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OT 415: Submission from the Government of Gibraltar (1) The inclusion by the European Commission in its Decision (2009/95/EC) listing EU Sites of Community Importance for the purposes of the EU Habitats Directive, of a site within British Gibraltar Territorial Waters ("BGTW"), at the designation of Spain and as a Spanish Site. This has been legally challenged by the Gibraltar Government. (2) The new Commission Decision dated 22nd December 2009, again including the Spanish site within British Gibraltar Territorial Waters ("BGTW"). It is vital that the UK mounts its own separate legal challenge to this new Decision. (3) Spanish incursions into British Gibraltar Territorial Waters ("BGTW"). (4) The adverse and unacceptable implications for British Sovereignty, jurisdiction and control of Spanish and EU Commission actions. 1. The EU Habitats Directive 1.1 Council Directive 92/43/EEC on the conservation of natural habitats of wild fauna and flora (the "Habitats Directive") provides, inter alia, for the setting up of a European ecological network of special areas of conservation. That network is known as "Natura 2000". The Habitats Directive requires Member States, pursuant to Article 4, to propose sites within their national territory to be included in that network to be submitted to the EC Commission together with information which includes a map of the site. A list of sites selected as being "sites of Community importance" ("SCI") is then adopted by the EC Commission in accordance with a procedure laid down in Article 21 of the Directive. Once sites within their national territories have been selected as SCIs in this way, Member States, on the basis of Article 4(4) and 6(1) of the Habitats Directive, are required to designate them as special areas of conservation ("SAC") establishing conservation priorities for those areas in the light of the importance of the site and the necessary conservation measures. 1.2 The EC Commission has adopted four Decisions establishing the lists of SCIs for the Mediterranean biogeographical region. In its initial list, adopted on 19 July 2006 by Commission Decision 2006/613/EC (the first decision), the EC Commission designated the following SCI: "UKGIB0002: Southern Waters of Gibraltar". That site had been proposed by the United Kingdom (at the request of the Government of Gibraltar) in December 2004 and covered a marine area to the south of Gibraltar wholly within British Gibraltar Territorial Waters ("BGTW") which extends at present to 3 nautical miles, but "UKGIB0002: Southern Waters of Gibraltar" SCI deliberately omits areas of BGTW falling to its north on both the eastern and western coastline of Gibraltar. That same SCI was also included in the first updated list contained in Commission Decision 2008/335/EEC (the second Decision). As soon as the site had been so designated in those decisions it became subject to the obligations set out in Article 6 (2)-(4) of the Habitats Directive for which the Government of Gibraltar was (and remains) responsible and to which the Gibraltar Nature Protection Act (the Gibraltar legislation by which Gibraltar's EU obligations under the Habitats Directive were transposed) apply. 1.3 In Decision 2009/95/EC (the third Decision), adopted on 12 December 2008, the EC Commission adopted a second updated list of SCIs which included "UKGIB0002: Southern Waters of Gibraltar" as before. However, it also designated, for the first time, the following SCI: "ES6120032: Estrecho Oriental". That site had been proposed by Spain in May 2007 (without UK's knowledge. "ES6120032: Estrecho Oriental" SCI as proposed by Spain (and listed by the Commission) included, as well as an area falling within the sovereignty of Spain, the entirety of "UKGIB0002: Southern Waters" SCI, together with part of BGTW falling outside UKGIB0002 SCI over which Spain does not enjoy any sovereignty rights, but both of which are British sovereign waters within the jurisdiction of Gibraltar and subject to Gibraltar laws (including Gibraltar's obligations under the Habitats Directive). It also designated a part of the High Seas to the south and east of Gibraltar over which Spain does not, and could not, exercise any jurisdiction and which fall outside Spanish territory. 2. How the issue came to light 2.1 The Government of Gibraltar was first alerted on 26 February 2009 to the designation by Spain of waters within BGTW, as part of a Spanish Site of Community Importance, and of its listing by the EU Commission in Decision 2009/95/EC, when the Gibraltar Ornithological and Natural History Society, a Gibraltar NGO issued a Press Release pointing it out, following their own sight of a reference to it in a Spanish publication of an environmental study in relation to a proposed Heliport in the Spanish neighbouring port of Algeciras. 