The UK-EU Agreement in Respect of Gibraltar: CELS Seminar

Okay, welcome everyone. Um, if you have any questions, please put them into the Q&A. Um, yeah, and uh, I'm introducing the uh, chair of the event, Professor Katherine Bara. Captain, you have the floor. >> Thank you. Well, it's also lovely to see you all here. Thank you so much for agreeing to participate in this. Um it might seem um to the outsider somewhat uh unusual that we should be focusing on one treaty about one rather small rock. Um as my other half says to me, "What are you doing this afternoon?" I said, "Well, I'm running a seminar on on on Gibralta. Um and I'm doing um I'm supervising for that." And he said, "Well, so you've gone from a hard place to a rock." Um that's probably the only joke we're going to manage um out of more of uh out of out of talking about Gibraltar. Um the reason why Marcus and I thought this would be interesting is because it is a really quite remarkable treaty and it's a treaty that we know has been hugely controversial and indeed nearly led to um a mega falling out should we say with the then foreign secretary I know it's quite difficult to remember which one um and um also uh the British ambassador the negotiations and it will really quite tricky Um so when it came out it was really a quite remarkable thing to look at and of course um we see things everything through our own prism and our own prism is of course what's happening about the uh UK EU reset or not um what will go into the UK EU reset and particularly the SPS agreement. And so it's actually I think quite instructive to have a look at what's in this agreement. Um and also I think it's got quite a lot of inherent interest in and of itself not least because the relationship between the UK and Jibralta and the UK and Spain um uh has always been both clo close and fraught in each equal measure. So what we thought we would do is um just ask some of the best people around to talk about bits that they know about. Uh and uh what I thought we would do is just get on with starting um with looking at uh panel one and looking at the foundation of UK EU agreement. And we're very lucky to have um you here Jamie because you probably know more about it than most. Um so the the floor is yours. >> Thank you. Thanks Katherine. Thanks Marcus and and everyone who's had a hand of organizing this. Um, for the benefit of people who've just joined, I need to say that I'm speaking in an exclusively personal capacity. So, I've had a professional role in advising the government on aspects of the treaty. Um, I hope I can also add a personal perspective in the sense that, you know, Katherine was saying, we all look at these things through our own prisons. I I happen to be Jibraltarian as well as an adviser to the Jibralta government. Um and and so I think at from the outset uh I might say as well that we're going to have a sort of enjoyable afternoon getting into the weeds of this very long and complicated text but that fundamentally this is about making the lives of people better in Gibralar and the joining gap. Um so I hope I think it's just helpful to sort of remind ourselves of that when setting the table. Um, I've been asked to speak about the constitutional position in Jibralta. And I think the best way to do this is probably to say a few general things about the international status of Gibralta, the constitutional relationship with the UK and the former relationship that we had with the EU and then to connect some of these observations with the negotiation firstly, then the implementation and the possible termination of the treaty and Gibraltar's role in in all these three aspects. So on the constitutional position, Gibralta is one of 14 British overseas territories. It was seeded to Spain in a treaty in 1713 in perpetuity without any exception or impediment whatsoever, etc., etc. It was then designated as a crown colony. Um, and then it made incremental steps towards self-government from the mid- 20th century onwards. And so since 1946, Gro has been listed on the UN list of non-self-governing territories under the purview of the special committee on decolonization despite the fact that today is almost entirely self-governing under his current constitutional arrangements. So under the 2006 constitution which is the latest iteration of our constitution the governor who represents the British crown in Jibralta has constitutional responsibility for external affairs, defense and internal security. Everything else is the province of Gibralta ministers so locally elected politicians. Gibralta joined the EEC when the UK succeeded in 1973 as a territory with a unique status as a European territory for whose external relations a member state the UK was responsible and we had various carveouts as part of that uh participation within the EC. So we were outside of the customs union crucially the single market for goods as well outside of the common agricultural policy the fisheries policy and then later we were outside of the shenhen zone um and this of course meant that we needed to have what is now known in Brexit parliament as a hard border quote unquote hard border um sort of a discourse that was that emerged a lot in relation to the Northern Irish question in fact the hard border wasn't a problem in Gibralta in 1970 3 because we had a closed border because in 1969 the Spanish authorities decided to close the border in response to the previous iteration of constitution which provided an extra measure of self-government. Um and the hope on the Spanish side was that Jibralta would then fall like a ripe fruit. That was the expression that they they used. So we went through 16 years of that and in the middle of that was when we succeeded with with the UK to to the EEC. And so you can imagine it was a very difficult time socially, politically. Um we were cut off from from Europe and joining with the UK was an opportunity to reconnect with with Europe. And so it was emotionally important. And then when Spain wanted to join the EC, the price for joining was the UK said was you have to reopen the border, which they did. So then the suddenly the world opened up for us again. And so you can see why then gibralarians are generally quite well disposed to the EU. Um and why we voted in the Brexit referendum by 96% with I think an 84% turnout to to remain. Um so um we wanted more Europe not less Europe like like England want England and Wales I should say. >> Indeed. um and successive British governments to their credit have have helped Gibraltar to achieve this objective via now this new treaty. So I'll get on to the negotiation of the treaty. The the impetus for it came from Jibralta and Gibraltar's political leaders have played a really active role in not just the political aspects but also technical aspects of the of the text. I think it's really an unknown in modern day treaty making to have politicians being so kind of on top of the the text of something this long and that has taken so many years to to negotiate. The foreign office mantra throughout has been nothing about you without you. So really trying to infranchise Gibraltarians and of course there are difficult tradeoffs contained within this treaty not least the presence of Spanish officials exercising regulatory functions at the Gibralta airport and also anxieties within Gibralta about some of the longerterm effects of the treaty. So one often hears concerns about social and cultural osmosis within Gibralta. So the idea that somehow we'll just end up merging with Spain in a sense once the physical infrastructure of the border is taken down. Um but it's important to underscore that all of these uncomfortable aspects of the treaty are underpinned by gibralarian consent. So when it comes to the implementation the future implementation of this treaty um the UK has overall international responsibility for Jibralta is responsible for its external relations under the constitution but there's an important caveat to that within our 2006 constitution which says that without prejudice to this responsibility for external relations and for Jibralta's compliance with EU law matters which are under under this constitution are the responsibility of Jibralta The government ministers shall not cease to be so even though they arise in the context of the European Union. So this feature of our constitution has greatly enhanced our self-government under the EU. It sort of fell away after the end of the implementation period, fell into irrelevance, but now it's being resurrected because a lot of what's going to be dealt with in this treaty are questions of immigration, trade, environment, things that come within the competence of locally elected ministers in Jagula. albeit under the overarching responsibility of the of the UK. Um so the government the governor of Gibrala who represents the crown will also be responsible in certain areas for example in relation to policing but the the meat of it is going to be Gibralarian politicians, Gibralarian parliamentarians >> exercising regulatory functions