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Report on Gibraltar and the European Union's Rules on the Free Movement of People

by ECAS on behalf of The Gibraltar Association for European Rights

GENERAL EXPLANATORY INTRODUCTION

Brussels, May 1997

In November 1996, at the request of the Gibraltar Association for European Rights ("GAER"), an ECAS member, Tony Venables and Michael Llamas carried out a detailed analysis of the situation at the Gibraltar/Spain frontier. Annexed is the programme of this visit and a list of the people we met. We wish to express our gratitude to Cecil Isola for the hospitality he provided us and for setting up such complete programme covering meetings with the government, the opposition and a wide range of other interests. The spirit of the Report is to be pragmatic and to look for solutions to alleviate the border controls which ought to be acceptable to the authorities. Our visit on 9-11 November 1996 was greatly assisted by a coincidence; it followed closely a visit by Anita Gradin, member of the European Commission.

It is perhaps necessary to explain first why the visit took place. On 1 January 1993, ECAS opened a European Telephone hotline to test frontier controls on people, which ought to have disappeared by that date with the creation of the internal market. We received hundreds of telephone calls, faxes and letters from Gibraltar and presented a complaint to the European Commission about the excessive frontier delays - from 1 to 4 even 6 hours - at the border with Spain. The Commission considered, rightly or wrongly, that it was unable to act on a complaint which was merely a reflection of the general problem of the maintenance of border controls within the Union.

In April 1994. ECAS sent Michael Llamas to Gibraltar to explain that we had succeeded in making the European institutions more aware of the problems at the border, but that the Commission was not willing to act. He proposed, as an alternative, to attempt to introduce a case through a Spanish court which could be referred to the European Court of Justice. In our view, that remains an option, but there is a natural lack of confidence in litigation in Spain and a preference by citizens for more pragmatic solutions. Our second recommendation was however followed up i.e. the formation of an association to defend European citizens rights in Gibraltar independent of political parties and commercial interests.

The other reason for the visit was that, as result of the position taken by Spain, Gibraltar's become a major blockage on the problem of the elimination of border checks on people regardless of nationality, within the Union as a whole. The EU's External Frontiers Convention ("EFC") was vetoed by Spain as a result of this Member State's wish to exclude Gibraltar from its scope of application. A more normal and predictable situation at the frontier with Spain would help trigger a European Union wide solution. Such a solution could come about on one or two tracks, or a merger of the two:

- since 1993, the Schengen agreement, after four postponements, eventually offered a limited geographical solution, as from March 1995, with the abolition of internal borders between Belgium, Luxembourg, The Netherlands (where they were already non-existent by virtue of the Benelux Union) and France, Germany, Spain and Portugal. Other EU countries and Scandinavia as a whole have joined but not yet implemented the agreement, which looks set eventually to extend to Central and Eastern Europe when those countries join the Union.

- the Commission which took office on 1 January 1995 made the Europe of the citizen a major a major priority. This helped to unblock, six months later, draft directives on the elimination of border checks on EU citizens and third country nationals. The European Parliament delivered an opinion recommending that internal controls should be eliminated by the end of 1996, ahead of any EU-wide agreement on external borders, whereas the Commission makes such a move conditional on the contrary, on common external border controls being put in place.

Gibraltar is a vital piece of this complex jigsaw. Even if the European Parliament were to be followed by governments, there would have to be an agreement sooner or later on the External Frontiers Convention, which is currently held up by Spain. PART 1: GIBRALTAR - STATUS AND MEMBERSHIP OF THE EUROPEAN UNION

It is perhaps convenient to set the problem of the Gibraltar/Spain border in the context of a succinct historical background which encompasses both the political and constitutional development of Gibraltar and its membership of the European Union.

1.1 GIBRALTAR'S STATUS GENERALLY

In a true European Union, a bilateral dispute over sovereignty must be seen as an outdated anomaly. Gibraltar was captured by Britain during the War of the Spanish Succession in 1704. The sovereignty of the territory was ceded by Spain to Britain in perpetuity and Article X of the Treaty of Utrecht in 1713. An option clause in the Treaty states that Spain can have first choice only when Britain wishes to relinquish sovereignty.

In 1830 Gibraltar was granted the status of a Crown Colony and civil rights bestowed on its inhabitants. A City Council was set up in 1921 to handle matters of a municipal nature. Local demands for further reform after World War Two led to the formation of a Legislative Council in the territory in 1950. The inhabitants of Gibraltar continued to push for further self-government and in 1964 a system of government and opposition took effect. This was followed, five years later, by a new Constitution in 1969, which set up the present House of Assembly. The elected Gibraltar Government was given control over all matters except defence, internal security and foreign affairs.

