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Smoke and mirrors in Gibraltar

Freedom of movement of persons / COMMENTARY
Alex Lazarowicz , Mara Dambour

Date: 18/10/2013
This past summer saw the temperature rise between Spain and the UK over the intractable Gibraltar dispute. In addition to being an unwanted reminder of a simmering unresolved issue of territorial sovereignty between two Member States, this particular quarrel also impacts one of the most fundamental freedoms of the European Union: the freedom of movement of EU citizens. This freedom is being undermined and politicised through its use as a deflection tactic by the Member States in question, with EU citizens being the ultimate victims.
An escalation of tensions
This new wave of tensions first started in early August 2013 when Gibraltar dropped 70 concrete blocks in Gibraltarian waters – disputed waters, according to Spain. According to Gibraltar, this constitutes the last phase of an environmental protection programme that has been running for 30 years, aiming to create an artificial reef to replenish fish stocks and encourage biodiversity. However, Spain claimed that the blocks were dropped without its consent, with the real purpose being to prevent Spanish fishermen from fishing.
Not long after this, the government of Prime Minister Rajoy strengthened its Spain-Gibraltar border controls, resulting in long and exhausting queues at border. This was justified as a measure to combat tobacco smuggling, but it has been a long-standing issue between Gibraltar and Spain, so the timing suggests a direct link to the reef issue. Subsequently, the UK threatened to take action through the European Court of Justice, claiming incompatibility of such lengthy checks with the right to free movement of EU citizens. Weighing up its options, Spain considered imposing a €50 border crossing fee to compensate the losses of its fishermen, or closing the Spanish air space to flights bound for Gibraltar.
Spain’s complaints about the artificial reef are not particularly convincing. The reef was planned years ago and Spain used the very same ‘Gibraltarian’ model to build similar reefs on its shores in past decades. Furthermore, it appears that once the ‘fishing argument’ was shot down, Spain moved on to the recurring ‘smuggling issue’ to keep the tensions going.
This series of tit-for-tat has been complemented by unhelpful posturing on both sides, including the Spanish Guardia Civil taking pictures with the Spanish flag while inspecting the reef, a cross-party delegation of UK MPs going to Gibraltar on its national day to visit the border with Spain, as well as Gibraltar’s Chief Minister Fabián Picardo comparing Spain’s actions to North Korea and a return to times under the dictatorship of Franco. The temperature was further raised when the UK sent two ships towards Gibraltar’s shores, claiming this was part of a pre-planned exercise.
Rajoy’s speech at the United Nations only increased tensions further. Rajoy invoked the Falklands/Malvinas dispute in order to gain support from Argentina, a country which is part of the United Nations Security Council until 2014. He also recalled that Gibraltar is still subject to the  UN Committee 24 on decolonisation,  and on the list of ‘Non-Self Governing Territories’ – disputed by Picardo who subsequently told the UN General Assembly Fourth Committee last week that Gibraltar should not be on this list due to the autonomy it has under its 2006 constitution.
The whole dispute culminated in both governments asking the European Commission to step in: Spain asked for an inspection on smuggling while the UK asked the Commission to check whether the Spanish border controls constituted a breach of the freedom of movement of EU citizens.
The question of freedom of movement
Questions related to borders and freedom of movement are particularly complex because the three territories have different regimes. Spain is part of the Schengen area while the UK, and consequently Gibraltar, are not. Furthermore, Gibraltar has a special status: its EU membership is distinct to that of the UK since Gibraltar is excluded from four EU policy areas – Customs Union, Common Commercial Policy, Common Agriculture Policy and Common Fisheries Policy – and the requirement to levy VAT. In contrast, the right to move and reside freely in the EU does extend to Gibraltar. As a consequence, Spain – in line with the Schengen Borders Code – is allowed to carry out checks on persons and goods as long as they remain “reasonable and proportionate” without jeopardising freedom of movement. Thus, the crux of the issue is to assess the “reasonability and proportionality” of Spanish checks.
To answer both claims, the European Commission sent a “technical fact finding mission” on 25 September, with officials from the Commission shadowed by the press and representatives of the governments of Gibraltar and Spain. The delegation carried out evaluations on both sides of the border to cover aspects of border and customs controls, including smuggling. On the basis of this evaluation, the Commission will decide whether to take further action, but there is no deadline set for the decision.
Spain may well be able to justify the checks, given the longstanding smuggling issue as well as putting on a good face for the visit – prior to the Commission’s arrival, Gibraltar reported a softening of border checks on the Spanish side, accusing Madrid of trying to influence the evaluation of the Commission. If Spain has convinced the Commission, it is likely that it deems there to have been no violations of EU law.
In order to be truly impartial and reflect the situation on the ground, it would have been better if the mission had been unannounced. However, the mechanism for the Schengen evaluation currently in place does not allow for such practice; therefore, in reality, little will be resolved. This highlights the fact that the new Schengen evaluation mechanism which will be applied during the second half of 2014 is well overdue.
The politics beneath the surface
The real victims of these tensions, and especially the increased Spanish border controls, are the Spanish citizens who commute daily to Gibraltar for work, so one might wonder what Spain hopes to achieve with its actions. The most likely explanation lies in domestic politics.
Spain is going through difficult times, both economically and politically. With the economic crisis still afflicting Spain, Rajoy’s intransigence in the face of mounting pressure to allow a referendum on independence in Catalonia and the recent corruption scandal that involved the ruling Partido Popular party, focusing on Gibraltar is a useful diversion tactic from crucial internal problems.
However, the UK should similarly receive little sympathy. On the Gibraltar issue, it declared that Spain was attacking the freedom of movement of EU citizens. But this freedom is only defended when it suits the UK. The UK has spent much of 2013 raising concerns about ‘social tourism’ of EU citizens and fear-mongering about the number of Romanians and Bulgarians that will come to the UK following the end of transitional measures from 1 January 2014 for these EU citizens. Therefore, the UK should not be surprised if their complaints about freedom of movement fall on deaf ears. Indeed, the defense of such a highly valued fundamental right is really just a smoke screen for the real concerns of the impact of the Spanish border checks on Gibraltar’s tourism and economy.
Both Member States are undermining this European freedom and banging the populist drum. Spain is hampering the Gibraltar economy and making the lives of its own citizens more difficult. As for the UK, if it really cared about freedom of movement, they could consider membership of Schengen for Gibraltar, given its geographical situation and that it is not part of the UK-Ireland travel area.
This summer was one of smoke and mirrors, where two Member States have invoked EU rules to deflect the attention of their own citizens and, in the process, undermined the very freedom they were claiming to protect. Freedom of movement has taken another hit in the most unlikely of ways and places, as the spillover from the Euro crisis continues to make it an easy target amid deteriorating mutual trust amongst Member States.
Alex Lazarowicz is a Junior Policy Analyst and Mara Dambour was an intern at the European Policy Centre.
Disclaimer: The views expressed in this Commentary are the sole responsibility of the authors.

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