Jan 23 - Dr. Garcia European Policy Centre Speech - Full Text
Here's the full text of Deputy Chief Minister Dr. Garcia's speech at the European Policy Centre yesterday. Throughout, he touched upon the Spanish position on frontier controls and other issues faced by Gibraltar:
'Good afternoon,
It is a pleasure to be here today for this briefing on the situation of Gibraltar in the European Union. I am very grateful to the European Policy Centre for the opportunity.
I am grateful firstly because the position of Gibraltar is generally not well known and secondly because it gives me the opportunity, on behalf of the Government and the people that I represent, to provide an accurate assessment of a position which has often been misrepresented.
I noticed that the written invitation made a reference to the Treaty of Utrecht of 1713. I had not intended to go that far back in this exposition, but I will do so only to clarify a couple of points.
Gibraltar was taken by an Anglo-Dutch force in 1704. The majority of Spanish civilians were given the option of leaving Gibraltar and most chose to do so. It is also worth point out at this juncture, for those of you who like numbers, that Gibraltar was Spanish for 244 years from 1460-1704. It has now been British for 311 years.
The Gibraltarian of today is the product of immigration from places like Malta, Genoa, the United Kingdom, Spain and other parts of Europe. We are almost, on a miniscule scale, like the United States where the American of today was created over the years by immigration from Europe and elsewhere.
It is worth noting that we have been around for longer than the United States has existed as a country.
Article X of the Treaty of Utrecht contains the cession in perpetuity of Gibraltar to the Crown of Great Britain. Perpetuity means forever. It also says that if the Crown of Great Britain wishes to sell, grant or alienate Gibraltar then the Crown of Spain should be given first choice.
Spain has interpreted this to mean that the inhabitants of the territory can have no say in their future political status. Gibraltar does not agree and has suggested that this point should be tested in Court. Spain has refused. It is well known that the legal right to self-determination did not exist in 1713 when Kings and Princes bandied about towns and countries from one to another regardless of the wishes of their inhabitants. It is today a cardinal principle of international law.
In this day and age the wishes of people must come first.
I want to push the clock forward now by three hundred years or so, to the present day and to the question at hand of Gibraltar in Europe.
Gibraltar is an Overseas Territory of the United Kingdom. We are in fact the only British Overseas Territory that is a part of the European Union. We are also the only territory of the Union that is in it by virtue of Article 355(3) TFEU as a “European territory for whose external relations a Member State is responsible”.
This is therefore a status that, as your invitation rightly says, is "truly unique.”
There is nobody else in Europe under this clause of the Treaty.
Article 28 of the UK Act of Accession shows that we are outside the customs union, the VAT area and the Common Agricultural Policy of the EU. We are also outside the Schengen area like the United Kingdom. This raises different issues for us because we are connected to the European mainland and the United Kingdom is not, but I will come to that later.
Gibraltar, although British, it is a separate jurisdiction to the United Kingdom. This means that we have our own Parliament and our own Government. Gibraltar’s legal system is based is modelled on that of England and Wales. Our legal professionals are trained in the United Kingdom. We are responsible for the transposition of European Union directives into Gibraltar law to the highest standards, separately to what the Westminster Parliament does for itself in the United Kingdom.
The Government of Gibraltar has constitutional responsibility for everything except external relations, defence and internal, security. The matters for which the Government is responsible includes matter which have an EU dimension. Our Ministers will be active in Brussels dealing with these.
We print our own stamps, have our own international telephone code and produce our own currency, the Gibraltar Pound which is pegged to the Pound Sterling. Last year, our football team played its first international matches as a full member of UEFA and we are proud to have held the World Champions Germany to a 4-0 result. Does this make us better than Brazil who lost 7-1? This is a discussion for another day.
I am also told that Belgium has not beaten Germany in a full international football match since the 1950s, so Gibraltar is in good company!