In the preamble to the Constitution, Britain guaranteed that the people of Gibraltar would not be passed to the sovereignty of another State against their freely and democratically expressed wishes. The 1969 Constitution remains in force to this day. Gibraltar joined the Europe community at the same time as Britain in 1973, and the Gibraltar Constitution had the practical effect of making the government and Parliament of Gibraltar responsible for the transposition of EU directives into Gibraltar law. This empowers the territory with a high degree of legislative independence in relation to Britain, and reflects its distinct membership of the Union to that of the United Kingdom through Article 227(4) of the EC Treaty.

Spain continues to claim the sovereignty of Gibraltar. From the point of view of the European citizen, the fact that both Spain and the United Kingdom are now members of the European Union should offer a prospect of European solutions. In was on the initiative of Spain that the notion of European Citizenship was introduced in the Treaty of Maastricht and Citizens of Gibraltar are Union citizens. The idea persists that Europe might develop along distinct regional lines. In such a development, for example, a place could be found for a unique territory like Gibraltar.

The prospect of a European solution has also served to highlight a number of paradoxes in the Gibraltar-Britain-Spain-Europe relationship which originates in the sovereignty dispute.

1.2 GIBRALTAR'S STATUE WITHIN THE EUROPEAN UNION

Gibraltar became part of the European Economic Community, as it then was, upon the accession of the United Kingdom on 1 January 1973. Gibraltar's status within the community is spelt out in Article 227 (4) of the EC Treaty and Article 28 of the 1972 Act of Accession.

Article 227 (4) EC Treaty provides:

"The provisions of this Treaty shall apply to the European territories for whose external relations a Member State is responsible."

This provision is clearly applicable to Gibraltar for whose external relations, as seen in Part 1.1 above, the United Kingdom is responsible. The clear meaning of Article 227 (4) EC Treaty is that the territory of Gibraltar is part of the European Union. There are no exceptions or limitations attached to this status under Article 227 (4) EC Treaty.

Gibraltar was, however, granted certain, limited exceptions from the full application of Community law. These limited exceptions are contained in Article 28 of the 1972 Act of Accession which essentially excludes Gibraltar from the application of EU rules on the Common Agricultural Policy (the "CAP") and on turnover taxes. Gibraltar is furthermore not considered to form part of the Community's common customs territory and that, consequently, EC rules on the free movement of goods (Articles 30-36 EC Treaty) do not apply.

In a different vein, it must also be stated that with the advent of direct elections to the European Parliament in 1976, the United Kingdom failed to enfranchise the people of Gibraltar. This is a very sensitive issue in Gibraltar. Indeed, the people of Gibraltar are the only citizens of the European Union who are denied the right to vote in the direct elections to the European Parliament.

With the exception of the unjustified exclusion from voting rights, the above constitute the negotiated association terms which received the approval of both the people of Gibraltar through their democratically elected representatives and the then Member States of the Community. Furthermore, these limited exceptions must be deemed to have been accepted by all subsequent Member States as part of the "acquis communautaire" upon their respective accessions in the Community.

However, since the accession of Spain to the Community in 1986, Gibraltar has been denied the right to fully enjoy the benefits of other Community policies which, until Spain's accession, had applied to Gibraltar. In particular, further to Spain's insistence, Gibraltar airport is excluded from the scope of application of the Community's programme for the de-regulation of air transport. The detrimental effect which is suffered by the Gibraltar economy as a result of this exclusion cannot be stressed too strongly. The airport today remains under-used with three flights a day to the UK and only a few to destinations outside the Union. This is underlined by the fact that cars and pedestrians actually cross the main runway of the airport to reach the Spanish border.

This matter is further compounded by the fact that Spain refuses to establish any direct air, land or maritime links with Gibraltar. This must surely be the only case where transport links between two adjoining territories of the European Union are actively prohibited.


It is also accompanied by the further concern that Spain does not allow normal international telephony communications to be made from its territory to Gibraltar but subjects such communications to the condition that Gibraltar's telephony numbering plan form part of that of Spain.


Spain's activities at the Gibraltar/Spain frontier must be understood as a further aspect of this Member State's consistent aim to isolate Gibraltar and to deprive the citizens of Gibraltar from the benefits of applicable Community rights. It is accepted, however, that the frontier problems must be understood in the light of Gibraltar's exclusion from the common customs territory.


