The debate on the amendment of the visa regulation

As part of the Contingency Action Plan for a withdrawal without an agreement between the UK and the EU, the Commission proposed to grant UK citizens visa-free travel to the EU.” UK citizens coming to the Schengen area for a short stay (90 days in any 180 days) would be granted visa-free travel. If the UK had withdrawn from the EU without an agreement, the visa-free travel mechanism would have been applied automatically. The visa exemption will also be applicable after the transition period. Obviously, the visa-free mechanism is based on the expectation that the UK will grant full visa reciprocity to the nationals of all Member States. In the event that the UK introduces a visa requirement for nationals of at least one Member State in the future, the existing reciprocity mechanism would not apply anymore.

A footnote was included in Article 2 of the Regulation on visa-free travel after Brexit, at the request of Spain, qualifying Gibraltar as ‘a colony of the British Crown’. The text also states that ‘there is a controversy between Spain and the United Kingdom concerning the sovereignty over Gibraltar, a territory for which a solution has to be reached in light of the relevant resolutions and decisions of the General Assembly of the United Nations’.’'¹ The reference to Gibraltar as ‘a colony of the British Crown’ led to a very’ critical reaction by the British Government, arguing that it is not a colony because it is ‘a full part of the UK family and has a mature and modem constitutional relationship with the UK. This will not change due to our exit from the EU.” Spain’s original demand was to state that Gibraltar fonns part of the UN list of non-self-governing territories pending decolonization. Since French Polynesia and New Caledonia are also included in the UN list, France was very reluctant to support the Spanish position. The final compromise reached between Spain and France was to qualify Gibraltar as ‘a colony of the British Crown’. The LIBE Committee opposed the inclusion of the footnote that qualified Gibraltar as a colony. A group of MEPs were not willing to accept the terminology proposed by the Council because of its colonial connotations. Ironically, the Rapporteur of the dossier was the British MEP Claude Moraes.

Conclusions

The purpose of the Protocol on Gibraltar is focused on ensuring an orderly withdrawal from the EU in relation to Gibraltar and addressing any potential negative effects on the close social and economic relations between Gibraltar and the surrounding area of Spain. However, with the exception of Article 1 on citizens’ rights, the rest of the provisions of the Protocol will only be applicable during the transition period. There are no precedents that could be a reference for the situation that Gibraltar faces. Brexit has led to the non-applicability of Article 355(3) TEU. However, breaking up the relations between Gibraltar and the EU would have very negative consequences, both for Gibraltar and for the Spanish population of ‘Campo de Gibraltar’. The Political Declaration setting out the framework on the future relationship does not include any reference to Gibraltar.’⁶ The future relationship between Gibraltar and the EU will be governed by the agreements that will be negotiated between the EU and the UK.

The Protocol on Gibraltar and the MoUs agreed between Spain and the UK in November 2018 refer to issues that have been detrimental to the Spanish interests in the last decades, such as the smuggling of tobacco products, environmental problems and unfair fiscal competition from Gibraltar. Even though the MoUs are not legally binding instruments, they have allowed Spain to get important concessions from the UK in the most sensitive areas for Spain. Therefore, the Brexit negotiations have allowed Spain to gain leverage in the dispute while postponing a direct push for sovereignty. For the first time since Spain joined the EU, it has managed to get a more balanced relationship with the UK with respect to Gibraltar. Gibraltar faces potentially significant economic consequences as a result of Brexit. The extent to which these consequences will be realized depends to a large extent on the outcome of the negotiations between the UK and the EU, and on the reaction of Spain. The agreement or agreements on the future UK—EU relationship could nevertheless include specific bilateral arrangements agreed between Spain and Gibraltar, for example, in relation to local border traffic management.

As regards the interpretation of Article 184 of the WA, the European Council and the Commission fully understood the sensitivity of this issue for Spain and found a satisfactory solution underlining the solidarity of the EU with Spain on this matter. The adoption of two interpretative declarations by the European Council and the Commission (one on Art. 184 of the WA and another on the territorial scope of the future agreements) gave solid clarifications as regards the interpretation of Article 184 W A. There is no doubt that Spain could use its veto power in the future with respect to any future agreement between the EU and the UK that is applicable to Gibraltar.

Probably, Spain will not seek to involve the sovereignty’ dispute in the negotiations of the future Comprehensive Free Trade Agreement and in other areas of cooperation outlined in the Political Declaration (law enforcement and judicial cooperation in criminal matters, foreign policy, security and defence and thematic areas of cooperation).’⁷ Despite the clear interest of both the UK and Spain to continue a close relationship between the British colony and ‘Campo de Gibraltar’, the debate on the amendment of the visa Regulation which aims to grant visa-free travel to British citizens shows clearly that Gibraltar has the potential to contaminate the discussion on more substantial implications of Brexit and, in particular, the future comprehensive partnership that will be negotiated between the UK and the EU. Failure to find solutions to the issues that concern Spain in respect of Gibraltar will have an impact on the negotiations between the EU and UK. It is understandable that Spain is seeking to use the Brexit negotiations to gain leverage in the dispute with the UK and to take back a certain degree of control. Spain is pushing for the inclusion of a similar footnote in all future EU legislation adopted as regards Brexit. However, the support of other EU Member States cannot always be taken for granted. Arguably, a compromise between both countries may be included in a future framework agreement between the EU and the UK, following the precedent of the Protocol on Gibraltar.