The Legislature of Gibraltar consists of Her Majesty the Queen and the Gibraltar Parliament. Executive Authority in Gibraltar vests in Her Majesty the Queen and is exercised by the Government of Gibraltar as provided in the Constitution. This means, and it is important from a legal and constitutional point of view, that the Queen is not Queen in Gibraltar by virtue of being Queen of the United Kingdom. Her Majesty is actually and separately the Queen of Gibraltar in law, like she is of many other territories like Canada, Australia and New Zealand.
So Gibraltar is the territory of the European Union.
The people of Gibraltar, who are United Kingdom Citizens, are therefore citizens of the European Union.
Citizens of the Union living in the territory of the Union have obligations and they have benefits. The obligations are to comply with the laws of the European Union, the Treaties, Directive and Regulations.
I was here in Brussels last year when the Chief Minister announced that Gibraltar was fully compliant with all its EU obligations. In other words, we were up to date with the transposition of EU directives into Gibraltar law.
In the same way as we comply with the rules of the club, we expect the club to keep to its side of the bargain and allow us the benefits. Gibraltar is, generally speaking, a pro-European community. Certainly a country where the public regards Europe in a completely different light from the public in the United Kingdom.
The irony is that a community of pro-European British citizens have often felt hard done by over decisions which affect them taken by the European Union.
It is fair to say that Gibraltar's existence in Europe was relatively uneventful; almost boring from when we joined in 1973 until the year 1986. This was because in1986 Spain joined the then European Community and the fireworks begun. Before then, Europe had been a distant shadow in the mist far away in the Pyrenees. Now Europe came to our doorstep.
Spain's accession to the club had a number of consequences for Gibraltar. The first was that the land frontier between Spain and Gibraltar had to open before Spain was admitted into Europe. The gates had been slammed shut by General Franco in 1969. They remained closed for nearly ten years after Franco's death until they opened in 1985. Gibraltar at the same time advanced EEC rights to Spaniards before Spain joined.
It is important to note that the United Kingdom did not insist that Spain should drop its sovereignty claim or even drop all the restrictions against Gibraltar which had been imposed by General Franco as a precondition of Spanish entry.
Therefore many of the maritime and air restrictions against Gibraltar remained in place when Spain joined Europe and there has never been a free flowing frontier in place.
In retrospect this was a mistake. These issues should have been ironed out before Spanish accession.
It is worth noting that some of the Francoist restrictions remain in force to this day. Madrid continues to ban military overflights of Spain by NATO aircraft if their destination or point of origin is Gibraltar. Similarly NATO vessels cannot call at a Spanish port if their previous port of call was Gibraltar. Civil aircraft are prohibited from overflying Spain at the point of landing in or leaving Gibraltar and often have to perform a sharp turn in the Bay before they touch down or after they take off.
It needs to be said though that, for a brief moment in time, there was a genuine glimmer of hope that the Spanish claim to the sovereignty of Gibraltar would dissolve in a developing European family with common interests.
This expectation proved to be short-lived.
Instead of allowing Europe to dissolve the question, successive Spanish Governments have adopted a policy of firstly seeking to exclude Gibraltar from Europe and secondly of using the European Union as a means to advance their sovereignty claim.
This was seen very clearly only eighteen months after Spain joined. Madrid objected to the air liberalisation package planned in 1987 on the basis that it applied to Gibraltar Airport. I should emphasise at this point that Community Law on civil aviation had always applied to Gibraltar and that no other Member State had ever objected to this. Spain now wanted joint control over the airport as the price to pay for the inclusion of Gibraltar.
The Spanish actions in July 1987 held up air liberalisation for the whole of Europe.
Within six months, this led, with the agreement of the then United Kingdom Government, to the suspension of Gibraltar from the measure unless we accepted joint control over the airport first.
It was real politics at its worst - outright blackmail. Gibraltar was put in a position where the legitimate legal right of the territory to participate in an aviation measure as a part of Europe were subordinated to the Spanish sovereignty claim.
The legal rights of the Territory and its inhabitants were therefore sacrificed on the altar of political expediency. When Gibraltar challenged its exclusion in the European Court, the Court refused to listen to the substance of the case and instead ruled that Gibraltar did not have locus standi.
The offshoot was that Gibraltar Airport was suspended from all aviation measures from 1987 until 2006.