3. Action taken by the Gibraltar Government 3.1 On 13 March 2009, I wrote to the Secretary of State for Foreign and Commonwealth Affairs, David Miliband, to express my concern about the matter, and urging and requesting him to take the necessary immediate action to ensure that British Sovereignty of Gibraltar waters is upheld and not undermined by Decisions of the EU Commission 3.2 On the 9th April 2009, Michael Llamas, representing the Government of Gibraltar, attended a meeting in London with FCO officials and legal advisers. On 17th April 2009 I wrote to the Governor (with copy to the Secretary of State's Office) in relation to what the Government of Gibraltar regarded as the unsatisfactory outcome of that meeting, and expressing my view about what was required. I enclose a copy of that letter as Annex 2 hereto. The FCO's reply thereto (dated 22 April 2009) and my response (dated 1 May 2009) are attached as Annex 3 hereto. 3.3 Absent a satisfactory solution emanating from UK's discussions with the EU Commission, and just before the procedural deadline for so doing expired, the Gibraltar Government filed in the Court of First Instance of the European Commission an Application under Article 230 EC Treaty seeking an Annulment of Commission Decision 2009/95/EC adopting, pursuant to Council Directive 92/43/EEC (the Habitats Directive) the second updated list of Sites of Community Importance for the Mediterranean Biographical Region to the extent it purports to designate "ES6120032: Estrecho Oriental" SCI so as to include Gibraltar Territorial Waters (both within and outside UKGIB0002: Southern Waters of Gibraltar SCI) and an area of the High Seas. In other words, the Application by the Government of Gibraltar seeks the Annulment of the EU Commission Decision that listed a Spanish site at Spain's designation and as Spain's National responsibility to the extent that it included any part of BGTW, or international waters contiguous thereto (over which Spain could only have Sovereignty if it also had sovereignty of BGTW). 3.4 The Gibraltar Government's Application for Annulment challenges the validity of the Commission's Decision on the following grounds:
(1) The Decision is vitiated by manifest errors of law, in breach of the EC Treaty; (2) The Decision is vitiated by manifest errors of fact, in breach of the EC Treaty; (3) The Decision infringes a rule of law relating to the application of the EC Treaty, namely, a breach of the principle of legal certainty; (4) The Decision infringes a rule of law relating to the application of the EC Treaty, namely, a breach of international law which is binding on the Community. 3.5 I attach, as Annex 4 hereto, a copy of the Gibraltar Government's Application to the European Court. I am advised that the Rules of the European Court may militate against publication of this document at this stage. I am advised also that I am free to provide it to the Committee in confidence, and I therefore do so, requesting that the Committee respects that confidence and desists from publication of the Application or any part of it, to avoid the Gibraltar Government incurring in an infringement of the Court's procedural rules relating to publication of court documents. 3.6 The Application sets out the vitally important issues that arise, and the Gibraltar Government's arguments in relation thereto, including the detailed grounds for the Application. I would respectfully urge the Committee to take note of its contents. 3.7 I attach, as Annex 5 hereto, copies of the Gibraltar Government's press releases 91/2009 of 7 May 2009, and 100//2009 of 18 May 2009 in relation to this matter.[1] 4. action taken by hmg in the uk 4.1 According to EU procedural rules, the UK's right to mount a legal challenge to the EU Commission's Decision 2009/95/EC had expired by the time that HMG in the UK appears to have become conscious of Spain's action and of the EU Commission Decision's impact on BGTW. 4.2 On 27 March 2009 the UK Permanent Representative to the EU wrote to the EU Commission expressing its concern about the Commission's Decision 2009/95/EC, setting out its position and formally placing on the record that it does not recognise the validity of the Spanish 'Estrecho Oriental' designation as submitted by Spain. I attach a copy of this letter as Annex 6 hereto.[2] As this is not a letter to which the Gibraltar Government is a party, I would request that the Committee treats it in confidence, unless released from that confidence by the FCO. 4.3 On the 14 May 2009 the then Minister of State for Europe at the FCO, the Rt Hon Caroline Flint MP, wrote to the Rt Hon Michael Ancram MP QC, in similar terms. A copy of that letter is attached hereto as Annex 7.[3] 5. Legal Action by Spain, the Commission and the UK 5.1 On the 21 July 2009 the EU Commission filed a plea of inadmissibility seeking the dismissal of the Gibraltar Government's Application for Annulment of the Commission's Decision 2009/95/EC without a hearing of the merits, on the grounds that the Gibraltar Government lacked the required status or standing to bring such an action. 5.2 On 7 August 2009 the UK sought the European Court's leave to intervene in the Gibraltar Government's legal action in support of the orders sought by the Gibraltar Government therein. Leave was granted. 