The runway at Gibraltar's airport (Shutterstock)
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Clare Moody on airspace regulation: “I will ensure Gibraltar is included”

The Labour MEP for South West England and Gibraltar reports on the European Commission’s Single European Sky II+ agreement, where Spanish “intransigence” is holding up the process 

There are many things to celebrate about Gibraltar: the thriving economy, the drive to build new social housing and the promotion of environmental protection, to name just three. I could go on about all the positive things that are happening in Gibraltar. However, as Gibraltar’s MEP I feel that I have to use this article to address the latest problems that Gibraltar is unnecessarily facing as a result of the truculent behaviour of the Spanish government.

The ongoing border issues continue to frustrate the day-to-day lives not just of Gibraltarians, but also Spanish people who depend on Gibraltar for their livelihood. Given the economic strength of Gibraltar and the current weakness of the Spanish economy, it would make sense for the Spanish government to make it easier for its citizens to take good, well paid jobs in Gibraltar. However, its priority seems to be to use Gibraltar as a political football in internal Spanish politics to the detriment of its own citizens.

On top of continuing breaches of the fundamental European Union principle of freedom of movement for workers, there are the frequent invasions of sovereign territory. Last week saw the latest of a long list when a Spanish helicopter, without displaying lights, flew over houses in Gibraltar. It is wrong in principle and in law that British Gibraltar Territorial Waters and airspace are continually abused, but it is also very dangerous. On my visits to Gibraltar and talking to Gibraltarian representatives in Brussels, the recurrent concern is that one day one of these incursions will result in serious injury or even death. Again, the Spanish government must be held to account for its illegal and irresponsible behaviour.

Finally and extraordinarily, the Spanish government attempted to exclude Gibraltar and its airport from the Single European Sky 2+ (SES2+) agreement at a meeting of European transport ministers on 3 December. These rules will coordinate airspace regulation and planning across the EU, and in effect their implementation was delayed because of Spain's intransigence about Gibraltar's sovereignty. However, there shouldn't be a dispute on this issue in the first place. The 2006 Cordoba Agreement between the British, Gibraltarian and Spanish governments specifically included the airport, and subsequently Gibraltar has fulfilled all of the requirements of the agreement.

I wrote to the Commission about this issue last month but have not received a response in time to report it in this article, despite chasing. I have also spoken with colleagues about the European Parliament's Transport Committee, working to build an alliance in an effort to avoid SES2+ being agreed without any resolution in favour of Gibraltar. It is more than a little disappointing that the Italian presidency let the Spanish government derail the agreement, turning what should have been a good news story into an unnecessary controversy. I welcome the strong words from the UK government on this issue and sincerely hope that, on this occasion at least, it will result in a positive outcome for Gibraltar. In the meantime, I will continue to do all I can as an MEP is to ensure that Gibraltar is included in SES2+, and only then can the new regulation finally be agreed.

I am looking forward to writing an article all about the many positive things that are happening in Gibraltar, and I will do so one day soon. However, frustration with both the Spanish government's actions and the snail’s pace of the Commission in enforcing Gibraltar's rights as a part of the European Union mean that that day must be postponed once again.

Clare Moody is a Labour member of the European Parliament for the South West England and Gibraltar 

Photo: Getty
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Gibraltar - impact of Brexit

Last week our editor took a general overview of some of the scenarios for Gibraltar if Britain were to leave the Euro. This week, as the atmosphere in the British Conservative Party becomes ever more toxic, Michael Castiel, partner at Hassans lawyers on the Rock, goes into more detail (this piece written before the Iain Duncan Smith resignation and subsequent arguments happened).

However unlikely it may prove, the prospect of Britain's withdrawal from the EU sends shivers through Gibraltar's financial services, gaming and tourism industries, which are at the core of Gibraltar’s economy. For, if Britain leaves the EU, Gibraltar goes too, and, should Brexit occur, it is Gibraltar’s relationship with the UK that as in the past, largely will shape Gibraltar's future.

Gibraltar joined the European Union in 1973 as part of the UK. While rights to freedom of services across borders of EU member states apply between Gibraltar and the rest of the EU, because Gibraltar is not a separate member state (and is in fact part of the UK Member State) those rights do not apply between Gibraltar and the UK. Instead a bilateral agreement, formalised almost two decades ago, gives Gibraltar's financial service companies the equivalent EU passporting rights into the UK. Accordingly and pursuant to such agreement, where EU rights in banking, insurance and other financial services are concerned, the UK treats Gibraltar as if it is a separate member state.