in respect of the treaty. And finally, just a quick word on possible termination in the future. Um, the chief minister of Jibralta has said that Jibralta must be protected not only from the possibility of EU or Spanish overreach, but it also must be protected from a future UK government that might decide to terminate the treaty without Jibralta's consent. So Jibralta's position is that it needs to have a finger on the termination trigger of this treaty and the unanimous approval of the treaty text in the Gibralta parliament was made subject to the to a concorder between the UK and the Gibralta government which is going to be designed to to make sure that Gibraltara has guarantees certain safeguards in place that will allow it to maybe if not formally allowed to terminate the treaty or prevent termination at least give it a very sign significant voice in this process. Now we don't know exactly what this concordat which is a political instrument is going to say um Steven Douty who is the minister of state and foreign office responsible for Gibraltar has said that it is politically inconceivable the UK would ignore Gibraltar's wishes on the treaty. I think the adjective politically is important here because I think we we don't know what's what's happening with the Concord. We're told it's being delayed due to Iran and the crisis there etc. But it could be that what's being discussed at the moment is the extent to which the the guarantees in in this concordat are formal legal guarantees or political ones. I suspect it's going to be the latter type. So to conclude then um we you know that the title of the treaty is in respect of Gibralta which signals that the treaty is that Jibralta is an object of this treaty but the name of one of the parties also contains the phrase in respect of so the UK in respect of Gibralta and the phrase here in respect of I think what it signals is that this treaty has been concluded on behalf of Gibralta and with its active participation and consent. Senate. This is not old style kind of colonial treaty making and I think this reflects well on the modern non-colonial constitutional relationship that the Groboards in the UK currently enjoy. Although we could of course always have more self-government. So thank you very much. >> Thank you Jamie. Um and without further ado, we're going to um Professor Alejandro Delvare. Uh I will for this section, Alejandro, I will put you in the spotlight and I will mute us here in the room because we have a slide echo. Uh >> okay, I understand. Can you hear me well? >> Can we hear you perfectly well? >> Thank you. So, should I stop? >> Yeah. >> Thank you. Thank you. Thank you very much for the invitation and for giving the possibility of this sand Spanish approaches to this uh uh to this uh treaty. I will talk about some selected topics uh some questions that been uh under discussion at the local level in the uh campo develar area uh by the political parties in Spain and academic approaches. There are some questions and the in fact I will talk about the legal debate in Spain about the treaty but it could have a subtitle uh that could be four mysteries and one elephant. So I'll talk about the four mysteries first. Uh the first mystery let's go with the magic. The first mystery is the treaty itself. So it's been negotiating with with absolute secrecy at least for the Spanish Spain wasn't it's not a part in this treaty it's was integrated in the European Union delegation but anyway it was clear that any uh step or any decision big decision uh was necessary before uh to have an agreement between the United Kingdom and Spain. So, it's been uh for for the political parties and the for the public opinion, it's been developed these negotiations with a lot of secrecy and a very few moments of information. I would stress information because in Spain the autonomous communities seem to have a slight connection issue. >> Alejandra, can you hear us? >> Sure. Why you cut out for a second? uh we will uh I think hope that he can rejoin very quickly and when he does we will uh give him the floor again. Um >> should I >> Yes, if we if we move to >> Alejandra you were cutting out for a second. >> Excuse me. So it's quite surprising to keep a secret in Spain during four years. I mean for the politicians in Spain, they have kept a secret during four years which is quite surprising. And finally the the mystery is that we have squared the circle because finally we have uh an agreement without uh the the soy issues keeping them out and a complete agreement between Gibrata Spain the the United Kingdom and the European Union. So that's a real really a mystery if you have reached to such an agreement. Second mystery uh the democratic consultation of the treaty. This is a pending issue. uh we still don't know how to solve this problem of democratic control in Spain by the Spanish parliament the Cortez the Congresso uh because uh finally it is linked to the nature of the treaty is not a mixed agreement uh but a an European Union agreement. So the the reason uh is not very clear for many academics and for many politicians uh political parties have said that there are some uh contents in this treaty that must be uh approved by the Spanish parliament because these are shared powers. If we look at article three of the treaty of the functioning of the European Union, we'll find the the listing of shared competences and exclusive competences and some of them is quite there are some questions about the the exclusivity of the European Union powers as is the case of the area of freedom, security and justice for instance. for instance. So this can be easily challenged by the uh somehow by the European Court of Justice uh by a referral by a judge. It can be uh discussed. There is a a logic in all these uh agreements uh of Britain of Britain exiting the European Union. the withdrawal agreement, the commercial agreement were uh exclusive European Union agreements. But in this case, there are some doubts. Of course, everybody agrees that it was uh better to to make European Union, United Kingdom agreement not to uh to for preventing the the block the blockade or the voting against some of the 27 member states of the European Union. that the the the nature of the the legal nature of the treaty remains and then there are voting procedures how to solve this problem. How to solve this democratic consultation problem and the democratic acceptance by the Cortez by the Spanish paramey so important for Spain. Third mystery the implementation of the treaty. This is uh completely open. And this is a question that remain open. We are waiting for the practice. We are waiting for the future arrangements uh that are uh uh regulated in the treaty between Spain and the United Kingdom. Uh so the practice will be very important. the choice I I'm not in favor of that but the choice has been to make a very very very long treaty which is very risky very risky when putting it in practice and uh well uh the the institutions Spain is not directly represented in the institutions of the treaty uh the mixed institution the mixed bodies uh for the border control there are many issues notice solve it in principle regulated but we must wait for the practice. The share prosperity area the intervention of the structural funds uh is has been foreseen but not regulated in the treaty crossber workers social security environmental issues many many topics that need the practice uh to know uh the way they they they run. Uh the fourth mystery, will it be a longlasting treaty? Well, you have in the United Kingdom a political party, the reform party that opposes to this treaty. But in Spain, we have a far right political party box that opposes for uh on sovereignity grounds for surrender our sovereignity to the United Kingdom. And there is doubts about the opposition the conservative party the we don't know what is party partido popular going to vote if the political party partido popular wins the next elections and become government of Spain and we don't know what are going to vote what the the party is going to vote in the European parliament because it is spend ing this boat. It is essential for the entry into force of this treaty. There is a bad sign. There is a bad sign this week. Partido popular box has voted in a commission of the Cortez against the treaty this week. And finally, the elephant. The elephant in the room. Uh I would say a big elephant in a very little room, which is which are the military bases. The military bases. As you know, we have an agreement with the United States of America for the military bases of ROA and Moranda, but we don't have any agreement for the military bases uh in uh Gibralta, the Royal Air Force, the Royal Navy, and the intelligence uh bases. So 30 uh 30,000 libertarians they usually are loyal and very happy when there is a visit of the navy warships of the submarines but uh 300,000 Spaniards that live around they are not very happy with the visit this month this month we have have three visits three visits of nuclearpowered submarines