In 2006 the then Spanish Socialist Government formally agreed with the United Kingdom and Gibraltar Governments that it would no longer seek the suspension of Gibraltar Airport from EU civil aviation measures. It was also agreed that all measures that Gibraltar had been excluded from would be extended to it and that Gibraltar would construct a new air terminal parallel to the frontier fence with direct access to another building on the Spanish side.
Gibraltar kept to its part of the bargain. A new air terminal was built next to the frontier fence at a cost of over 80 million euros to the Gibraltar taxpayer. There was no EU funding for this as had been hinted at one point. The terminal opened at the end of 2011.
In the meantime, unfortunately, the Government in Spain changed as the terminal opened. The new Partido Popular Government reversed the policy of their Socialist predecessors and moved from cooperation with Gibraltar to outright confrontation.
The consequences of this are still being felt with a three-pronged attack against Gibraltar by land, air and sea. This is a continuation of what General Franco himself had started half a century before.
The result is evident for all to see.
- Spain withdrew from the Trilateral Forum for Dialogue with the UK and Gibraltar Governments.
-There is no access to the new and expensive air terminal from the Spanish side.
- Madrid is now once again seeking the exclusion of Gibraltar Airport from EU aviation measures when they had promised not to do so.
The policy of the present Spanish Government is unacceptable, it is illegal and it is anti-European. It raises the fundamental question in international relations of a country blatantly dishonouring what they had previously signed up to.
This action has affected not only Gibraltar - which is at the receiving end on the ground - it has also had consequences for Europe as a whole.
Last month, because of the new Spanish policy, there was disagreement in the European Council about the application of Single Skies 2+ to Gibraltar.
The dossier on air passenger rights is also held up by Spain.
The EU aviation agreement with Ukraine has suffered the same fate.
There will be others to follow unless Madrid is forced to honour what they had agreed to.
Spain cannot be allowed to hold the whole of Europe to ransom in pursuit of her narrow political interests.
Any solution to this impasse must fully respect the status of Gibraltar Airport as an airport of the European Union, and the status of the people of Gibraltar as Citizens of the Union. The United Kingdom has itself already indicated that it will not rule out any option, including legal action, if Gibraltar is suspended.
The most simple solution would be to return to the formula signed up to by the previous Spanish Government and which was abandoned by Madrid in 2011. This worked well for all concerned and allowed EU aviation measures to progress without prejudice to the respective legal positions of the UK and Spain over the land on which the airport is situated.
The second option is simply not to mention Gibraltar at all in the legislation.
There is more than a point of principle here. The air passenger rights legislation will create certain benefits for EU nationals travelling through the airports of the European Union. It does not make any sense that EU nationals travelling through Gibraltar Airport should have less rights than their counterparts travelling through other EU airports.
The Spanish position therefore seeks to create a regime which is discriminatory in nature, which excludes Europeans from their legitimate rights in Gibraltar and which purports to disapply the law of the Union from a territory where EU civil aviation law should apply automatically.
This potential discrimination runs against everything that Europe is about.
While this would affect those travelling to and from Gibraltar by air, Spain is also engaged in undermining the right to free movement of those who wish to travel to and from Gibraltar by land.
The European Commission had sent two inspection visits to the land frontier between Spain and Gibraltar in September 2013 and in July 2014. There have been recorded delays of up to eight hours for EU nationals crossing what is, after all, an internal EU border. The delays are the result of intensive controls conducted by the Spanish frontier authorities on persons and vehicles crossing the border in either direction.
The European Commission itself has described the checks which create the most lengthy delays as "disproportionate". They have urged Spain to carry out infrastructure works at the border, to check cars in the red lane without stopping vehicles on the green lane and to desist from 100% checks on every single car crossing the border.
Spain has also been told that such controls to vehicles and persons leaving Spain and entering Gibraltar should be reduced or eliminated completely.
There is no argument that Spain is entitled to conduct light immigration and customs checks at the border, it is the intensive and deliberately disproportionate manner in which the checks are carried out that is the problem.
This situation has created a new Berlin Wall in a Southern Mediterranean region of Europe.
