Spain has announced that, the way it is currently drafted, the Withdrawal Agreement covering “Brexit,” the exit of the United Kingdom from the European Union, is unacceptable. Without getting dramatic, it can be said that the Spanish government has reason on its side on this issue. The principle established by the 27 for the entire negotiation with London – even before the talks began – established that “no agreement between the EU and the UK” could apply to Gibraltar “without an agreement between” London and Spain.
That is to say, European partners were giving Spain the highest tool, the right of veto, in all things related to future agreements with the UK with regard to their ultimate implementation in The Rock, as Gibraltar is commonly known. This is what the general guidelines for negotiators encapsulated in the March 2017 summit, immediately after Theresa May triggered the withdrawal process by invoking Article 50 of the Lisbon Treaty. The contents of this document, which is binding as it was approved by the European Council, have been repeatedly highlighted.
But the draft Withdrawal Agreement between May and the team led by EU Brexit negotiator Michel Barnier – who has done a good job overall – violates this mandate. Or else it leaves it in an ambiguous limbo that nobody can afford. The Commission failed to secure internal consensus on Thursday to support the draft agreement, a fact that underscores some of its limitations.
In Article 184, both parties pledge to negotiate the agreement on their future relationship “in full respect of their respective legal orders.” And it creates pressure with Article 3, which includes The Rock in any reference to the United Kingdom or its territory.
It is evident that this limbo is unacceptable, in that it skirts Spain’s specific influence on the application of the withdrawal agreement, contrary to what was agreed. And contrary to what was rightly done in the different yet relevant case of Ireland. That is why, one way or another, it needs to be reformulated, detailed or interpreted in light of the negotiation Guidelines.
The influence of those shortcomings has only a relative importance with regard to the transition period, which in principle will be two years. But it matters a lot more because of its impact on the agreement about the future relationship between the UK and the EU, as its duration is undetermined.
It is true that all the other matters have been positively negotiated from the viewpoint of the specific interests of Spain (which also shares the wider interests of the entire Union). And the fact that the issue of Gibraltar has been raised to a specific protocol awards symbolic relevance to this mountain of discord, not unlike the main problem, Ireland, which is also included in a separate protocol.
Another positive aspect is that the EU, London and Madrid have forged agreements to improve specific aspects of the lives of the communities in and around Gibraltar. Most notable is the fate of Spanish cross-border workers, environmental concerns and tax issues. This is worth a lot more than all the rhetoric about sovereignty, which the government has rightly avoided.
But the dilemma about the improvement of the agreement is not optional: it is mandatory, because the pacts (and the guidelines are just that) are there to be observed.
English version by Susana Urra.