Exit deal caught between the Rock and a hard place
SPAIN’S effective veto over whether the Brexit deal will apply to Gibraltar could be illegal under EU law and faces being overturned by the European Court of Justice, The Daily Telegraph can reveal.
MEPS and legal experts have warned that the veto over Gibraltar’s future after Brexit would give Spain special status among EU nations, which are supposed to be equal.
The EU’S Brexit negotiating guidelines, drafted on behalf of the remaining 27 countries, state that the Brexit deal will not apply to Gibraltar without an “agreement between the kingdom of Spain and the UK”. It led to accusations that Spain was using Brexit to mount a “land grab” for the Rock.
Spain’s right to a veto over Gibraltar’s post-brexit future must be based on EU treaty law. However, it is uncertain if Article 50, which triggered Brexit, is legally watertight enough to give the guarantee.
Experts suggested that the European Court of Justice (ECJ) could rule that the veto is in breach of EU law and force it to be changed.
Isabella de Monte, a Socialist MEP from Italy, has demanded clarification over the issue in a European Parliamentary question. She asked if Article 50 was strong enough to support the special treatment of the Spanish and, if not, if there was still legal basis for the veto.
Bart Van Vooren, of global law firm Covington and Burling, said: “Could such a legal issue become an obstacle to the withdrawal agreement with the UK? That certainly cannot be excluded.”
“Nothing is clear about the legal issues arising from Article 50,” said Steve Peers, expert on EU law and professor of law at the University of Essex.
A legal challenge to the Spanish veto could hand British negotiators leverage in Brexit talks, and help push back against Spanish sovereignty claims over the Rock.
Such a challenge would risk throwing the already tight timetable for the Brexit negotiations into disarray. If there is no EU-UK agreement by March 2019, Britain will leave the EU in what has been called “the hardest of Brexits”.