one of them caring launchers missiles with nuclear warheads. So they came into the Gibralar Alira Spay to the Gibralar port probably with more than 100 nuclear warheads. We are not very happy. We don't have good experience. the tales the United Kingdom submarine was one year one year for repair purposes in Gibraltar in Gibraltar base with a leak in the circuit of the nuclear reactors. So we don't have good experience and we are not happy with that. And there is a problem. There is a problem because there are no agreement between Spain and the United Kingdom uh for civil emergency plans for evacuation plans for nuclear radiation emergency plans. There are no agreements on that and I think that is the big the big issue. So in some I am in favor of course of this treaty. I support Spain is very legally very important for public international law. Spain admits a neighbor. We have France as a neighbor. We have Portugal and now formally we have uh the United Kingdom and Gibrar. But there are many questions that are on the air to be developed. So I think it's a historical win-win. I will say is a historical win win because Spain, Red Kingdom, Gibraltar, all of them they win in my opinion. But there is a big winner, a fourth big winner which is the ministry of defense of the United Kingdom. Thank you. I am at your disposal for discussing these topics. >> Thank you so much, Alejandro. And um uh thank you for staying with us because we're going to have space for questions, but we go straight to professor's peers. >> Explain. >> Um >> yeah, Steve was due to go on a bit later when we were talking more about the substantive provisions, but he's otherwise um tied up. So that's why he's going at this stage in the conference. >> Yes. All right. Brilliant. All right. So sorry I could be with you only briefly but I'll go through the gist of um what the uh Gibraltara treaty says about movement of people and um happy to answer some questions uh right afterwards. So the basic element then is that this isn't first of all a full association with Shenhen. So it's not the same position as you know Switzerland, Norway and possibly Andor San Marino in future. Um but rather it's an extension of bits of it. Um plus some additions that don't normally apply even to EU member states as we'll see. But it's a a partial extension of Shenhen but without free movement of people. So it doesn't include the right of EU citizens to go and live in Gibraltar as such or uh the right of people with a Jibralta residence permit uh British or not uh to go live in the EU. So it's partial Shenhen but without free movement of people. And of course we're not used to seeing Shenhen without it accompanying uh free movement of people in the internal market sense. Next, this part is based on democracy and human rights, including the ECR and its domestic application. That of course raises issues about what might happen with a different government in the United Kingdom, which is not keen on those things. Uh, and who knows exactly what might happen then. That's obviously something sleeping for now. Um now uh another provision is that tells us that in this part of the treaty the references to EU law and it lists the articles where they appear include that legislation as amended. And what we know from the main part of the treaty, the basics of the treaty is that references to EU law trigger uh an obligation to apply EU court case law. they trigger an obligation of consistency uh with that legislation. Uh they don't specifically trigger direct effect and supremacy unlike the withdrawal agreement, but they do trigger possible role for the court of justice in dispute settlement. If the arbitrators have an EU law question as under the withdrawal agreement, they do have to refer it uh to the EU court. So um there is an EU law element. Not everything is based on EU law as we'll see. We'll I'll as I go through I'll point out that there are some direct references and some indirect references and uh it's not that clear uh in many cases exactly what's meant by applying EU law. So first of all there's an obligation to remove physical barriers the same basic rule the Shenhen legal rules system has but without any any cross reference to the Shenhen rules. is one example of uh you know incorporating Shenhen principles without incorporating a cross reference to the legislation and therefore it raises the question about how the case law applies. Uh next um the uh treaty goes on to say that the border crossing points are at the port and the airport. It creates a system unknown within Shenhen of dual border checks where the both the UK and then Spain do border checks as people come into the port or airport of Jiala. Another thing it does it says the UK should have the same entry conditions for Jibralta. Align that with EU law. They don't mention it but they mean article six of the shenan borders code uh the criteria for short-term entry. So it's a vague cross reference rather than an explicit one. It doesn't mention EU law. Uh so um in some cases the treaty uses some of the wording of EU law without mentioning EU law. So there's various approaches to alignment. This is one of the more moderate uh ones. Um then there was an explicit reference to exceptions to the obligation to use official border points. There you've got an explicit reference to the exceptions in the shenan borders code. You've got an explicit reference to special types of checks for special types of borders that in an annex to the code. Uh there's an uh there's an abolition of what you might call internal border controls in this context between Gibraltar and Shenhen. So very similar of course to the Shenhen system, the core of the Shenhen system. They can be reimposed in exceptional cases. this the grounds and the procedure look broadly similar to Shenhen but again there's no cross reference it's not identical uh that you know the procedure is less detailed than most recent version of uh the EU version of that um and also there's no UK access to EU databases so in terms of checking the Shenhen information system and so on it will be the Spanish who were doing that remember people are checked twice by the UK and Spain so the UK will check I suppose its own database ES the Spanish will check shenhen information system and other EU databases uh when they do their part of the controls. Now how does this sort of uh dual or hybrid nature of the border control work? Well, the UK makes a decision under international law, the Gibraltar version of international law. Then Spain applies EU law um uh not only access to databases but the criteria for entry. And here there's a lot of references to EU law, but in this context they're only references to Spanish obligations. Uh it's not the UK in this context that has obligations under EU law. So it's an important distinction on this point. There are other areas though where the UK does accept EU law obligations, but not on this. Now at various points in the agreement there's a free movement of people exception on the from the EU law point of view Spain must admit uh people with free movement rights or legally resident non-EU citizens. So uh this isn't despite its the nature of these checks happening in Gibralta this isn't um doesn't take priority over EU free movement law in a sense it's applying outside the borders of the European Union. You have to follow up database alerts either in in the EU system if you're Spain or the national system if you're the UK if someone's refused entry. The UK enforces it if it's a UK refusal, Spain if it's a Spanish refusal or jointly if both uh authorities want to refuse entry. Not quite sure how joint enforcement works, but um uh that's what the treaty provides for. Next to the UK has to apply EU law on carriers liability and advanced passenger information. And there you've got a cross reference to you applying revised EU law uh and uh necessarily case law uh and so on. The UK exempted special rules for military personnel has a whole series of special rules for them. It demanded you just heard about the importance of Jibralta to the UK from a defense point of view. Uh then you have a series of visa rules and immigration rules which are quite nuanced. Uh anyone with who is a resident in Jibralta has visa free entry into the Shenhen area for 90 out of 180 days and the other way round from Shenhen into Gibraltar for 90 out of 180 days. So that's similar to what happens between Shenhen states, right? any other residence permit in France, a non-U citizen uh can visit uh Germany so on for 90 out of 180 days. But as I say, it's not a free movement regime. It's not a right to stay longer than that in either direction. You do have an exemption from the entry exit system and the travel authorization system for persons resident in Gibraltar. The obvious question is how to define that. Well, there's quite a lot to define who that is. It's someone who has the legal right to reside there. So uh irrespective of nationality. So it's not just Brits. There will be some non-brits except of course EU citizens