Gibraltar after Brexit: Looking for a New and Imaginative Model of Cross-border Cooperation in the EU Framework

Abstract

Brexit has directly impacted Spain’s relationship with the UK due to the Gibraltar issue. The British withdrawal from the EU has forced the redefinition of the European statute of Gibraltar, and its relations with Spain and the European Union, in institutional, legal and economic terms. In this context, novel mechanisms have also been devised to regulate cross-border cooperation with Gibraltar, which is frequently the subject of political ups and downs and changes with the different Spanish and British governments.
The cross-border cooperation of the territory of Gibraltar with the Campo de Gibraltar, Andalusia and Spain has had intermittent phases in its evolution over time. Within the British exit process framework, a new model has been agreed in successive EU-UK agreements that combine Hard Law (Primary EU Law) with Soft Law (Memoranda of Understanding – MOUs). This regulation has required a specific prior British-Spanish negotiation.
The first Withdrawal Treaty of 2019 has formed a peculiar cross-border cooperation system involving the UK, the EU, Gibraltar and Spain, through a series of MOUs interconnected with the Protocol on Gibraltar. The Protocol refers to the Tax Treaty and establishes concrete cooperation on citizens’ rights and cross-border workers; tobacco and other products; cooperation in environmental matters; and police and customs cooperation.
For its part, the Future Relationship Trade Agreement does not deal with the status of Gibraltar, as it has been preferred to devote a separate UK-EU Treaty to Gibraltar’s status with the EU, a Treaty that has yet to be negotiated and concluded. To this end, a prior Spanish-British ‘Principle of Agreement’ was agreed on 31.12.2020, then embodied in the Council Decision of 05.10.2021 authorising the opening of negotiations with the negotiating mandate and directives for the negotiation of the future EU-UK Treaty in respect of Gibraltar. This Treaty, currently under negotiation, foresees a complete and renewed legal status for Gibraltar in its relationship with the EU and Spain, with reinforced and guaranteed cross-border cooperation with the Campo de Gibraltar and Andalusia.
In short, the Brexit process seems to provide an innovative and imaginative model for cross-border cooperation with Gibraltar, bilaterally articulated by Spain and the UK and incorporated into the EU’s institutional and legal framework.