Wednesday, July 06, 2005

Spain v UK on Gibraltar’s EU vote

Spanish EU Court action objecting to European Parliament (Representation) Act 2003

The action before the court yesterday was brought on 18 March 2004 under Article 227 EC.

Spain was represented by N. Díaz Abad, Abogado del Estado, UK was represented by R.Caudwell and by Lord Goldsmith QC, Attorney General, D.Anderson QC, and M. Chamberlain, barrister.

The UK position was supported by Commission of the European Communities, represented by C.Ladenburger.

Spain’s action seeks a declaration that, by enacting the European Parliament (Representation) Act 2003, the United Kingdom has failed to fulfil its obligations under various, as well as the 1976 Act concerning the election of the representatives of the European Parliament by direct universal suffrage.

Spain argues that its action covers only elections as they are organised in Gibraltar and not UK’s recognition of the right to vote for the European Parliament of Commonwealth Citizens resident in its territory.

The United Kingdom set out the historical reasons which explain why it decided to continue to accord the franchise to resident citizens of other Commonwealth countries.

Britain believes that to recognise, in the context of this action limited to Gibraltar, the principle that Commonwealth Citizens may not vote in elections to the European Parliament, would mean that the United Kingdom would have to deprive a large number of people, both in Gibraltar and in the United Kingdom, of their traditional right to vote.

Both the United Kingdom and the Commission consider that the United Kingdom was entitled to extend the right to vote and to stand as a candidate for the European Parliament to nationals of non-Member States. No general principle of Community law prohibits this.

The Commission submits that, although the concept of European citizenship is fundamental to the Union, the same applies to the Union’s commitment to respect the national identities of its Member States.

Spain claims that, by providing for the combination of Gibraltar, which is not part of the United Kingdom, with an existing electoral region in England or Wales, the United Kingdom was in breach of Annex II to the 1976 Act, which is a provision of primary Community law that excludes Gibraltar from European Parliamentary elections.

It argues that the United Kingdom should have limited itself to including the electors resident in Gibraltar in a UK electoral region in their capacity as persons who hold United Kingdom nationality under the terms of the 1982 Declaration.

Spain disputes the recognition given to the Clerk of the House of Assembly of Gibraltar and the fact that the local courts of Gibraltar have jurisdiction to hear election petitions.

Both UK and the Commission point out that the method used, referring to the territory of Gibraltar, is inherent in the United Kingdom electoral system and does not result in treating Gibraltar as if it were part of the United Kingdom.

The Commission submits that the discretion left to the Gibraltar legislature is narrow and sufficient control by the United Kingdom’s own authorities is safeguarded.

On Gibraltar’s status the court noted that:

- Gibraltar was ceded by the Kingdom of Spain to the United Kingdom by the Treaty of Utrecht of 13 July 1713, which put an end to the War of the Spanish Succession. It is one of the dominions of Her Majesty the Queen. It is not part of the United Kingdom.

- Executive authority is vested in a Governor, who is appointed by the Queen and, for certain domestic matters, in a Chief Minister and Ministers who are elected locally. They are responsible to the House of Assembly, elections for which are held every 5 years.

- The House of Assembly has the right to make laws in defined domestic matters. The Governor, however, has power to refuse to assent to legislation. The United Kingdom Parliament and the Queen-in-Council each retain power to legislate for Gibraltar.

- Gibraltar has its own courts. There is, however, the possibility of appealing from Gibraltar’s highest court to the Judicial Committee of the Privy Council.

In Community law, Gibraltar is a European territory for whose external relations a Member State is responsible within the meaning of Article 299(4) EC. The Act concerning the conditions of accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland and the adjustments to the Treaties provides that significant parts of the EC Treaty do not apply to Gibraltar.

Related Articles and Links:

European Parliament (Representation) Act 2003

Article 299(4) EC - Special member state territories and their relations with the EU

28 June 2005 - Opposition condemn Spanish action

24 May 2005 - Eurovote objections continue

23 May 2005 - Date set for Spanish challenge to Gibraltar EU Vote

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