treated separately. They are still all subjects of free movement law even though they're in what is still non-EU territory. They still have EU free movement rights and Swiss you Swiss Norwegian and so on uh free movement rights retained in that context. So how do we define uh who's a Jibralta residence? Well, the the treaty says quite a lot about that. You have to have either an ID card or residence permit issued in respect of Gibraltar, but then it harmonizes UK law in a way that Shenhen does not do very much. Uh and even separate EU legislation doesn't do very much as much as this for member states. So there's a standstill. The UK can't change its law in respect of Gibralar after the treaty enters into force. It must consult well if it wants to change its law, it must consult and uh it can't change the law much. It cannot give an ID card um unless you're there more than 10 years. Uh and you cannot get a residence permit unless you have a genuine connection. There's a commission versus Malta point here. The treaty says giving money to the Jora government is not enough. Uh you have to have physical presence or other objective criteria to have a genuine connection in order to get um a ID card or um uh or residence permit. Uh the UK has to do risk assessments on individuals. Um and then Gibraltar has to align itself with at least part of EU law on visas. So which countries uh do or don't need a visa for their nationals. The Ji Brora is going to match that. Again, it's not as a very clear cross reference, but it's implied uh it's vague uh about the details and that raises perhaps a lot of questions in individual cases. But again, similar to the rest of the treaty applying aspects of Shenhen, any Shenhen visa is valid for Gibralta 2. Although interestingly the main rule about who hands out a shenan visa is disapplied for Gibraltar. The main rule in the EU visa code is the country which gives you the shenan visa is the country of main destination. Right? If you're visiting Barcelona for 10 days and Paris for one day or Spain decides on that. Um but uh in this case if someone's main destination is Jibralta it's not Jibralta who decides it's Spain who decides. Um so we just heard that some Spanish conservative parties are not happy with this treaty. Well you know there is quite a lot of uh power that uh Spain is going to be exercising in respect of Jibralta. Um frankly uh and this is one example of that. Not everything of course uh but this is quite a dramatic uh example of that. So Spain will be deciding on visa uh uh Shenhen well any any visa application where the main destination is Gibraltar. Um now uh the UK can uh block uh Spain from giving a shenhen visa to someone whose main destination is in Jibralta. So there's a kind of backup power for the UK if we think uh you know they're a bad person and Spain does not uh we can still stop them in principle visiting Jibralta by the way in practice and this is an issue with Shenhen as a whole what would in practice stop them uh once they're in Spain and there's no border controls between Spain and Gibralta what's what stops them getting there that's an obvious point equally the UK can give what EU law calls among member states and limited territorial visa. It can it can allow someone just to visit Gibralar. But uh like EU member states, there's a lot more constraints on the UK doing that than the EU visa code has. And a big constraint is the UK can only do that 15 times a year. Member states do that many more times than that uh issue limited territorial visas uh each year. And they don't have any uh constraint like that at all. Jibralta cannot issue long-stay visas. Uh EU member states are free to do so under the Shenhen rule. So another uh big difference significantly more constraints on Gibraltar in the context of um at least aspects of visa law than many member states any any of the shenan member states have. Next, in respect of residence permits, it is in this case, it's the UK that issues and renews the permit, but Spain gets to check them all. Uh, Spain can either block them being issued in the first place or ask the UK to um not renew them or withdraw them. There are individual rights to challenge Spain and seek remedies against Spain. Uh, in this case, uh, again, there are exemptions for EU citizens. Residents permits must expire within two years. I don't know if the idea was to check them all again uh at that point, but um uh presumably that's uh what would then happen. And finally, there's a section on asylum. Not a fullyfledged application of EU asylum law, but the UK is responsible for asylum applications made at the border of Jibralta or in the territory of Gibraltar. uh there's a vague cross reference to applying EU asylum law when considering those applications. So whatever the UK might do of course on its uh main territory of England and Wales and Northern Ireland so on um it uh has to apply uh equivalent rules to EU law presumably taking account of them changing uh to the asylum act in respect of uh both whether someone is a refugee and the procedures applicable and reception conditions like detention and access to benefits and so one and if someone fails their application fails and they're expelled the EU has to apply equivalent law to the returns directive which here is referred to explicitly that of course is about to be amended and presumably the the clause on referring to amended legislation then means the UK must apply law equivalent to the EU's returns regulation which will apply at a date to be uh negotiated soon and there's even a mini Dublin rule if an asylum seeker that the UK is responsible for goes to Shen and Shenhen can send them back. Uh the Shenhen states can send them back though that all the details of Dublin about how that works are left out. Uh there's just one uh paragraph uh saying there's an obligation. So uh who knows how what sort of difficulty that might mean in practice. So overall then what do we have here? We have a partial application of the Shenhen rules and you could say Dublin uh not in the borders code but aspects of visa law uh as well. Um as I said some of the rules apply explicitly some only to Spain not to the UK but some to the UK as well. In some cases you have similar wording in some cases you have vague reference to equivalence. So it really is something of a legal mishmash as to exactly how much alignment with EU law is going on here. In terms of the substance, it's really generous. That's uh there's no nothing else like it in EU law with any non-member states or or member states. Um notice the court of justice has a bigger role possibly here than for full Shenhen associate who applying much more EU law in the context of Shenhen uh where they just have political dispute settlement uh at least uh the EA and Switzerland. I don't know if andor and San Marino might be talked into something more but um otherwise they just have political dispute settlement. Gibralar is more potentially connected via arbitration to the court of justice and in some ways despite not every single shenan borders rule applying or visas rule applying um Jibralta has more obligations in respect of residence permits and and longstay visas than any member state of the European Union has uh because of the knock-on effect of people potentially moving from debt to Spain because that knock-on effect applies equally the Shenhen states themselves. Uh but nevertheless, there's less harmonization. And there's this really crucial point of course of Shenhen deciding on whether someone gets a visa uh even if their main destination is Gibraltar. That shortstay visa is decided on by the Spanish authorities. Otherwise, you have a system of dual control where both Spain and Britain have responsibilities sometimes one after the other or sometimes allocated between them. So quite a complex series of decisions uh based on uh on governance there. Hopefully that's useful and can feed into the rest of uh today's discussion. Um if I could take any questions now if that if that's possible. >> Uh yeah absolutely that's possible. Um there weren't any direct questions uh for you yet. There was uh one question online, Steve. Um could it be argued that you uh the jubilitarian population currently enjoys more effective political rights and democratic guarantees under the existing constitutional alignment than might be under Spanish sovereignty? And if so, should that consideration carry legal weight within uh the context of a dispute? I'm not sure it completely uh and directly refers to your presentation, but uh >> well, I mean, I I don't know. Uh would they have more or less rights under Spanish sovereignty? I mean um well we presume that if Spain were fully sovereign over Gibraltar you know would be treated fully as part of a member state not subject to a special regime like uh so Maya are for instance uh with some other special regimes um uh do they have well I mean there is still a distinction between being in Jiuar and being in Spain even in this area where of course there's a degree of obligations to harmonize