Gibraltar and the european parliament elections before the european court of justice

• Author: Inmaculada González García
• Position: Associate Professor (Profesora Contratada Doctora) Of Public International Law And International Relations At The University Of Cadiz
• Pages: 195-202

Page 195

I Introduction

Gibraltar holds an unusual position within the European Community/European Union (EC/EU), being a non-autonomous territory that is dependent on a Member State, the United Kingdom. It is also well-known that a controversy has existed between Spain and the UK concerning Gibraltar as a territory that is under British sovereignty since the Treaty of Utrecht in 1713, and that nowadays it is the subject of negotiations between the two nations with respect to the United Nations decolonisation process.

The unusual idea of Gibraltar as a non-autonomous territory meant that the United Kingdom initially excluded Gibraltar from the European elections, according to the terms of Appendix II of the Act relating to the election of Members of the European Parliament by direct universal suffrage [1] (hereafter, the 1976 Act).

Two judgments by European courts have examined this situation from different perspectives, leading to regulatory reforms that have changed this political and legal scene, while creating a regulatory framework that is the subject of judicial controversy. In fact, the judicial decisions made by these European courts have allowed Gibraltar to take part in the European Parliament (EP) elections in 2009.Page 196

Thus, on the one hand we have the Matthews judgment of the European Court of Human Rights in Strasbourg [2]; and on the other hand, the Spain/United Kingdom judgment of the European Court of Justice (ECJ) in Luxembourg [3].

On the 4th June 2009 Gibraltar took part for the second time in the European Parliament elections, included in the region of South West England. This change follows the proceedings of the British legislator in compliance with the Matthews judgment of the European Court of Human Rights in 1999, as a result of the appeal made against the United Kingdom by Mrs Matthews, of British nationality residing in Gibraltar. In this judgment, the European Court of Human Rights declared that the United Kingdom had infringed article 3 of the first Protocol of the European Convention on Human Rights (ECHR), by not having organised European Parliament elections in Gibraltar [4]. Consequently, in order to guarantee compliance of the European Court of Human Rights' judgment in the Matthews case, and faced with Spain's refusal to withdraw annex II of the 1976 Act [5], the United Kingdom issued a Declaration in which it assured that it would make it possible for the Gibraltarian electorate to vote in the European Parliament elections as part of a constituency of the United Kingdom [6]. This Declaration, on the 18th February 2002, included the agreement reached between Spain and the United Kingdom, of which the Council and the Commission took note [7].

On the 8th May 2003, the United Kingdom adopted the European Parliament (Representation) Act 2003 (hereafter EPRA 2003), with the aim of guaranteeing the right of the Gibraltarians to participate in the European elections.

This study aims to analyse the judgment pronounced by the European Court of Justice in 2006 with respect to an appeal made by Spain against this British Act relating to the European Parliament elections in Gibraltar, determined by the Spanish-British agreements of the Declaration of 2002.

2. Appeal Made before the European Court of Justice by Spain against the United Kingdom Due to Failure to Comply with the Law

The Act relating to electoral representation for the European Parliament elections (EPRA 2003) formed a basis for the appeal made by Spain against the UK in March 2004, due to failure to comply with EU law [8], in accordance with article 227 of the Treaty of the European Community.

Focusing on the analysis of the judgment of the ECJ on the 12th September 2006, Spain considered that the EPRA 2003 violated the Treaty of the European Community and the 1976 Act, and that the United Kingdom had not respected the commitments it made in the Declaration of the 18th February 2002.

The declarations presented by Spain in the appeal against the United Kingdom focused on two specific aspects:

Firstly, on the way in which the United Kingdom has organised the European Parliament elections in Gibraltar [9], giving the right to vote to nationals from other countries that are not EU citizens. This is the case of Commonwealth citizens that fulfil certain requirements (known as Qualifying Commonwealth Citizens or QCC [10]) and that reside in Gibraltar. For Spain this is a violation of EU law, upholding that a clear relationship exists between EU citizenship and the right to active and passive suffrage in the European elections.

Secondly, on the incorporation of the territory of Gibraltar, and not the Gibraltarian electorate, in the constituency of South West England, violating,Page 197according to Spain, the 1976 Act, whose Annex I (in the current version) obliges the United Kingdom to only apply the corresponding regulations within its own territory, consequently excluding Gibraltar. Spain likewise considers this to be a clear breach of the commitments made by the United Kingdom in its Declaration in 2002.

3. EU Citizenship and the Right to Vote in European Parliament Elections

If we focus on the first plea in law, the following arguments are those upon which the Spanish...