Gibraltar: Time to get off the fence - Foreign Affairs Committee Contents

Annex B

Legal Dispute


In 2007-08 Spain applied for and succeeded in designating a large area including most of British Gibraltar Territorial Waters as a marine protected area, recognised by the European Commission. It calls this the Estrecho Orientalsite. The UK has repeatedly tried to overturnthe Commission's Decision, but the UK's case was rejected first by the General Court (May 2011) and then by the ECJ on appeal (Nov 2012).


The Habitats Directive aims to establish a pan-European network of Sites of Community Interest (SCIs) in which natural habitats that satisfy specified criteria are legally protected. The network of SCIs is called Natura 2000.


Member States propose sites within their own territory to the European Commission. The Commission compiles a list of sites that meet the criteria. The consolidated list is approved in draft by the Habitats Committee (on which all Member States are represented) by qualified majority. The Commission then adopts the list as a Commission Decision.


The UK was not notified by either the Commission or Spain that the proposed SCI covered British Gibraltar Territorial Waters. The UK therefore allowed a consolidated list of SCIs to be agreed in 2008, unaware that one of the proposals related to one of the UK's own Territories. Mark Simmonds told the Foreign Affairs Committee that when the UK had previously proposed the Southern Waters of Gibraltar SCI, the Commission had notified Spain in advance of tabling their draft decision and following this notification there had been lengthy discussions between the UK, Spain and the Commission before the UK listing was agreed and adopted. This had not happened in the Estrecho Oriental case.
Timeline: How the European Commission designated the Estrecho Oriental site:

2006: UK secures an SCI that covers a small part of British Gibraltar Territorial Waters, named Southern Waters of Gibraltar.

23 July 2007: Spain applies to Commission for SCI named Estrecho Oriental site, which overlaps with almost all British Gibraltar Territorial Waters, including the existing Southern Waters of Gibraltar site.

March 2008: The Commission sends each Member State an updated list of its own proposed SCIs. The UK is not notified of the proposed Spanish Estrecho Oriental SCI.

October 2008: Commission sends each Member State a consolidated list of all SCI sites, existing and new. Mark Simmonds said: "The UK had no reason to and did not check the thousand or so existing or proposed Spanish sites."

12 December 2008: Following approval of the consolidated list by the Habitats Committee, the list of SCIs is adopted in a Commission Decision.

16 December 2008: The Commission Decision on consolidated list notified to the UK. The UK did not challenge the Decision.

13 February 2009: The List of SCIs published in the Official Journal of the European Union.

15 October 2009: Now aware of the issue, the UK sought to initiate a reconsideration of the listing at a meeting of the EU Habitats Committee, as the list of SCI sites is adopted on an annual basis. The UK presented its case, and said if the designation was not reconsidered it would vote against approving the revised list, and invited others to do the same. Despite UK efforts, the Habitats Committee approved the revised consolidated list, which included the Estrecho Oriental site, as in 2008.

22 December 2009: The list of SCIs is adopted in a Commission Decision.


The case, and appeal, appear to rest on a technicality: the UK did not appeal the original decision in time. By the time the UK took action, the time period for challenging the original 2008 Commission Decision had elapsed. However,the list of SCI sites is adopted on an annual basis so the UK therefore challenged the 2009 decision to relist the Estrecho Oriental site, arguing that the fact that the Estrecho Oriental siteoverlapped with theSouthern Waters of Gibraltar site was a "substantial new fact" that came to light only after the time period for challenging the 2008 decision had elapsed, so the 2009 re-listing was "a fresh decision capable of being challenged". The courts disagreed: the General Court decided in 2009 that there was no new factor so the 2009 decision was not capable of being challenged. The UK appealed to the European Court of Justice, arguing that the General Court had made errors in its appraisal of the facts, specifically in respect of whether a party could have had prior knowledge of the overlapping territories, and that the Court committed an error of law by wrongly identifying the parties whose "constructive" knowledge of the overlapping sites was legally relevant, arguing that the correct test was whether the UK could have realistically known. The ECJ ruled the appeal inadmissible.


Immediately following the ruling, the Spanish Government made a declaration banning marine activities including land reclamation, ship-to-ship transfers of combustible materials and industrial fishing without Government permission. It was also reported that Spanish environmental research vessels had begun to enter Gibraltarian waters to undertake survey work.[134]

The Government said it rejected any suggestion that the loss of the cases was due to incompetence on the part of the UK Government, and said that the situation was caused by "deficient listing procedures and a lack of transparency and effective consultation."

In December 2012, the Minister Mark Simmonds told the Committee that the Government would not abide by the court ruling: "Despite the court case, we do not recognise the Spanish SCI listing. We do not recognise their attempt to designate SAC either. We have made this position clear to the Spanish government."[135]

134   "Picardo and Governor to meet Lidington after Spain purports to pass law controlling British waters", Gibraltar Chronicle, 1 December 2012  Back

135   Oral evidence taken on 11 December 2012, HC 752-i, Q22 [Mr Simmonds] Back

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