with EU law and various degrees of explicitness and uh where Spain has a role in in control. Uh there is still some role for the UK authorities in the dual controls or issuing residence permits. Uh despite all the constraints and all the that the UK has in changing that law and the potential role of Spain in in blocking decisions or asking to remove residency permits and so on. Um there is still a role for the UK authority. So yeah, definitely despite what you could say is a a restriction of sovereignty in this area in relation to Gibraltar, uh there's still some left um that uh the UK has in relation to Jibralta. Quite constrained in many ways, but of course that's that's part of a an overall tradeoff which perhaps you can see in the rest of the uh the treaty with the you know the tax rules and so on uh as well. You know what are you getting in return for it? Well, you know, uh, absence of border controls, reopening, you know, extending the airport more, uh, and so on. >> Yes. Thank you so much, uh, Steve, that was a wonderful presentation and thank you for, uh, joining us. Uh, without uh, further ado, we go to uh, Professor Barard and her presentation. Thank you, Steve. And we know you have to submit. >> Thanks a bit, Steve. Thank you very much. So I want to talk about um dynamic alignment. And as I said, I um got rather interested in the question of dynamic alignment because as some of you might know, I spent the last 10 years talking Brexit. And of course Brexit is all about allegedly um deignment um and thus uh uh what um some performatively described as uh active divergence. And you might remember those happy days of the retaining EU law revocational reform bill when um Jacob Reese Moog said we should engage in a bonfire of um EU regulation from the statute book without knowing how much EU law was on the statute book and indeed had no idea what to replace it with anyway. Now we know that that um was stopped um when Richie Sulak became prime minister uh and the act uh took a very different line. So, and since um uh Rishi Sunnak's time in office, there has been really remarkably little active divergence. So, UK law has remained very much um in line with EU law um or at least EU law as it was up until the end of 2020. Um and there's still about 4,000 pieces of EU law on the UK statute book, some very important pieces. But we have engaged in quite a lot of passive divergence. And by passive divergence, I mean just not keeping up with EU law. And um under the Vander Lion First Commission, um it looks like there are about 400 odd um legislative acts that we have not um kept up to speed with. So um change of government again and we are now talking much more about not divergence but um alignment um again and in respect of alignment um I think we need to be quite careful about how we talk about these things. I think you can break down alignment into two groups unilateral alignment and bilateral alignment. And in respect of unilateral alignment again I think that can be subdivided into two where you've got statemandated alignment um which the UK has got powers give itself powers to do under the product regulation mrology act um where we committed ourselves to keeping up with EU law in certain areas. In fact we've only adopted one piece of legislation under that um under the powers in that um act. But secondly, voluntary alignment and this is happening all the time where uh um UK manufacturers have just carry on applying EU rules and manufacturing accord to EU rules because of course it helps. Now the problem about unilateral alignment which is what's going on at the moment is yes it helps in terms of saving of costs um but it doesn't help in giving get greater market access to the EU because the EU still assumes that our laws are out of alignment and therefore um still impose all the checks which is where bilateral alignment kicks in. great advantage about bilateral by that I mean where there is a treaty of which um it's hoped that the SPS agreement will be one is that there will be um a decision that the UK will keep up to speed with EU rules in the areas covered by the treaty. I call it bilateral because it's treaty based and it means um that the UK assuming it complies will have full access to the EU market but it's not bilateral in the other sense because essentially UK aligns with EU rules and category not vice versa and so I got quite interested in thinking about what does dynamic alignment mean and it means keeping up to with EU rules but in fact if you look at some of the agreements that the um EU has with certain countries um of which gi is the one obviously most um relevant to today um in fact there's actually quite a lot of difference between the different agreements and the different levels of intensity of dynamic alignment and I would like to suggest there is a spectrum of dynamic alignment with at the far end of the spectrum Gibralta which is really hardcore dynamic alignment then Northern Ireland protocol as it was now softened up quite a lot by the women's framework then Switzerland um where there are lessons learned but I probably won't have time to talk about Switzerland and then a little bit about EA and Hal can correct me when I get my EA law badly wrong but the Gibraltar agreement I think is really striking now Steve mentioned article 19 which is the main provision vision on dynamic alignment and um uh as you can see article 191 um has two limbs. First of all uh 191A that the UK has got to have got in place in its domestic law the same provisions as those contained in the annex. So these are union acts which are already in existence. Some of which will still be on the UK statute book from prerexitics. They've not been rolled back, but some won't be because the EU has been involved in legislating quite a lot since we left in 2020. So 191A is about existing acts. 191B is about new acts which fall into scope. Now there are all sorts of interesting provisions but I want to focus um particularly on 191B in respect of the new acts which is where we think about um dynamic alignment. So now in respect to the new acts the way it works is that if the EU adopts a new act so yes it's bilateral but essentially bilateral under the cloak of bilateralism we're told what to do um in respect of the new acts uh EU's got to notify um then the UK has 30 days to say whether we're going to accept those acts and implement them into UK law. Um, and then, um, the UK does have the opportunity to put a flag up to say we've got constitutional requirement concerns, which is fairly standard in all of these treaties that I'm going to mention. Um, and that may be issues that the Gibralarians have about with their own in terms of their own constitution or as a long shot, my guess is it may be issues that we might have in terms of our devolved administration. That'd be quite interesting to know what what thinking there was in Jibralta about all of that. Um, and then I think the most the reason why I describe the Gibralta agreement as brutal is because of 195 and 195 because it's so brutal. Um, he's got it own slide. 195 says that if the UK notifies that it's not going to accept the act or doesn't get around to making the notification or um doesn't inform the union um of how it's implementing that act then this agreement shall be considered terminated. I mean it is really really brutal a brutality that you absolutely do not see in any other agreement. Now okay maybe I'm overrating it because it does go on to say unless the corporation council um decides otherwise within um 90 days but the default is the whole thing is turned off. And that was I was struck particularly when you were saying that there there's this Concord app that's being negotiated that the UK doesn't do anything um uh to terminate the agreement. It could happen accidentally if the UK just failed to do the notification um requirements um and respond to the notification requirements which is quite possible because how many of us have forgotten to pay a credit card um bill at the end of a month. You know, you can so this is I it is absolutely stunning in its brutality and that's why um going back to my spectrum I put Gibraltza at the heart end actually if you look at the Northern Ireland protocol as was what i.e. before the Winds of Framework in 23. Um it was not far short of that um level of brutality. But um that has changed. But the approach in the Northern Ireland protocol is different. Under the Northern Ireland Protocol, there is a distinction between on the one hand existing legislation and on the other hand um legislation which has not been contemplated. So let me deal with existing legislation. So in respect of existing legislation, the um protocol lists basically about 300 pieces of EU legislation covering EU rules connected with the customs union and and beyond. Now, article 133 of the Northern Ireland Protocol, which is still good law, says if any of one of those 300 measures are amended or replaced, then the UK has just got to accept them. Again, pretty brutal. There's no um uh consent