Principles founder on a rock

Date: 25/04/1996

By Ian S. Forrester QC

THERE is a land frontier within the territory of the EU where Community principles appear to be systematically disregarded.

If you wish to go from Gibraltar to Spain, especially in a car, you had better not be in a hurry. The queue snakes slowly round, sometimes for as long as four hours. Frontier officials' actions are inconsistent, apparently reflecting political considerations which have little to do with EC rules.

The origins of this neglected problem are to be found in history. In 1704, an Anglo-Dutch fleet seized the Spanish fortress and town of Gibraltar. Nine years later, at the end of the War of the Spanish Succession, negotiators met at a horse-trading session in Utrecht to complete a peace treaty involving several states.

It was agreed that Gibraltar should be formally ceded by Spain to the UK, but the negotiators could not agree on where to draw the line between Gibraltar and its neighbour. Whereas it is good practice for a conveyancing deed to refer to an attached map, Article X of the Treaty of Utrecht merely recorded that the town and castle of Gibraltar, with the port, fortifications and forts attached, would be ceded to the “Crown of Great Britain”.

The Latin text of Article X gave rise to as much debate as the multilingual versions of

the Maastricht Treaty. It obliged the British not to tolerate the presence of Jews or Moors there, and to offer Gibraltar back to Spain if sale was ever contemplated.

Several bloody sieges in the 18th century gave way to a period of some 150 years of non-violent discussions over the frontier's position.

When an airstrip was constructed on the territory in the 1930s, the debate became more intense. During the 1960s and 1970s, the frontier gates were closed completely.

In addition to the dispute over the border line, Spain contends that the existence of a colony in Europe is anachronistic. However, although UN committees have devoted lengthy talks to Gibraltar, it is an embarrassing fact that popular sentiment among Gibraltarians is overwhelmingly in favour of maintaining ties with the UK. In successive democratic elections for the 15-man House of Assembly, both the winning party and the opposition party have taken a similar line on this issue.

In 1973, Gibraltar became part of the Community, as a European territory for whose external relations the UK was responsible (in other words, a colony). As the constitution accords to the Gibraltarian government responsibility for internal affairs, Gibraltar is obliged to implement EC directives and has been doing so after a slow start.

The issue of the airport has been wretchedly controversial for years. After Spanish accession, it was hoped that there could be a normalisation of its status and expansion of its activities, confined essentially to a few flights to the UK and others to non-European destinations. By contrast, the spectacular development of the region around Malaga owes much to its airport, which enjoys the luxury of being entitled, as a matter of EC law, to operate flights to and from any member state.

After several imperfect diplomatic texts in the 1980s, a British-Spanish deal for the air terminal in 1987 foundered on popular opposition in Gibraltar. The chief minister proposed the construction of a new terminal on Spanish soil and the establishment of a new, truly international airport along the lines of those in Basel or Geneva, where all aspects of the functioning of the airport are agreed in detail bilaterally. Gibraltar Airport was excluded from a series of EC liberalisation directives because of the dispute.

Gibraltar's government, the owner of the airport, applied to the European Court for the annulment of the provisions of the directives excluding the territory. It claimed that although EC law could not normally be challenged by “third parties” under Article 173 as being of “direct and individual concern” to them, its claims should be heard as it was the owner of the property which had been singled out for inferior treatment.

Although Advocate-General Carl Otto Lenz expressed some sympathy, the ECJ found that directives were matters of general import which could not be challenged under Article 173. Since then, the airport has continued to operate at well below its capacity.

The ratification of the External Frontiers Convention is also blocked because of the dispute. Gibraltarian judicial authorities have been confiscating the speedboats used to smuggle drugs from North Africa, but the number of incidents is relied on by Spain to justify extreme vigilance at the land frontier.

The fact remains that nowhere in western Europe is peaceful and legitimate commercial and social intercourse across a frontier so hindered on a daily basis as it is at Gibraltar's frontier gates.

Article 7a of the EC Treaty calls for an area without internal frontiers in which the free movement of persons is ensured in accordance with the treaty. It is, indeed, by concentrating on Community law that a solution to the Gibraltar problem may present itself. It offers a vehicle for overcoming national differences, or at least making progress possible despite them.

Relations between Gibraltar and Spain should be internal Community relations, not external third country relations.

This article reflects the personal views of the author.