5.3 On 10 August 2009 Spain sought leave to intervene in the Case in support of the Commission's aforesaid plea of inadmissibility. Leave was granted. 5.4 On 5 January 2010 HMG in the UK filed a Statement in intervention on the issue of admissibility supporting the Gibraltar Government's status and standing to bring the Application for Annulment and to seek the Orders sought therein. Since this document belongs to HMG in the UK I presume that the Committee will seek a copy of it from HMG in the UK if it considers it necessary or desirable. The UK's statement of intervention in support of GOG's action on the substantive issues is not yet due, and has not yet been filed. 6. New EU Decision dated 22nd December 2009 and the Importance of Direct legal action by the UK 6.1 As stated in Paragraph 4.1 above, according to HMG in the UK, by the time that it became aware of the impact of "ES6120032: Estrecho Oriental" SCI on BGTW by virtue of its inclusion in Commission Decision 2009/95/EC it was too late in accordance with Community procedures, for the UK to itself bring a legal challenge in the European Courts to the validity of said Decision. 6.2 The EU Commission has now issued a new Decision dated 22nd December 2009 further updating the list of Sites of Community Importance, in which new decision the Commission again includes ES6120032: Estrecho Oriental site encompassing BGTW. 6.3 At a meeting of the EU Habitats Committee on 15 October 2009, the UK formally opposed the inclusion again of the ES6120032: "Estrecho Oriental" site in the (then) proposed New Decision containing the third updated list of Sites of Community Importance for the Mediterranean biographical region on the grounds that it was unlawful, urged the Commission to withdraw ES6120032 from the list of sites, and voted against the (then) proposed New Decision. The proposed New Decision was nevertheless approved by a vote to 24 to 1 (UK voting against). The Commission formally adopted the New Decision on 22nd December 2009, and while it has not yet been published, it was formally notified to the UK Government on the 23rd December 2009. 6.4 Regrettably, at that meeting, the UK Representative (contrary to advice from the Gibraltar Government) stressed that the matter was not a question of sovereignty over the waters, but about the effective functioning of the Directive, about ensuring there is transparency in how sites are listed, and not allowing two completely overlapping sites to co-exist, and about the fact that Spain could not meet its obligations under the Directive in BGTW. 6.5 While the issues mentioned in para 6.4 above are clearly very important and germaine, I have made it clear to the FCO that in the Gibraltar Government's view this approach is politically misconceived, legally unviable and dangerous, since it leaves effective and exclusive British Sovereignty, jurisdiction and control of BGTW hanging on the success of an argument (that might be lost) about EU procedure and enforcement effectiveness. Indeed, GOG believes that this approach makes huge Sovereignty concessions to Spain, given the fact (among many other obvious implicit and explicit indicators to the same effect) that Spain is only entitled to designate sites under the Directive "in its territory". 6.6 I have thus made it clear to HMG that the effective defence of British Sovereignty of BGTW and of the UK's exclusive EU Member State competence and responsibility for BGTW requires a full assertion and pleading by the UK of the Sovereignty dimensions of this case in the context of the legal objection to the Decision, and generally. I enclose as Annex 8[4] hereto copies of letters dated 7th December 2009 that I have addressed to the Secretary of State, David Miliband, and the Minister for Europe, Chris Bryant. Given the tactical sensitivity of the content of these letters, I would request that the Committee treat them as 'in confidence'. 6.7 Nevertheless, the New Commission Decision dated 22 December 2009 provides HMG in the UK with a new procedural opportunity to mount its own, direct legal challenge to the legality and validity of the proposed New Decision, thus remedying the prejudice suffered by its failure to challenge the earlier, identical (in this respect) Decision 2009/95/EC on account of the expiry of the deadline for so doing. 6.8 I have made it clear to the FCO, both privately and publicly on various occasions that it is absolutely vital that the UK does bring its own legal challenge to the new Decision. This is because the EU Commission and Spain have applied for the Gibraltar Government's legal challenge to Decision 2009/95/EC to be dismissed for want of status or standing on the Gibraltar Government's part to bring such an action. If that application succeeds then the Gibraltar Government's action, and the UK's supportive intervention in it, fall away, leaving the Decision and its listing of ES6120032 unchallenged and unchallengeable forever, and the hugely damaging and prejudicial effects to British Sovereignty of, and exclusive Member State competence and responsibility for BGTW, in place in perpetuity. The damage that this will inflict to British Sovereignty will not be limited to the Habitats Directive, or other EU environmental measures, but will contaminate all EU measures impacting on the waters (as happened with aviation) under all future EU (and other international) measures. 