mechanism. Now in fact because this was seen to be so brutal it has been softened by the um Windsor framework and it's been softened in in two ways with the addition of the storm break although it must be said the threshold of the storm break is extremely high and then there's also some provisions um allowing um the UK to put up a red flag. Now, in fact, the storm break has only been triggered once um on a piece of um legislation about chemical substances. And even though it was triggered, the UK government um didn't accept the storm break said this the test wasn't accepted. So, you could say on the evidence of one piece of um legislation and one use of the storm break that actually the UK is quite careful about not forgetting to pay the credit card bill. the UK is quite careful about actually doing what's required and does not want to breach the agreement. So that's the first limb of the Northern Protocol. The second limb is about new EU legislation and that's new EU legislation which is deemed to fall within the scope of the protocol but was not in that annex of 300 pieces. And in respect of that, there was already a process um built into uh the um Northern Ireland protocol. It's in article 134. And in respect of new legislation, and I emphasize it's new legislation which is not building on the 300 pieces. It's a different type of newness compared to article 19 1B in the Gibralter agreement. in respect to new legislation, EU's got to inform the joint committee which operates between the EU and the UK. Um and then uh there is a process uh which is undergone domestically called the applicability motion to see if Northern Ireland is willing to accept this legislation. But the key point I want you to note here is that there is a process of um intermediation via a joint committee. I realize this is not stunning stuff, but actually when you start to think about it, it's really quite important for how this law over which of course we have had no say um gets onto the um uh books in in Northern Ireland. Um and uh what's also interesting in respect of the new in respect of new legislation, what happens if the UK um doesn't like it? There's a nice quite soft process. It's for the joint committee having a nice chat and um they will all try and work out what to do about it and if that doesn't work the EU can think about some remedial measures um uh in six months time. What I'm of course trying to get you to see is this is completely different to the tenner approach and rigor of the jabra agreement. Finally, I want to say something about the EA agreement, which I say with great caution because Halvard, who's on the line, um, uh, knows far more about all of this than me and has coached me in my limited understanding of it. But there's a couple of points I want to make about the EA agreement. Remember, it's 1991, so it's an early attempt at trying to deal with um, dynamic alignment. In fact, it's not even called dynamic alignment in the EA agreement. It's called um dynamic hom homogeneity. But of course, nobody knows what that means. So EU now talks about dynamic alignment, which most people also don't know what meant. What is also interesting is despite all the talk about dynamic alignment, it's not working brilliantly. There are 600 pieces of um EU legislation which have not been put onto the um EA statute book and some rather important pieces of legislation at that including legislation on GMOs and legislation on deposit um guaranteed schemes and so forth. The point I wanted to make about the EA agreement is the EA are very fond of talking about their lovely two-pillar structure. Now, of the two pillar structure, by far the most relevant, what we're talking about is the second line down because in the second line down, this is the EA joint committee. And in the EA joint committee, what happens briefly is that when the EU's adopt a new piece of legislation, it goes into the joint committee. when the E EU thinks that the piece of legislation is EA relevant and it is discussed in the joint committee and as you can see from article 1021 the joint committee decides whether um this um piece of legislation be should be incorporated into the EA agreement. Now this is where appearance and reality diverge because the text of the EA agreement is pretty brutal. um because uh it does expressly envisage in article 1024 that an agreement on an amendment um might not be reached and if that is the case there'll be automatic suspension of the part of the relevant annex of the agreement. So again it looks like there'll be consequences nowhere near as brutal as the consequences in the Gibralta text but nevertheless it's going to be consequences. In fact, Halvog tells me that provision in article 1025 has never ever been used and the agreement's been around since 91. Bottom line is, and I will stop, but the bottom line is um there's not one model of dynamic alignment. There are many models and I think that the Gibralta is really the most extreme in the sense of the consequence of what happens if there's non-compliance. Um but even that if you look at the what the experience of the EA agreement even though there appears to be some fairly robust tools if there hasn't been um uh uh implementation those tools not yet been triggered. Thank you very much. >> Thank you Katherine. And with that uh if uh we are allowed uh a couple of questions. Um maybe first of all any questions from the room. Um that gives us a few minutes >> of questions. >> We before we start the next panel can uh there's no break. Okay. But let's do the questions first, then a short break while we rearrange the extras. Um, are there any questions from the room? No, we had uh questions online. Um, sorry, I just apologies Peter, I spotlighted you. You're coming to you later. Um, I wanted to spotlight Alejandro. There are questions about uh self-determination online. And so it would perhaps be interesting to hear uh both um uh Jamie's view and an Ambrose's view on what you think does the uh EU UK Jubalto agreement do to the question of self-determination? Uh maybe if we start with um Jamie and then move to Alejandra. >> Yeah. >> So um very simply Marcus I just don't think the questions of self-determination are really engaged not in the sort of legal sense. I think there's a question around Jibralta's political identity in the long-term future and the relationship with Spain which is very fraught especially during the border closure years and this this could create a sort of rapromong and it could lead to perhaps also people in Gibralta are actually anxious about which is a kind of closer social or cultural alignment with Spain >> which I think and I think those fears are slightly overblown actually because what happened as a result of this border closure which is a massive on gold by Spain actually that so I was born during this period. Diabort was primarily a Spanish-sp speakaking place. A lot of older members of our families were sort of u Hispanic in their in their sort of hobbies and their kind of they they spoke generally Spanish and they were quite well disposed to Spain and then the the the border closure killed that right. It was uh it was it was extremely brutal and uh and so I think this sort of new generation of largely now English speaking Jabolitarians who come after my generation. I just don't see them I mean they'll be more into marriages perhaps there'll be more socializing and that that sort of thing. So I don't see fundamentally altering their identity. There's no sort of there no kind of sovereignty implications under this treaty. There's something that I I was one of the things I was asked to advise on and my advice is actually on the Gibraltar Parliament website if anyone wants to read but the too long don't read version is that this without a prejudice of sovereignty it really is and this was a a proper red line it wouldn't have this treaty wouldn't have been agreed there had been any kind of implications so that it's pretty much unchanged we'll see what the UN has so on in a couple of weeks we'll be going to the committee of 24 the special committee on decolonization and I suspect that the the conversation there will be more sort of less antagonistic than it is sometimes and more like look we've just we've agreed this fantastic deal this this will hopefully improve relationship the relationship between Jibralta and Spain and then we'll see whether we get kept on this list of non-self-governing territories which is a bit of a misnomer because we are actually self-governed >> okay interesting Alejandro if you >> Thank you well I'm happy to hear uh colleagues and friends talking about this. Well, the traditional position of Spain is that Gibralta has no right uh for selfdetermination, not to decide to become independent. Even the United Kingdom don't admit that. So, they have a special status. I think that this treaty well I'm talking like an academic but as a frontier person because I think that in Madrid and in London they don't have a the right knowledge of the situation there in the area in Jibrara