As explained above, Gibraltar does not form part of either the Community's common customs and fiscal territories. Accordingly, the Spanish State is entitled to maintain border controls at the Gibraltar/Spain frontier in order to regulate the imports of goods from Gibraltar into Spain. These controls must, however, be limited to control of goods. As shall become abundantly clear in Parts II and III of this Report, this possibility for controls on goods which does exist is clearly misused by Spain in order to obstruct the application of EC rules on the free movement of persons which do apply to Gibraltar. Indeed, it shall be seen that the inordinate delays created by the Spanish authorities at the frontier are not even related to the pretext to control the import of goods but rather forms part of a systematic procedure to dissuade the free movement of persons at this frontier.

Furthermore, and before examining the actual nature of the obstacles to the free movement of persons raised by Spain at its frontier with Gibraltar, two related matters ought to be highlighted.

First, the Spanish veto over the External Frontiers Convention. Spain claims that the Convention cannot be adopted until Gibraltar is excluded or suspended from its scope of application. The EFC, however, concerns the free movement of persons and not goods.

Secondly, and most recently, Spain has refused to recognise Gibraltar- issued ID cards as valid travel documents. Gibraltar, unlike the United Kingdom, has operated an identity card system since 1943. This ID card was updated and brought into line with the requirements contained in a number of EC Directives. The up-dated version of the Gibraltar-issued ID card was notified to the EC Commission by the United Kingdom on 15 May 1995. The EC Commission has accepted the Gibraltar ID cards a valid travel and residence document for the purposes of the relevant EC Directives. Spain, however, does not consider them valid claiming, wrongly, that the Gibraltar authorities are not competent to issue such documents. More recently, Spain has adopted a similar attitude towards the issue of passports in Gibraltar with the same purpose of further frustrating the free movement of persons at the border and denying to Gibraltar the enjoyment of acquired Community rights.

It is ironic that the same Spanish government which is responsible for the controls at the border, is part of Schengen and the initiator in the Maastricht Treaty of European citizenship, a concept which may one day not only help to overcome sovereignty disputes but which forms the basis of the extended right to the free movement of persons within the European Union. The UK government protests about the border controls, but is not part of Schengen and indeed vetoed the Commission's proposals for their elimination throughout the Union as soon as they were published. When it comes to Gibraltar, the two governments appear to act almost in the opposite way to their policy on free movement of people within the Union as a whole. PART II: DESCRIPTION OF THE FRONTIER

It is the right time to consider pragmatic solutions to the border since the situation, although remaining unpredictable, is better than it is has-been. From 1969-1985 the land frontier was completely closed under the Franco regime. The closure has had its effects. The older generation lost contacts across the border, which the younger generation was denied totally. This has resulted in a situation where the population each side of the border communicates little, but without being as a result inward-looking or prejudiced. Apart from the economic effects, this cultural gulf is the most important result of the border closure and its delays when re-opened. This is the only European Union border which does not benefit, for example, from the Interreg programme.

There is a significant volume of traffic at the land border - some 14 million journeys each year in each direction. Delays of 3-4 hours were not uncommon until recently and still occur. Queues increased when Schengen came into operation, with the pretext that Gibraltar was an external border. In the run-up to Christmas 1996, there was an increase in cross-border shopping by Spanish families. In December 1995, shoppers abandoned their cars which in the week-end were stuck in a queue for 6 hours and walked over the border to protest with the authorities in La Linea, the town across the frontier.

Furthermore, political events such as the Anglo-Spanish talks over Gibraltar can lead to more severe border checks. If the situation has improved recently, it remains unpredictable. For this reason, a special telephone line has been opened so that before starting a journey, a driver knows whether or not to expect a delay. By the time he or she arrives at the border a queue can build up if the Spanish immigration authorities decide to lengthen the time spent on checks on each car. The situation tends to be worse at weekends but there is no absolute correlation between the traffic density and the length of time spent queuing: people are sometime caught by queues in the early hours of the morning, when they think that they have beaten the system.

Nor is there any clear rule about which direction is predictably better:

recently, queues have been rather worse coming to Gibraltar than leaving the territory. This has led to protests from the mayor of La Linea, who does not want the town congested with waiting vehicles. With single line traffic going to Gibraltar, coaches (see below) are a particular problem;

the Spanish authorities have, in the past, introduced a special control after vehicles had cleared immigration and customs, a "double filter" and which effectively created a major backlog;

the cost of the situation in human terms for different groups of European citizens (they make up 97% of people crossing the border) is described below. The burden on human beings is also a burden on the economy of the region;

for tourists to the Spanish region and Gibraltar, queuing in cars or in coaches often means waiting for 1 to 3 hours in temperatures up to 35?C;