This reliance on the special relationship with the UK is recognised by both the Government and the Opposition in Gibraltar, and when the territory (which in this instance as part of the UK electorate) goes to the polls on 23 June, the vote to remain in the EU is likely to be overwhelming. This may have symbolic significance but realistically seems unlikely to influence the outcome. In actual terms, although some non-EU jurisdictions use Gibraltar and its EU passporting rights as a stepping stone into Europe, almost 80% of Gibraltar’s business dealings are with the UK.

But whether or not Britain maintains the 'special relationship' with Gibraltar, if Brexit becomes a reality, other factors will come into play, with the ever-present Spanish Government’s historic sovereignty claim over Gibraltar topping the list.

Recently Spain's caretaker Foreign Minister Jose Maria Margallo went on record that if the UK voted to leave the EU he would immediately 'raise with the UK the question of Gibraltar.' If this was to come about it could take one or more of several different forms, ranging from a complete closure of the border between Spain and Gibraltar, demanding that Gibraltar passport-holders obtain costly visas to visit or transit Spain, imposing more stringent border controls, or a frontier toll on motorists driving into or out of Gibraltar. The latter idea was in fact floated by the Spanish Government three years ago, but dropped when the EU Commission indicated that any such toll would contravene EU law.

Here, again, imponderables come into play, for much will depend on which political parties will form the next Spanish government. A Spanish government headed by the right wing PP party is likely to take a less accommodating attitude towards Gibraltar (the Foreign Minister having recently indicated that in case of Brexit the Spanish Government may opportunistically push once again for a joint sovereignty deal with the UK over Gibraltar) whereas a left of centre coalition will likely adopt a more pragmatic and cooperative relationship with Gibraltar in the event of EU exit.

The most significant changes to Gibraltar's post-Brexit operation as an international finance centre are likely to be in the sphere of tax, and while Gibraltar has always met its obligations in relation to the relevant EU rules and Directives, it has also been slightly uncomfortable with aspects of the EU's moves towards harmonisation of corporate taxes across member states.

Although it was formed as a free market alliance, since its inception fiscal matters have been at the root of the EU, but Gibraltar's 'special relationship' with Britain has allowed considerable latitude in relation to what taxes it imposes or those it doesn't. However, as is the case with other member states, Gibraltar has increasingly found in recent years its fiscal sovereignty eroded and its latitude on tax matters severely curtailed.

As in Britain, Gibraltar has benefitted from several EU Directives introduced to harmonise and support the freedom of establishment, particularly the Parent-Subsidiary Directive which prohibits withholding taxes on cross-border intra-group interest dividend and royalty payments made within the EU.

As a stepping stone for foreign direct investment, should Brexit come about EU subsidiaries could no longer rely on these Directives to allow tax-free dividend or interest payments to their holding companies based in Gibraltar. In the case of the UK, bilateral double tax treaties will no doubt mitigate the impact of the non-application of any tax related Directives. Gibraltar, however, is not currently a party to any bilateral double tax treaties. Accordingly, Gibraltar would either have to seek from the UK the extension of all or some of the UK’s bilateral tax treaties to Gibraltar (subject of course to the agreement by the relevant counterparties) or it would need to negotiate its own network of bilateral double tax treaties with a whole series of EU and non EU Member States. To say the least, neither of these options would be straightforward to implement at short notice and would need the wholehearted support of the British Government

Whilst Gibraltar’s economy is likely to be adversely affected should Brexit occur, there may be some potential benefits. An EU exit would result in fewer regulations and possibly may provide Gibraltar with greater exposure to emerging economies.

From a tax perspective, an EU exit would probably enable Gibraltar to introduce tax rules and incentives that are contrary to EU tax laws and would provide the Gibraltar Government more freedom to adopt competitive tax regimes that may be considered contrary to EU state aid rules. How possible or effective any such strategy would be is doubtful given the OECD driven anti-tax avoidance climate affecting all reputable jurisdictions whether within or outside the EU.

In this as well as other possible change much will hinge on any post-Brexit relationship with the UK - an issue which the Gibraltar Government addressed recently in a paper sent to Westminster's Foreign Affairs Committee. It stressed not only that 'EU membership has been an important factor in the development of Gibraltar’s economy' but also the importance of 'clarity as to the rights the British Government will protect and defend for Gibraltar in the context of its own negotiations.'