and the surrounding area of the campa I think this treaty is the big opportunity to normalize the coexistence the traditional coexistence in this bay in this corner of the Iberian peninsula. The risk are the politicians. I mean the the the sovereignity issues. But I think that perhaps we can keep them these issues uh aside let them aside and with the active cooperation that comes with the treaty it will be will become again the good neighbors as we always have been the traditionally the the self-determination is a concept that were studied by gitri I'm not going to talk about that. But I would say that with this opportunity the the the the the colonial aspect which is there this is a situation is an internationalized territory supervised by the United Nations can become a a minor a minor problem with the the the years for Madrid. It will always a question of flag before people. Sometimes it depends of the conservatives or the socialist party who is in government. But in fact all these issues are not really interesting for Spain because Spain has mirror problems with and Malaysia. Of course they are different problems. I have written an article about the different nature of the Malia and Gibralta. Of course they are different but for Madrid they should be a problem this comparison of Geralta with Malayaia and should be a problem for this co-shared sovereignity or co-shared powers in respect of Catalonia and the Bas country. So I think that Madrid is not interested in deepen the sovereignity issues and is more interested in permitting the the the the day by day life of people uh to one side and another of the border the border of defense as you want to say. So I think that uh with a change of government it can change a little bit but it won't change the the the long in the long run the aim to foster the co cross frontier crossber cooperation. >> Thank you so much Alejandro. Um, we have uh lots and lots of questions online about the balancing, but I would say we move some of those into the next panel. Katherine, there was one question online for you whether you thought Brexit had sort of upset the um balance uh between territorial sovereignty and de democratic self-determination in Travolta. Um maybe that's more constitutional question rather than a dynamic question. I think I think what I would say is that Brexit or certainly the immediate aftermath of Brexit did a huge amount of damage to all of those territories apart from England because um there was uh rampid disregard for the interests of any of the um s I use that term parts of the United Kingdom. The very fact that Scotland and Wales repeatedly refused to grant consent for any of the Brexit legislation shows the cavalier disregard to what they felt. Northern Ireland of course became a major issue in the postrexit discussions. But I was very struck in all of the public engagement I did in the runup to the referendum. Not a single person asked about the effect that Brexit might have on. Nobody but nobody even agreed the word you would. And so um the fact is that um it needs so little thought about the consequences of all of that. Now I should say that um I think things have improved a great deal and I certainly think soon and more so under this government a real attempts have been made to reach out to um the different parts of the United Kingdom and I think relations are getting better. >> Thank you so much. Uh with that we are changing things in the room. So thank you everyone from the first panel and we move uh within the next five minutes to the next panel please. >> Um specific aspects of the agreement. How can you hear us? >> Can you see my my slides? >> Okay that's great. Thanks Halford. >> Thanks thanks for the invitation to participate. I I I certainly do feel as the odd one out here. I must say a Norwegian scholar with expertise on Efta EU relations on a video link from the northern part of Norway. Uh nevertheless, I I do hope the video link will work and and that some of my outside perspectives on this new Shiro agreement will be of some interest to you. Uh, and this is one of the reasons why why I find the agreement so interesting, why I've taken the time to to read it is because this is interesting far beyond Gibralta. It is, as as will has been already been mentioned, it's one of several recent agreements affiliating third countries of territories to the internal market, the Shenhen area for the customs union, Northern Ireland, Andova and San Marina. We have recent agreements and we have the new package of agreements between Switzerland and the EU and and the the list goes on. Uh the EA agreement is not in very good shape at the moment. Uh it will probably have to be renegotiated with implications for Iceland, Likenstein and Norway. The shiroer agreement could have broader implications for UK EU reset as as many in the rooms will know much more about than me. Monaco is is is al was supposed to be part of the Andor San Marino agreements but but fell fell out of those uh and and in the north we even discussed what about the parro islands they they they wanted to join the EA agreement some years ago and we even have Greenland. So, so I would say uh maybe Shiro is is just a rock but this agreement has interest far beyond far beyond um uh shiro. Then uh I just note in passing that now we have yet another special relation that is this uh proliferation of special relationships just go on and on. Uh I note with some interest that the agreement itself actually uh avoid this term it uses but mutual cooperative relationship and close and constructive relations come quite close. I think this this is mostly a note to myself, but but the after states are so proud of their special relationship with the EU and we we insist all the time that our special relationship is more special than your special relationship. >> So it will be interesting to see how how this develops. Then one further um reflection from the EA experience formal sovereignty as a red line and it's even in par it's even in in in in article two of the agreement um very familiar to anyone working on EU after relations for many years uh both as regards the EA after states Norway, Iceland, Venstein but also as regard Switzerland. Uh from a legal perspective, it seems to me clear enough that the agreement, the new Shroter agreement, uh does not entail any transfer of sovereignty from the UK to the EU. Um and I believe there has been a number of independent legal opinions reaching the same same conclusion. So, so I think that red line is probably uh not crossed. My point is simply that there is no d there is no denial that this has costs uh as to dynamic alignment I professor Barard used the word brutal at least it's it's very robust uh the UK can always say no but the cost is high termination of the entire agreement um but that has already been covered I would just mention in passing two other examples. There are many many examples throughout the agreement of of the implications of of this red line. U and I I just picked up two uh that I find find quite interesting. Firstly, when it comes to the GDPR, data protection in in in in uh in Gibralar, uh G GDPR will be the regulation will be part of the part of the agreement, but Gibralar is not able to take part in this one-stop shop mechanism of the GDPR. So, where you have a leading lead uh national supervisor authority very often in Ireland for reasons we all know, but it could also be in other member states. uh and uh whose decisions will be binding on other uh national um um uh authorities for reasons of sovereignty. I guess that has been carved out of the new new agreement. Um and that will lead to problems I guess that are very familiar to us in in in the FA in the FA after states. There is a very pragmatic attempt to solve this and I smiled when I saw it. It's in article 14 um paragraph 5 because what do you do when you cannot allow yourself to be bound by decisions taken from EU uh in EU member states? Well, you you come up with a regulation uh stating that the UK data protection supervisory authority um um shall take outmost account of decisions taken by competent supervisory authority uh in the EU member states and decisions taken by the board uh pursuant to article 65. Maybe that will be enough. I mean if the if if the UK uh authority takes the right decision there won't be a problem but if they exercise their independent independence there will be problems. This is very well known from from from EU FA uh relations. My second point and this this may seem strange to you think it's probably think it's obvious. I can't find anything in the agreement that will give Gibralta courts access to the European Court of Justice and I guess for reasons of sovereignty. Uh still the agreement will probably lead to Gibralta courts having to rule on complicated matters of EU law. uh a matter before the Shirota courts could be just as complicated as any matter of EU law coming before any court of the member states and that judge will have no access to the court of justice in Luxembourg. He or she