6.9 The risk of these huge adverse and intolerable consequences being incurred without even a court hearing of the merits of a legal challenge to the matter, can therefore only be ensured by the UK mounting its own direct legal challenge to the new Decision, since this will protect both UK and Gibraltar in the event that the Applications of the Commission and of Spain to dismiss Gibraltar's own case (on purely procedural grounds, without a hearing (and regardless) of the merits i.e. want of standing) were to succeed. 6.10 I have received firm indications from the FCO that the UK will mount such a challenge, that the FCO has already agreed, that the matter is now "doing the rounds" in Whitehall, and that a decision to take such action is expected. It is absolutely vital that that be the case. It would constitute an inexplicable abrogation of the UK's obligations towards Gibraltar and of its duty to uphold sovereignty of Her Majesty's realm, and to protect its own interests, if it did not. 6.11 I am advised that under EU Procedural Rules the deadline for the UK to make a legal challenge to the New Decision of 22nd December 2009, is the 4th March 2010. 7. incursions by spain into bgtw 7.1 The above matters cannot be interpreted and considered in isolation of the pattern of physical incursions by Spain into BGTW that has emerged over the last few months. Both matters respond to Spain's unsustainable and misconceived assertion of Sovereignty of BGTW and her denial of British Sovereignty thereof. In this regard, I respectfully draw the Committee's attention to its previous findings, in earlier reports, in relation to British Sovereignty of BGTW, and to evidence submitted by me in that respect. 7.2 Incursions by Spain into BGTW are not new, they have been happening for decades. UK and Gibraltar have tolerated such incursions when they are capable of being viewed as the exercise of the right of innocent passage (albeit excessively loosely and flexibly defined and interpreted) which does not inflict serious damage to British Sovereignty. 7.3 The novelty during the last few months, which has destabilised the careful equilibrium with which all sides have lived in the past, is Spain's attempt to take executive policing and enforcement action within BGTW. The taking of executive action within BGTW cannot be permitted or overlooked as not being seriously prejudicial to exclusive British Sovereignty and thus Gibraltar jurisdiction and control of BGTW. It is thus a very serious matter. 7.4 The following is a list of recent incursions by Spain into BGTW: · On 12 July 2009, a Spanish Civil Guard launch carried out a documents check on two boats in BGTW just 750 and 250 metres off the coast of Gibraltar. · On 24 July 2009 a Spanish Civil Guard launch purported to provide an "escort" to a merchant ship well within BGTW. · On 4 September 2009 the Spanish Navy vessel "Infanta Cristina" positioned itself well within BGTW and ignored the Royal Navy's challenge to its presence. · On 7 September 2009 a Spanish Civil Guard launch proceeded to an inner point of BGTW which could not possibly have constituted passage, innocent or otherwise, to anywhere. · On 22 September 2009 a Spanish Civil Guard launch effected a "boarding" of two trawlers well within BGTW. · On 23 September 2009, a Spanish Civil Guard launch effected a "boarding" of a pleasure boat within BGTW just 800 metres off the coast of Gibraltar. · On 29 October 2009, a Spanish Civil Guard launch made an incursion into BGTW and took photographs of a Royal Navy vessel. · On 6 November 2009 a Spanish Civil Guard launch purported to "patrol" a maritime exclusion zone relating to a maritime accident well within BGTW. · On 7 December 2009, a Spanish Civil Guard launch in pursuit of another boat entered the Gibraltar harbour, "beached" the boat within Gibraltar harbour, disembarked, pursued its occupants ashore on Gibraltar, and were detained by the Royal Gibraltar Police. The Spanish Interior Minister telephoned the Chief Minister to apologise for the incorrect actions of the Spanish officers and to assure the Chief Minister that there had been no 'political intent'. 7.5 Incursions of this sort pose a constant risk of physical confrontation between the Royal Navy/Royal Gibraltar Police, and the Spanish vessels. They also pose a significant challenge and threat to the possibility of co-operation with Spain in relation to shipping, marine environment protection and maritime law enforcement. The Political position and sovereignty 7.6 It is self evident that the proposal by Spain of the Estrecho Oriental Site of Community Importance embracing large areas of BGTW (including the whole of the UK Site of Community Importance within BGTW designated by the UK) is an assertion of Spanish sovereignty and a usurpation of British Sovereignty, pursuant to Spain's position that there are no Sovereign British Waters outside the Gibraltar harbour walls. It would be inexplicably naive and disingenuous to think otherwise. 