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Gibraltar’s constitutional status

Gibraltar is a British Overseas Territory (BOT) and is in the European Union, having joined the then European Economic Community (EEC) with the UK in 1973. But under the terms of the UK’s membership, Gibraltar is not in the Customs Union, Common Commercial Policy, Common Agriculture Policy, Common Fisheries Policy and the VAT regime. EU law is applicable in Gibraltar except in these areas and much of it is implemented under Gibraltar’s European Communities Act 1972.

The Gibraltar vote in the EU referendum

In the referendum on continued EU membership on 23 June 2016, nearly 96% of Gibraltar’s electorate voted to stay in the EU. Analysts suggest the high remain vote was because EU membership has been beneficial for Gibraltar’s economy and because many Gibraltarians believe it has been helpful with regard to Spanish sovereignty ambitions.

Spain’s sovereignty claim

Spain maintains a sovereignty claim over Gibraltar, but the UK Government’s position is that it will not change the constitutional status of Gibraltar as a BOT without the approval of its people. In a referendum in 2002, with a turnout of 88%, around 99% of the electorate voted against a proposal for joint UK-Spanish sovereignty. At the United Nations Gibraltar has argued in support of its right to self-determination.

There have been various forums and formulas for talks between the UK, Spanish and Gibraltar governments about its future and its status, but there are currently no on-going discussions.

Gibraltar’s concerns about Brexit

Since the EU referendum the Gibraltar Chief Minister, Fabian Picardo, has given evidence to the Commons Committee for Exiting the EU and the Lords European Union Committee. Gibraltar’s main concerns regarding Brexit are:

  • Protection from a possible Spanish sovereignty claim
  • The impact on Gibraltar’s economy
  • The Gibraltar-Spain border
  • Future trade and financial services opportunities for Gibraltar

The protection of Gibraltar’s interests

The UK Government has said it will respect Gibraltar’s constitutional status, that keeping the Gibraltar-Spain border functioning is a priority, that it recognises Gibraltar’s special interests and that it will work with the Gibraltar Government during the Brexit negotiations.

European Council Guidelines – an opportunity for Spain?

The Guidelines adopted at the end of April by the European Council, which will form a framework for the Brexit negotiations, state that an agreement between the EU and the UK after it has left the EU cannot apply to Gibraltar without Spain’s consent. This has given rise to speculation that Gibraltar could be used as a bargaining chip in the forthcoming negotiations.

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