with regard to the 30,000 Gibraltarians, some try to beat the system expensively by having a car each side of the border and crossing on foot. They have, as a result, recurring problems with the Spanish authorities over residence and registering their vehicles for tax purposes. For people with business interests each side of the border, this type of solution is no luxury;

for third country nationals (for example, an Indian who sells clothing and household linen to Spanish tourists) they are compelled to go to London in person to obtain a visa to cross a border which is five minutes walking distance. This is ridiculous. In the past Spain allowed such visas to be obtained by post or by courier;

time lost by individuals living each side of the border has a cost and is a source of great inefficiency in meeting appointments and organising daily life in the private and professional spheres. Many people believe that they function well below their real capacity;

for the suppliers of services each side of the border, the queues also depress demand. Driving lessons for example are cheaper in Gibraltar, but few Spaniards can afford the time to take advantage of the price differential. The loss to Spanish service providers is probably greater in terms of shopping, restaurants or entertainment, particularly for young people;

for chambers of commerce, trade unions ands politicians each side of the border, the actual costs of the queues is only part of the loss. The abnormal and unpredictable situation at the border is a major obstacle to attracting investment, particularly when it is coupled with very limited air connections. PART III: RECOMMENDATIONS TO IMPROVE THE SITUATION AT THE BORDER

The search for pragmatic improvements must take into account the legal status of Gibraltar which is an internal EU border for the movement of people but an external border for goods. Our recommendations are as follows. They centre around non-polemical issues and can be easily monitored.

1. MAKING BETTER USE OF THE EXISTING INFRASTRUCTURE

The scope for improvement without changing the infrastructure at the border appears evident. To improve the flow of traffic it is not necessary to undertake expensive changes. If other more detailed analyses were to suggest some extension of the border zone infrastructure, unused land between the airport and the town of "La Linea" is available. Our analysis goes in the opposite direction: better use of the existing infrastructure would itself lead to improvements.

The border is so designed that even whilst maintaining existing controls, traffic could in fact move much more quickly, simply by making more use of the space available.

Two examples illustrate this:

- there is already a more marked separation of controls on people and controls on commercial goods than is the case in other parts of the EU and which corresponds to the unique situation of Gibraltar within the Union. Commercial traffic is dealt with separately, and crosses the border through a different gate. The Spanish authorities have a right to control goods whereas the systematic controls over people, particularly if they have no goods to declare, are of doubtful legality. It is paradoxical to find that the crossing point for commercial vehicles functions well, whereas the crossing point for people does not. One could apply a different approach to controls over goods and controls over people, and have virtually separate crossing points for both. The infrastructure is in place to apply such a solution if there is a will to do so. Furthermore the separate crossing point closes for commercial traffic after 3 p.m. so it could be used after this time to speed up the flow of traffic, for example by providing a separate exit point from Gibraltar for coaches.

there are four channels for cars to leave Gibraltar - but only two are being used, with one of the gates ensuring passage into Spain permanently closed. For entry into Gibraltar, only one lane of traffic is allowed, but there is space for two. Indeed, the Spanish authorities did introduce two lanes for a time, but the Gibraltar authorities demanded other reciprocal improvements at the border and the arrangement broke down. Possibly, any improvement which makes better use of the existing infrastructure should be welcomed and accepted.

These recommendations could halve the border delays on their own. If some costs are involved because more immigration and customs officials are needed perhaps the EU could support training and employment programmes.

2. MORE SELECTIVE CONTROLS TARGETED TOWARDS SECTORS OF THE DIFFERENT POPULATION AND CIRCUMSTANCES

There are a number of ways in which queues could be reduced and controls made more effective and selective:

2.1 With regard to customs controls.

There should be effective "green" and "red" channels. On entry into Spain, no distinction is made between the two queues of cars which move below the signs. It ought to be possible for vehicles to move over the border in the green channel, subject to a selected number being taken aside for controls, and to heavy penalties for people avoiding the red channel.

2.2 With regard to immigration controls.

Three improvements appear desirable.

With only 3% of tourists crossing the border from outside the EU, there does not appear to be a need fro separate channels for EU and non-EU nationals. The latter might however be asked to fill in a form. This frontier is unlikely to be chosen by illegal immigrants. Nevertheless, illegal immigration is a sensitive issue in the region.

