22nd July 2021
Publication of the European Commission’s draft mandate for negotiations on a UK/EU treaty on Gibraltar earlier this week triggered a process of technical discussions in Brussels that will last until after the summer, and which could yet lead to changes in the document.
Commission officials will meet this month and in September with representatives from all EU member states to discuss the proposed negotiating guidelines in detail, the first in a three-step process culminating in ministerial approval.
But the UK and Gibraltar governments’ ice-cold reaction to the mandate could prompt a rethink, particularly given Spain’s publicly expressed desire to negotiate a treaty beneficial to communities on both sides of the border and in line with the New Year’s Eve framework agreement.
On Thursday, Brussels was urged to become “a partner, not a hindrance” to treaty talks that aim to ensure post-Brexit stability and prosperity on both sides of the border without crossing long-established red lines on sovereignty, jurisdiction and control.
The pressure for the Commission to reassess its proposed negotiating position is already mounting, not just in discussions behind closed doors but in public statements following publication of the mandate.
On Tuesday, Foreign Secretary Dominic Raab said the UK, Gibraltar and Spain had “carefully agreed a pragmatic framework agreement” in full consultation with the Commission, adding that the draft mandate “directly conflicts with that framework”.
“It seeks to undermine the UK’s sovereignty over Gibraltar and cannot form a basis for negotiations,” he said, urging the Commission to “think again”.
A day later in London, Jose Manuel Albares, the Spanish Foreign Minister, sought to reassure Mr Raab that Spain remained committed to the framework agreement as the key to negotiating a treaty acceptable to all sides.
“We are going to comply with everything agreed on the 31st of December and that is what I have told [Mr Raab] and we are going to request the assistance of Frontex,” Mr Albares told reporters after the meeting, adding: “We have to create a climate of trust.”
And yet, even before this week, Spain’s State Secretary for European Affairs, Juan Gonzalez-Barba, had already warned that convincing the Commission to reflect the spirit of the New Year’s Eve agreement in the mandate “hasn’t been easy”, given the legal complexity of what the treaty seeks to achieve.
The focus now shifts back to Brussels, where a process of technical discussion has commenced that will drag into the autumn given EU institutions largely close down during August.
An EU official in Brussels told the Chronicle that the Commission has several sessions planned in July and September in the Council Working Group – which brings together Commission officials and representatives of member states - to explain and discuss its proposed negotiating guidelines in detail.
“In terms of process, the proposal is first discussed at technical level, following which it goes to the level of ambassadors,” the EU official said.
“The final step would be the adoption by the Council at ministerial level.”
The official could not confirm a timetable for the process but the final mandate is unlikely to be approved before mid-September at the earliest, after which the Council would ask the Commission to nominate the EU’s chief negotiator for the talks.
In London on Wednesday, the UK – with Gibraltar’s prior backing - and Spain extended Memorandums of Understanding agreed in the Brexit withdrawal process that, for now at least, will help foster confidence and ensure normality at the border pending the outcome of the treaty process.
What shape the final guidelines will take remains to be seen, but the UK and Gibraltar have made their position very clear and there will have to be significant changes if there is to be any prospect of negotiations, let alone a treaty.
“No one should believe that we would ever be prepared to accept the things set out in the EU’s draft negotiating mandate,” Chief Minister Fabian Picardo said.
“We will not even be prepared to accept things that are close to that.”
“Gibraltar remains fully committed to the New Year’s Eve Agreement. The United Kingdom has already said they remain fully committed also.”
“But the notion that Spanish law enforcement officers might be present on our land, at our port or airport, is one that the Government or the people of Gibraltar will not accept.”
“That is not something that can be finessed or negotiated. That is a non-negotiable red line. I have said so throughout this process and I will not change my mind or my position.”
“The Cabinet as a whole will not change the position of Gibraltar. Anyone who wants to argue against that or think that they can negotiate around it are driving this process into a brick wall.”
Mr Picardo went further and said “most other parts” of the EU mandate were “equally unacceptable”, including on matters related to asylum, residence and commercial arrangements.
“There are too many problematic parts of the mandate for it to form the basis for the successful negotiation of a treaty,” he said.
“For that reason, I very much welcome Jose Manuel Albares’ statements in London [on Wednesday] recommitting Spain to the terms of the New Year’s Eve Agreement and to the Frontex aspects of it in particular.”
“We have a lot of work to do in order to be able to bring to fruition in a UK/EU treaty the enthusiasm and optimism that welcomed the New Year’s Eve Agreement in Gibraltar and the region around us.”
“I will not give up, but the EU needs to become a partner in the process and not continue to be a hinderance to it.”
“I hope that with more information and more cooperation between relevant officials, we may see some progress for the benefit of citizens of all the Member States, and that we will not see the historic opportunities that the New Year’s Eve Agreement presents for Gibraltar and the Campo de Gibraltar sacrificed.”
The process, already fraught with complexity, could be further hampered by the wider strained relationship between the UK and the EU on issues such as the Northern Ireland protocol.
Since it completed its exit from the EU at the end of last year, Britain's ties with the bloc have reached new lows, with both sides accusing each other of acting in bad faith over an agreement for post-Brexit trade with Northern Ireland.
On Thursday, Prime Minister Boris Johnson urged European Commission President Ursula von der Leyen to consider seriously Britain's proposals to change what he called the "unsustainable" way a Brexit deal is governing trade with Northern Ireland.
London accuses Brussels of being too purist, or legalistic, in interpreting what the deal means for some goods moving from Britain to its province of Northern Ireland. The EU says it is adhering to the deal, which Mr Johnson signed just last year.
Britain proposed on Wednesday to renegotiate parts of the Northern Ireland protocol that govern the movement of goods such as chilled meats, and to dispense with EU oversight of the accord.
The EU has rejected the demand to renegotiate, with Mrs von der Leyen repeating the bloc's message on Twitter, saying: "The EU will continue to be creative and flexible within the protocol framework. But we will not renegotiate."
Some observers have raised fears that the trust issues between the UK and the EU on Northern Ireland could spill over into efforts to reach agreement on Gibraltar, a point raised by the Earl of Kinnoull this week during a debate on the Northern Ireland protocol in the House of Lords.
The UK Government, however, sought to play that risk down.
“The issue of Gibraltar that he raises obviously is a dispute about a different issue,” Brexit minister Lord Frost replied.
“There are analogous elements, but it is important to keep these things separate.”
“The mandate that the EU agreed [on Tuesday] does seem to be problematic in a number of ways, as [the Foreign Secretary] made clear.”
“But I do not think it makes sense to connect one thing with another.”
“We deal with each of these issues on its own terms and try to proceed in a constructive way.”