth
Affairs to the Committee's Report is as follows:
(1) Frontier Delays
The Gibraltar Government welcomes the UK Government's
statement "We continue to press the Spanish authorities to
lift the restrictions they are imposing at the border. We are
in regular contact with the European Commission, encouraging it
to take effective action under the EC Treaty to ensure that Spain
carries out its obligation to enable EU Citizens to exercise their
right of free movement within the European Union".
It is however important that these sentiments
be expeditiously translated into effective action. We remain concerned
that to date there has been no real improvements in the situation
at the frontier since Spain imposed stricter controls in January
1999 and we would urge the Committee to press the UK Government
to take more effective steps with the EU Commission and Spain
to address the problem.
(2) Dialogue with Spain
In its response to the Committee, the UK Government
stated that "The Government agree with the Committee that
co-operation could yield substantial benefits to the people of
both Gibraltar and Spain and will continue to seek to engage both
the Spanish and Gibraltar governments on dialogue on practical
co-operation."
The Gibraltar Government has consistently made
it clear that it is willing to engage in dialogue with the Spanish
Government on a basis that is not exclusively bilateral between
the UK and Spain but allows Gibraltar to participate with its
own voice. In the Gibraltar Government's view the sole obstacle
to co-operation on proper terms is Spain.
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