7.7 This case (regardless of whether the illegality of the Commission's Decision can (as the UK appears to believe) or cannot (as Gibraltar believes) be safely argued without asserting issues of Sovereignty) is intrinsically about Sovereignty and jurisdiction and not about environmental protection. It is about which Member State is responsible for the Member State obligations created by the Habitats Directive; it is about which country's national laws apply and which country has policy, executive, administrative and enforcement competence and jurisdiction. In short, it is about whether BGTW are of British Sovereignty, Jurisdiction and control and thus the responsibility of Member State UK, or whether they are Spanish. It is not possible, from either the EU political or legal perspective, for any part of EU Territory to exist in a state of national "limbo", with EU obligations applying but without clarity as to which single member state it is territory of, and thus which single member state is responsible for compliance and liable for non compliance. 7.8 In the view of the Gibraltar Government this case represents a frontal challenge to Britain's Sovereignty of BGTW for all the purposes, legal and political, of the EU. If left unchallenged, or if it survives challenge, this Decision will contaminate EU legal jurisprudence and political decision making relating to BGTW in all future EU measures affecting BGTW, not just the Habitats Directive. It will thus represent a continuous obstacle to the fluidity of EU business, or expose BGTW to exclusion from EU measures affecting waters (as occurred with Aviation), or measures will be decided by EU Institutions, using Qualified Majority Voting in manner prejudicial to exclusive British Sovereignty jurisdiction and control of BGTW. 7.9 In the contexts of Sovereignty, and of Gibraltar's status within the EU, the issue at stake could hardly be more serious. 7.10 Even though, given its wider and very serious implications for Sovereignty, it would not make the position acceptable, it cannot be thought that Spain's actions are motivated or can be justified by any consideration of concern for the environment, or its protection. 7.11 The Committee will wish to be aware that, while ES6120032: Estrecho Oriental includes all BGTW within the Bay of Gibraltar, it studiously excludes all Spanish waters contiguous thereto within the Bay. It is for consideration whether Spain's motive for doing so constitutes an attempt to undermine commercial shipping and bunkering activities in our Port, without interfering with such activities in the Spanish port of Algeciras on her side of the Bay. However, since there is no difference in the environmental merit (on the need for their protection) of the waters on the Gibraltar and Spanish sides of the Bay, Spain's action in listing our waters in the Bay but not her own, demonstrates beyond peradventure that she is motivated exclusively by political, and not environmental considerations. Furthermore, Spain's inclusion with the Estrecho Oriental Site of the whole of the Site that was already a SCI by virtue of inclusion by the UK in UKGIB002: Southern Waters of Gibraltar Site, equally demonstrates that Spain's action is not motivated or justified by any need to protect the environment in that site, since that was already the case. 7.12 The Gibraltar Government is deeply concerned by the potential of these issues to complicate and undermine the possibility of co-operation with Spain on maritime and marine environmental protection matters in the context of the Trilateral Forum. 7.13 While the Gibraltar Government remains committed to co-operation with Spain in the context of the Trilateral Forum, this cannot and should not be seen as a means of finessing, still less accommodating or entrenching Spanish actions (e.g. the Estrecho Oriental SCI) in any manner which has enduring adverse implications for exclusive British Sovereignty of, and exclusive UK EU Member State responsibility for BGTW. 7.14 The Estrecho Oriental SCI listing and its implications cannot be 'co-operated away'. The Gibraltar Government will not enter into co-operation agreements or arrangements which accommodate and entrench the Estrecho Oriental SCI with adverse implications for exclusive British Sovereignty or member state competences and responsibilities. 7.15 This situation will undoubtedly complicate the search for mutually acceptable language in agreements for co-operation between Spain and Gibraltar in relation to matters that appertain to our respective waters. 14 January 2010 [1] Not published. [2] Not published. [3] Not published. [4] Not published. |