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Tuesday, August 06, 2013

Between a rock and a hard place: Is Spain breaching EU law by making life difficult for Gibraltarians?

The 'Gibraltar question' has consistently been the biggest bone of contention in UK-Spanish relations ever since the 1713 Treaty of Utrecht which saw the territory permanently ceded to Britain. Although the issue never goes away, every now and then it flares up, and the decision by the Gibraltar authorities to construct an artificial reef - to prevent alleged incursions from Spanish fishing vessels - has been the latest trigger.

The Spanish authorities do have the scope to make life difficult for the Rock's inhabitants, and Spanish Foreign Minister García-Margallo has commented that this time, "the party is over". Madrid has already introduced stringent border checks on people travelling in and out of the territory - resulting in up to seven hour queues on the border (in stifling heat) - and further actions have been threatened, including €50 levy on cars entering and leaving the territory, as well as a tax crackdown on Gibraltarians who live on the Spanish side of the border.

Leaving aside the question of whether this is even in Spain's own interest given its own economic problems (thousands of Spanish citizens work in Gibraltar), are these types of measures - particularly the levy - even permitted under EU free movement rules? EU law prohibits discrimination against citizens of other member states when it comes to free movement, and the UK has indicated it could issue a legal challenge.

So does the UK have a good case? Article 45 of the EU Treaties which establish the principle of free movement states that:
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. 
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: 
(a) to accept offers of employment actually made; 
(b) to move freely within the territory of Member States for this purpose; 
Discrimination is clearly prohibited for the purposes of employment, as is the ability to "move freely" within member states for this purpose, although exemptions for "public policy" and "public security" are quite vague. However, the right to free movement covers the right to live and work in another member state, it does not address the more specific issue of travelling between two member states for this purpose.

The UK and/or the Gibralterian authorities could however argue that the burdensome checks are a de facto impediment to the ability of British and Spanish citizens to exercise their right to work in another member state (i.e. on the other side of the border) and are therefore illegal under EU law. This is particularly true as the restrictions would not apply to the other border crossings, such as the Portuguese or French ones, although the Spanish could counter that the levy would be no different to localised toll roads or charges.

On the border crossing issue, EU member states are still allowed to police their own external borders, but internal border controls have been abolished in the Schengen area of which the UK is not a part. Therefore, Spanish authorities have the right to impose border controls, but according to a Commission source they have to be "proportional".

In other words, we have absolutely no idea whether the UK would be successful should it take Spain to the ECJ. The wonders of EU law...


Anonymous said...

Amongst the failings of the EU is its lack of democracy. Yet the referendum on EU membership is not democratic either.

Gibraltar citizens are not allowed to vote in that referendum. Yet Gibraltar membership of the EU depends upon UK membership of the EU. When the UK leaves the EU, Gibraltar will have to withdraw accordingly, whether the people of Gibraltar like it or not.

Rollo said...

Whenever primitive countries are having problems, they will try to find a common enemy. This will fill the front page and deflect anger. Every failed government in history has done this. Rajoy and his government are in trouble because their corruption is uncovered; and the Spanish economy is in a spiral of decline from which it cannot recover while in the Euro. The Spanish solution: make war on Gibraltar. Heroic!

Rollo said...

And, anonymous, the Gibraltarians will be glad to leave the EU. Who wants to be part of the crew of a sinking ship?

Anonymous said...

It is reported that the EU may "send" observers. If Britain were still an independent nation they would have to ask to be invited.

Anna Syngellakis said...

To say the ..." wonders of EU law" is not good analytical writing. Any law can have its ambiguities that need to be tested in court. As the post on the EU membership referendim shows, any law can have an element of incomprehension. Why are Gibraltarians excluded from voting on a British issue? are they British for some purposes only? I do not know the answer and would very much appreciate a response.

Open Europe blog team said...

Dear Anonymous, regarding the participation rights of Gibraltarians in any EU referendum, this issue remains open.

James Wharton's EU referendum bill as currently drafted does not specifically include Gibralter, but William Hague has said the issue will be considered and decided nearer the time:


EU Rights Clinic said...

EU Rights Clinic to investigate Gibraltar border delays.


Rik said...

All negative EU PR at the end of the day. They simply should react faster and more to the point if they want to avoid negative fall out. They can do it on Maltese refugee issues (another negative PR stunt btw).
Same with Mercedes vs France. Should get with a few days to:
-Stuff is dangerous, so EU legislation has to be changed asap;
-Stuff is not dangerous and Mercedes should obey the rules.
(as it is of course unthinkable that EU legislation was put into the world while they didnot really have a clue what they were doing).

Simply no other possibilities, if you want to avoid negative PR for an organisation with a huge image problem. Nothing good will come out for the EU, they messed up one thing or they messed up the other in the eyes of the public and with the media attention multiplied.

Anonymous said...

Has the eussr ever had a clue what it is doing?

clinihyp said...

Isn't the real question is does Spain care whether or not it's breaking the law since it diverts attention from the mess they're in whilst safe in the knowledge that Euro luvvies will support them!

LAH said...

