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
areas.
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
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