The Identity Card issued by the Government of Gibraltar with the approval of the UK and the EC Commission, should be recognised by Spain to facilitate regular passage of frontier workers. Most EU nationals are able to use passports or identity cards at borders. Regular travellers who live in border regions should be able to use the card they carry in any case with them. It should be pointed out that many EU nationals do not possess a passport and are able to travel with an identity card - provided of course that their Member State does issue such a card, - which the UK does not. The Commission should start infringement procedures since acceptance of identity cards is an important issue not just in the region, but for European citizens more generally. If the Commission fails to act, the United Kingdom should press for a solution.

Acquisition of visas for third country nationals legally resident in Gibraltar to be able to cross the border into Spain ought to be facilitated. Having to acquire a visa from London is a major obstacle to leaving the territory at all. It should be possible for the previous system to continue to apply (i.e. obtaining the visa from London by mail or by courier). Another solution might consist of longer expiry visas to be issued with multiple entry (i.e. a one year multiple entry visa). This problem ought to be discussed between the governments, bearing in mind that Spain is part of Schengen and the UK is not.

2.3 With regard to coaches.

On leaving Gibraltar, coach passengers disembark, go through passport and customs controls and rejoin their vehicle on the other side of the border. On entering Gibraltar, there is a serious problem since the Spanish authorities check the passports of each passenger on the coach, a process which takes around 10 minutes without distinction between EU and third country nationals (see above). Since some 50 coaches enter Gibraltar each day these checks carried out on a single lane of traffic inevitably create long queues. Coaches should be taken out of cars and checked separately. PART IV: CONCLUSIONS

There is a need to start a more dynamic process of a European solution towards Gibraltar. In reality, those in power in Spain find it politically easier to complain about the status quo than seek to bring about a more radical change. As a consequence, the situation is avoiding any serious international repercussions or disruption within the EU. The price paid is an unacceptable situation on the spot at the border. By any standards the controls on free movement of people are excessive by comparison with any other border within the Union, and for that matter any external border. To make matters worse, the situation is unpredictable and not clearly related to either the volume of traffic or controls which are justified because Gibraltar remains outside the Union.

In the absence of any real scope for bilateral solutions, we think that there are a number of European initiatives which could be taken in favour nor just of Gibraltar but the region as a whole:

- The Commission as guardian of the Treaty and the rights of the European citizens to free movement cannot remain on the sidelines. The situation is abnormal and cannot wait for a general solution to the problem of border controls on people within the EU, and perhaps particularly in this case because the general solution has been vetoed by one of the parties involved. To begin with , the Commission should start infringement procedures against Spain and any other Member State which fails to accept the identity card carried by Gibraltarians as a valid travel document. We do not consider that the right to travel within the Union should raise fundamental issues of nationality and sovereignty.

We hope that the suggestions made here for practical improvements to make better use of the border infrastructure to reduce queues and to separate the different categories - frontier workers, cross-border shoppers and tourists will be considered by people in the region and the governments concerned. We are also sending this report as a petition to the European Parliament, which we believe has a special responsibility towards citizens who can neither vote nor stand in European elections. There should be an independent study of the costs of the border queues to the Tourist Industry, services and other businesses, and the obstacles to attracting investment.

- Practical improvements at the land border should go along with full incorporation of Gibraltar in the European process:

- Commission proposals on eliminating internal EU border controls and the EFC may be blocked but Schengen is not. Gibraltar could seek therefore a special arrangement with Schengen. There will be objections that Schengen is only open to sovereign governments, but intergovernmental agreements can often be flexible.

- The region is eligible for EU funds (objective 1 in Spain and objective 2 for Gibraltar). Regions lagging behind or declining industrial regions are thus able to compete and adapt more effectively in an internal market characterised by the free movement of goods, persons, services and capital. Yet, the border delays are probably costing more than the money European tax payers are investing in the region. We believe it would be quite legitimate for the Commission to encourage an Interreg programme for Gibraltar and Spain linking funds to improving the border situation and creating a better balance between road, maritime and air transport.

- The GAER recommends that the losses which arise from the failure of a single market at the Gibraltar/Spain border ought to be assessed by the EC Commission. The GAER will provide all the on-the-spot assistance necessary to facilitate the carrying-out of this task.

The GAER furthermore recommends that an investigation should be carried out into the advantages and disadvantages of Gibraltar joining the Customs Union. Again, gains and losses should be assessed.

Both ECAS and the GAER hope that the contents of this Report have helped to highlight that the problems which exist at the border between the two Community territories of Gibraltar and Spain can be solved by having recourse to very pragmatic solutions which are wholly devoid of any political connotations. Both ECAS and the GAER are a-political associations which have been set up to protect the rights of citizens. It is on behalf of these citizens, whose same rights ought to be protected by the European institutions, that this Report is presented.