Overseas Territories

Letter to Mike Gapes MP from Janez Potočnik, Member of the European Commission

Thank you for your letter of 1 March 2010 on behalf of the Foreign Affairs Committee of

the UK House of Commons, seeking clarification about the decision of the European

Commission to list ‘Estrecho Oriental’ as a Site of Commmunity Importance pursuant to

Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna

and flora.

As far as the Commission understands, the territorial dispute between Spain and the

United Kingdom in relation to the marine waters off Gibraltar is long-standing, predating

the accession of both Member States, with both countries claiming sovereignty in relation

to this geographic area. The Commission is not aware that the dispute arising from the

individual position of the two Member States has been resolved within the framework of

the United Nations Law of the Sea or another process under international law.

Under the Habitats Directive Member States are obliged to contribute to the creation of a

network of designated sites across Europe (the Natura 2000 network) aimed at assuring

the long-term survival of Europe’s most valuable and threatened species and habitats. The

role of the Commission in this process is one of coordination – it collates the list of

proposed sites sent by the Member States and oversees the process for adoption of the

overall list.

The Commission considers that, following the principle of sincere cooperation under

Article 4 of the Treaty on the Functioning of the EU, a Member State designating a site in

an area which it knows is the subject of a territorial dispute should notify the other

concerned Member States before submitting it to the Commission. The Commission does

not consider that the Habitats Directive is an appropriate mechanism to resolve such

disputes between Member States in relation to sovereignty claims over the same territory.

Nor does the Commission consider that the listing of the overlapping United Kingdom

site "Southern Waters of Gibraltar" and the Spanish site "Estrecho Oriental" as Sites of

Community Importance for the Mediterranean Region changes the situation in relation to

these disputing sovereignty claims, which ultimately will have to be resolved under

appropriate international and bilateral mechanisms.

It is not the first time that, due to the existence of jurisdictional disputes, an overlap in

areas nominated under the Habitats Directive by two Member States has arisen. Other

instances include Lough Foyle, which borders Ireland and the United Kingdom in

Northern Ireland, and the Ems-Dollard between Germany and Netherlands. The

Commission has no competence in relation to disputes of this kind. There are cooperation

mechanisms in place for trans-frontier protected areas. For example, within the

framework of a trilateral cooperation, Denmark, Germany and the Netherlands work

together in protecting the Wadden Sea, one of the most important and largest wetland

areas in Europe. This has involved the setting up of common objectives and the setting of

standards for what should be done by the countries to ensure that the Wadden Sea is

protected as an entity and used in a sustainable way. Most of the Wadden Sea is protected

by the three Member States concerned within the Natura 2000 network of protected


The listing of the two marine sites off Gibraltar demonstrates that both Member States

recognise the ecological value of these marine waters. However, as far as my services are

aware neither Member State consulted the other before formally notifying their sites for

protection under the Habitats Directive. Given the sensitivity of the matter the

Commission did make contacts with the United Kingdom subsequent to its initial

notification, which confirmed that both Member States maintained their respective claims

of sovereignty in relation to the disputed waters. I would emphasise however that this

contact was not part of the formal procedure set out under the Habitats Directive. Before

adopting its Decision in December 2008, and in accordance with the procedure set out in

Article 4 of the Habitats Directive, the Commission had consulted all the Member States

concerned and had received a favourable opinion from all Member States, including the

United Kingdom, to the proposed update of the list at a meeting of the Habitats

Committee dated 22 October 2008. This was exactly the same formal procedure that led

to the earlier adoption of the list of Sites of Community Importance on 25 April 2006,

containing the United Kingdom site "Southern Waters of Gibraltar".

Given that there is an application from the Gibraltar Government to the EU Court of

First Instance (now referred to as the ‘General Court’), aiming at the annulment of the

Commission decision including the site "Estrecho Oriental" in the list of Sites of

Community Importance for the Mediterranean region, adopted in November 2008, I

would consider it inappropriate to comment further as this matter is awaiting a decision

by the Court.

It would appear to me that this matter require cooperation between the United

Kingdom, Gibraltar and Spanish authorities. The Commission is aware of existing

mechanisms for dialogue, notably the Trilateral forum for dialogue on Gibraltar between

the UK, Spain and Gibraltar authorities, the 3rd ministerial meeting of which took place

on 21 July 2009 and at which environmental issues, including the disputed designations,

were discussed.

The Commission has indicated to both the United Kingdom and Spain that it is willing to

facilitate a process of dialogue and any joint initiatives that they are willing to undertake

with a view to ensuring the conservation and management of the disputed marine

territory off Gibraltar, including, if they consider appropriate, work on the preparation of

a joint management plan for the protection and attainment of the conservation objectives

for the site. The Commission has invited the two Member States concerned to engage in

such a process and stands ready to respond positively to any steps in that regard.

22 April 2010