Effect of the EU Referendum on Gibraltar

Gibraltar is a British Overseas Territory for whose international relations the UK is responsible. It has a high level of internal self-government under its 2006 Constitution.

In the referendum on whether to leave or stay in the EU, with a turnout of 84%, 96% of the Gibraltarian electorate voted to remain in the EU.

The 1972 UK Act of Accession to the then European Economic Community (EEC) applied the EEC Treaties to Gibraltar, with the exception of the Customs Union, Common Commercial Policy, Common Agriculture Policy/Common Fisheries Policy and requirement to levy VAT.  Gibraltar has been in the EU since 1973 as part of the UK’s membership and applies EU law except in these four areas.

Spain has maintained a sovereignty claim on Gibraltar at various times since ceding it to Britain in 1713 under the Treaty of Utrecht. Bilateral and trilateral talks have started and stalled in recent decades. Immediately after the referendum the Spanish Government said it would revive an earlier proposal for joint sovereignty of Gibraltar, with the promise of continued EU membership for the Rock.

Successive UK governments have maintained the position that they will never transfer the sovereignty of Gibraltar against the wishes of the people of Gibraltar. But neither can the UK Government guarantee EU membership for Gibraltar if the UK leaves the EU.

Brexit will not alter Gibraltar’s constitutional status in relation to the UK, but it will have implications for Gibraltar’s economy and its relations with Spain.

The border between Spain and Gibraltar was closed between 1969 and 1985, shortly before Spain joined the EEC. EU free movement rules have meant that the border has remained open ever since, in spite of Spanish obstructions (over-zealous border checks and regular incursions into the waters around Gibraltar). If the UK leaves the EU and does not apply to stay in the European Economic Area, free movement will no longer apply. Spain will be able to close the border and establish border and passport controls, and the Spanish Government indicated in May 2016 that it might do so if the UK voted to leave the EU.

The Gibraltar Chief Minister, Fabian Picardo, has held talks with the Scottish First Minister, Nicola Sturgeon, to discuss possible options for the future. One suggestion is that they (and perhaps Northern Ireland, which also voted to remain) could maintain the UK’s membership of the EU while England and Wales leave. However, this raises difficult constitutional and legal problems in domestic and international law.