I see this blog is dominated by the anti EU brigade. Some would say nutters! I would not be so rude, as everyone in the EU has the democratic right to express their views, but references by the anti EU brigade to EU luvvies deserves some retaliation. What is galling though are references to eussr. The blogger who made this trite reference presumably was not in fear of pre dawn arrest or imprisonment for his or her political views. Referring to the eussr is an insult to all those who really did fear for their lives, or who died, under the shackles of the soviets. The EU is far from perfect but then so is the British system of governance. But for those reading this convinced that the EU is undemocratic I challenge them to specify one single thing ever forced on the UK and which was opposed by the British Government. Some will say giving up our fishing rights. NO. It was agreed as part of the European Communities Act and part and parcel of the terms the British people in the 1975 referendum confirmed. Some mention the Working Time Directive. NO. That was agreed as a temporary derogation when Tony Blair took the UK into the Social Chapter, something which was part of Labour's 1997 general election manifesto. Yet others will mention the dreaded rebate. But that is our "membership fee" for access to a single market of half a billion people, to the ease with which we can move around Europe to live and work, and perhaps also to making sure that war in Europe remains unthinkable. The EU spends just one per cent of all public spending so let's keep things in proportion. But this blog stream is about Gibraltar. And here I agree with the sentiments of many other contributors to this blog. Spain must leave Gib alone and if it acted rationally it would do so as it has more to lose than gain. But when it comes to notions of sovereignty and nationality unfortunately many countries and individuals don't seem to act rationally. And that is where the EU may be able to break the stalemate. Perhaps.

Jesper said...

Is it really discrimination if citizens of all countries are being subject to the same treatment when crossing the border?

How much money is the UK exchequer losing out on due to Gibraltars tax-regime?

Gibraltar gets the benefits of UK clout while at the same time it rips off UK & the outrage isn't about the behaviour of Gibraltar?

Richard said...

Why is this Government proposing to issue contract to a Spanish company Telefonica, especially the way in which SPAIN are continuing their clampdown on border checks in Gibraltar with motorists left waiting for up to five hours in sweltering temperates
Companies who win upcoming government contracts to install smart utility meters across the UK are set to pocket over £2bn in public money.

The money will come from the Department of Energy and Climate Change and will be spent over the next 15 years, at which point the UK is expected to have 20 million smart meters in operation. But it's still only part of the £4.59bn our government is committed to spend to make our utility meters more intelligent. Telefonica is in line for £1.5bn being a member of a consortium when a total British Company Vodaphone could provide the required expertise, and the possibility for further employment for the British along with all that entails.

Absolutely disgraceful if the DECC are allowed to award any part of this contract to any subsidiary of a foreign company when a British Company could and should be involved. I for one will be termination all our 02 contracts for true British companies, shame that BT sold out to them.

Our Government should do all they can to support and award contracts to British Companies

David Horton said...


Richard said...

"Why is this Government proposing to issue contract to a Spanish company Telefonica"


Because a tender was notified through the OJEU and Telefonica won the bid.

Spain is an EU member, and are entitled to bid AND expect that their bid is treated fairly, using the same criteria regardless of the origin of all competitors.

The only way for British government buyers can legally offer preferment to other British Companies, is for the UK to leave the EU.

And I for one, hope with every fibre of my being, that we leave the EU sooner rather than later.

With the greatest respect to the sterling (sic) efforts of the Open Europe team, (and the fervent hopes of Merkel and Cameron), I can't see that the rest of the EU countries acceding to the type of wholesale changes that would be needed to persuade Britons to vote to stay in.

Anonymous said...

Perhaps we should all boycott Spain for are holidays,for one year only. Sorry that would cost us more with a euro bailout!!

Anonymous said...

Lets delay all Spanish business men and women entering the UK for extra checks at all airports. Why not!

Gosporttory said...

Well covered by Rollo and clinihyp comments. I am not sure which planet LAH has dropped in from or whose views he thinks that he represents!

David Barneby said...

The term EUSSR was coined several years ago by an American , writing a comment in a BBC Europe blog .
You can highlight the attrocities under communist rule ; however the EU is shaping itself along similar political lines , dictating to all member states , whether we the people like it or not .

You consider democracy that we have elected a political party and government , so that whatever EU law they choose to accept ia automatically democratically acceptible to the people whether they like it or not .

While making democratic pretentions , the EU is determined to stamp out any real democracy , as in the case of the Lisbon Treaty , where governments were directly told No referendums please .

On the question of Gibralta ; there is always tension between Spain and Britain re British ownership of the Rock . My guess is that the summer is an effective time to create road blockages to good effect , to draw attention away from the Spanish government political woes .

I'm not sure that it would matter if Gibraltarians voted in a British IN/OUT referendum , but they would certainly feel deprived .

Anonymous said...

I see Cameron has enlisted the help of the EC to monitor delays at the Spanish/Gibraltar border crossings. I wonder if the EC could monitor the similar queues we have to endure when crossing into England from the mainland especially at Calais or at Airports. Seems Cameron is happy to back the principles of free movement when it suits him whilst denying the same to the citizens of his own country.

Anonymous said...


How about the small and insignificant subject of a REFERENDUM?

I also remember last year when 26 idiot EU nations ganged up on the UK wrt the FTT. It was only common sense that averted the imposition of this ridiculous idea.

The EU is the EUSSR. Give us our vote and our right to self-determination or are the EUSSR too scared?