The majority of persons affected are ten thousand EU nationals who work in Gibraltar and who live in Spain and who have to cross the border in and out every day. The irony is that bulk of those workers are Spanish nationals.
This is why Spanish Trade Unions, Chambers of Commerce and politicians on the Spanish side of the border continue to complain incessantly to their own Government and to the European Commission.
The other group affected are tourists.
Gibraltar itself has already suffered a drop of over £40 million in tourist expenditure. The number of cars fell at one point by nearly half. The number of persons crossing the border continues to drop year on year.
The retail sector on the Spanish side of the border has complained that business is down by 30% as Gibraltar residents avoid Spain because of the delays.
This is not what Europe is about. In fact, it is the complete opposite.
When the intensive checks at the border commenced in the summer of 2013, during one weekend the Government of Gibraltar had to distribute ten thousand bottles of water to people who had been waiting in the queue for eight hours in thirty degrees of heat.
We have had to construct a holding area for about 700 cars and a second similar holding area behind it.
Once again the Partido Popular Government of Spain has preferred conflict to cooperation. Gibraltar now looks to the Commission, as the guardians of the Treaties, to protect the right to freedom of movement of EU nationals through an EU border.
I have covered air and land issues.
At sea, in 2008 Spain proposed and the Commission designated, an area of British Waters around Gibraltar as Spanish for environmental protection purposes. A few years earlier, the same waters had also been designated as a UK site for the same purposes.
This is another example of Spain using the EU in a transparent attempt to advance its sovereignty claim, even though that sovereignty over the waters is indisputably British under the United Nations Convention on the Law of the Sea.
There are now hundreds of recorded entries by Spanish warships and state vessels into British Waters. The danger is that one day there could be a serious accident.
I said earlier that the people of Gibraltar believe in the concept of Europe. This concept of pro-European British citizens is almost a contradiction in terms.
However, those ideals have been increasingly dashed over the years because Europe has not been more assertive in our defence.
Therefore,
Spain continues to seek to discriminate against Gibraltar in aviation matters.
Spain continues to peruse a policy of border blockade by land.
Spain continues to invade Gibraltar waters on a regular basis.
What would happen in the event of a UK exit from the European Union? The answer, I have no doubt, is that the situation for Gibraltar would be far worse than it is today. This is an argument in favour of continued UK membership.
The Government of Gibraltar believes that we should remain as a part of the European Union. The UK has agreed that their in/out referendum would be extended to cover Gibraltar. It is probable that we could be faced with a scenario where the UK might vote to exit Europe and where Gibraltar would vote to remain inside.
This would create a political and constitutional issue for the UK-EU-Gibraltar relationship.
All this is a hypothetical situation at present. A UK exit would require the election of a majority Conservative Government in London in May of this year. It would require a Referendum to take place and for the exit vote to succeed in that Referendum.
While such a development in the UK would have huge negative implications for Gibraltar, a similar earthquake on the Spanish political landscape which brought Podemos to power in Madrid, as some opinion polls suggest, might have a distinctly positive impact on the opportunity for Gibraltar’s people to exercise freely their right as EU citizens: but I leave this to you.
There is work going on behind the scenes. Gibraltar, for example, has been included by the UK Government in its balance of competences review on the impact of the European Union.
In a separate move, during Europe Day last year, Gibraltar's Chief Minister announced a study into the possibility of Gibraltar joining the Customs Union and Schengen. This would mean no checks at the border with Spain, but would entail a complete repositioning of our economy.
The reality is that at a time when many in the United Kingdom advocate less Europe or even no Europe at all, Gibraltar for its part is actually contemplating more Europe.
We want more Europe with our position in it fully respected and upheld.
There are hundreds of millions of Europeans in 28 Member States of the Union. There are also 30,000 Europeans in a small and often forgotten corner of the Union at the entrance to the Mediterranean Sea. I submit that the legal rights of a small population and the Treaty rights of a small country cannot be any less important because of our small size.
The Government and people of Gibraltar would certainly welcome any support in securing those rights for the future.
Thank you for listening.'
