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In the view of the EU27 there is still a significant gap in the draft Withdrawal Agreement in respect of Gibraltar because there is no bilateral agreement between the UK and Spain on the issues that arise from the departure of the UK and Gibraltar from the EU.

The Commission’s revised draft WA of 19 March 2018 defines the territorial scope of the Agreement as including Gibraltar “to the extent that Union law was applicable to it before the date of entry into force of this Agreement” and a footnote recalls paragraphs 4 and 24 of the European Council guidelines of 29 April 2017 regarding Gibraltar.  Article 4 of those guidelines set out the general principle that withdrawal should be orderly and minimally disruptive.  Article 24 referred specifically to Gibraltar and stated:

  1. After the United Kingdom leaves the Union, no agreement between the EU and the United Kingdom may apply to the territory of Gibraltar without the agreement between the Kingdom of Spain and the United Kingdom.

A new agreement applying to Gibraltar could take the form of a separate Protocol alongside the main Withdrawal Agreement, in the same way that there is a draft Protocol on Ireland, but there is as yet no “placeholder” for this in the Commission draft.  Nor is there a proposal for a specialised committee to oversee arrangements relating to Gibraltar in the way that is proposed for the Cyprus sovereign bases and for Ireland (draft Article 158).

At the European Council meeting on 22/23 March 2018 the EU27 reiterated that final agreement on the Withdrawal Agreement is dependent on agreement between the UK and Spain relating to Gibraltar:

The European Council calls for intensified efforts on the remaining withdrawal issues as well as issues related to the territorial application of the Withdrawal Agreement, notably as regards Gibraltar, and reiterates that nothing is agreed until everything is agreed.

In her statement to the House of Commons following the March European Council meeting, the Prime Minister said:

  1. We have also been working closely with the Government of Gibraltar to ensure that Gibraltar is covered by our EU negotiations on withdrawal, the implementation period and future relationship. I am pleased that the draft agreement published jointly last week correctly applies to Gibraltar, but we will continue to engage closely with the Government of Gibraltar and our European partners to resolve the particular challenges our EU withdrawal poses for Gibraltar and for Spain.

There has been concern that the Spanish Government might use the “veto” which it has been given by Article 24 of the EU27 negotiating guidelines as a lever to obtain concessions over the sovereignty of Gibraltar. The UK Government has made it clear that it will not discuss sovereignty, but is willing to hold constructive discussions with Spain on other issues affecting Gibraltar. The Spanish Foreign Minister has said that he does not want the Brexit negotiations to be held hostage over Gibraltar and he appears to have the support of the main opposition party in the Spanish parliament on this.

However, the Spanish Government has repeatedly expressed interest in obtaining joint control of Gibraltar’s airport which is located on the isthmus that joins the Rock to the Spanish mainland. The Spanish Government regards the isthmus as not being covered by the Treaty of Utrecht by which the Rock was ceded to the British Crown in 1713.

There is concern that if the UK and Spain are unable to arrive at a bilateral agreement by the autumn of 2018, this could hold up the conclusion of the overall Withdrawal Agreement. The Chairman of the House of Lords Select Committee on the EU wrote to the Secretary of State for Exiting the EU, David Davis MP, on 28 March 2018 expressing concerns about the UK-Spain bilateral discussions and seeking reassurance that Gibraltar would be fully covered by the transitional arrangements for UK exit.

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