will have to do as best he or she can on his uh or her own. Um and that is that that's the price to pay for sovereignty. But if as as a private individual, I guess you would like your court, your judge to be able to ask the court of justice in Luxembourg for the proper answer as to how that EU law is to be interpreted. Now uh later today there will be a session on presentation of the dispute resolution mechanism and of course we know there you will be able to reach the court of justice but that's different that's not the same as as the the court of first instance in Gibralta being able to to to to have a judicial dialogue directly with with the court of justice that's the price you pay for for formal sovereignty anyway um I was supposed to talk a bit about the institution ions. I will do that uh briefly. Um at at least on surface, it's pretty straightforward. Uh it's not so it's certainly less Byzantine than the EA setup that Professor Barard uh presented. There will be a cooperation council and under the cooperation council there will be specialized committees. The agreement foresees three of those, but the cooperation council can set up further ones if if it so wishes. All decisions will be taken by consensus and the council uh will have broad powers to supervise and facilitate the implementation application of the agreement. Uh I think one thing that has really struck me and I I think it's it's it's well done but I haven't thought about it before is that there is no rule for the cooperation council as I understand the agreement uh to enact every new EU legal act covered by dynamic alignment that will go directly from the EU to the UK authorities. And this is illustrated by the fact that uh in the agreement it says that the cooperation council will only meet once a year unless there is some sort of emergency. So it's clearly not the cooperation council will not have to adopt each and every EU legal act. Uh that's different under the EA agreement and that's part of the reason for the backlog. All of these legal acts have to be processed through the joint committee. Uh and this is different and it seems to me that this is different in in this new new setup. So by the UK accepting those new legal acts article 19 section uh three those acts will be supplementing agreements as I understand the agreement and they will be part part of the agreement and I think that is there's a much more efficient way to do it than the EA and and the Swiss um uh agreement. Um then uh on institutions I covered the the two the council and the committee and there's there's not much else as far as I understand the agreement. There is no independent surveillance authority on on um on the Shibrto side. Uh there is no new role for the UK uh monitoring authority as far as I understand it. And there are of course um there will have to be independent authorities for data protection and state aid but those will be the existing gibralar um authorities as I understand it. They will they will have to live up to EU law standards I guess but but that shouldn't really be a problem. There will be no new court. Uh again why should there be a court? Uh there will be an ad hoc arbitration tribunal with an obligation to refer questions to the ECJ. We will probably come back to that. Uh and then in brackets I just added there's no role for the after court and I guess many in the room will say well of course there of course not why why why should that be but I'm just mentioning this because there's been some people in the after pillar arguing for this sort of docking to the existing institutions hoping for the after court and the FDA institutions to be given a role uh also as regards other countries um that was has been refused by the Swiss it was refused by by by the UK and I guess it was not even discussed this time around but it's just it's different from the EA uh setup and as far as I understand it there is no parliamentary partnership assembly either uh we have that in EA agreement there is that in the EU Swiss agreement and also in the EU UK agreement but I can't find anything in in the new ship uh agreement so this is just very briefly and then the second some very short remarks on the Second topic I was asked to to address specifically then the customs union. Uh this is also quite straight uh forward. The agreement establishes uh a customs union between the EU and the UK in respect of Shibralta. Uh from a legal perspective, this is a new independent customs union under GAT and uh VTO uh law, but for all practical purposes, it will integrate Gibralar into the existing EU customs union. That's that's the whole purpose. Of course, this is similar to the new EA agreements with Enara and San Marino. It's different from the EA agreement and and the new uh Swiss uh agreements. uh it will avoid the problems related to EU safeguards under VTO law that now affects the after states. Um um but I will also have to say this is just a very brief introduction. The rules on the customs union they are complex and and detailed. Um this will only work if all of the EU rules on uh on goods from third countries uh apply. So uh this is dealt with in article 247 and in annex 20. Uh of course you will have to take over the customs code, tariff concessions, all union acts governing governing import and export prohibitions and so on. Product rules, standards, sebum is regulated, internal taxation, VAT is regulated and and and so on. There is an interesting point that someone might want to pick up on in annex 20 that that as far as I understand coming back to dynamic alignment. Professor Barard seems to me that annex 20 will be automatically updated. The provisions referred to in this paragraph that is in in annex 20 shall be those applicable at the time in in um the union. Um now importantly uh uh this will only enter into force when the cooperation council has made a decision uh specifying the date from which uh all the the the rules in annex 20 apply and that declaring that border control post and customs have been established. Until then, very complex rules found in articles 247 and 248 on on indirect taxation. I will not go into those uh today. Uh but it's also important to know that there is a specific safeguard procedure related to indirect taxation that is quite interesting and and also one may perhaps use the term uh well not brutal at least robust from the Spanish and EU perspective. This was very brief uh but I hope I covered at least some of the things I was asked to cover. Thank you. >> Absolutely. Thank you so much. >> Thanks very much, Hal. That was fantastic and really very helpful. Um, we go from the sublime to the more sublime. I'm now going to talk about um, human rights. No, >> I think the phrase is from the sublime to the ridiculous. U, but hopefully it's not too far in that direction. Uh, thank you very much. Also, thank you for the invitation and all the contributions um, so far. And um uh Lloyd Sunsh once uh said that a human rights claim is a claim against one's own community. And normally the difficulty is identifying well what is that shared community. And what's interesting I find in this agreement is that um this is sort of exactly the issue that it hones in on because um in a sense you can have sort of a shared community or you can be a member of one community that that overlaps and this becomes particularly acute when it comes to remedies uh in terms of potential human rights uh breaches. Um and of course the question of what should attain the status of a human right is equally relevant but that as we heard also in terms of no impact on sovereignty I think isn't moved um that much. Um we see a whole number of references to human rights in one way or another. I counted seven and a half. I won't go into the half for now but of course it's the sort of usual suspects. Uh but a meta theme is that um it seems like enforcement to the extent that there is enforcement based on human rights principles is shifted much more to the parties. I'm going to come on to how I think you see that rather than providing in specific guidance for the right holders. Now I want to uh just share a few reflections on some very interesting drafting uh in in my view and it begins quite familiar and then it becomes a bit more unusual. So with your permission I'll just I'll just take you through this and I have been given the 5 to seven minute brief and the German and me will try to stick to that but maybe the Persian will not manage so we'll have to see. So it starts by anodine in article 8 and democracy, rule of law, human rights, all those wonderful things and the parties shall continue to uphold those shared values and the principles of democracy, rule of law, human rights which underpin their domestic and international policies. In that regard, the parties reaffirm their respect for the declaration of human rights and the international human rights treaties to which they are parties. Note the European convention on human rights is not mentioned in article 8. I'll come back to where it is mentioned whether that's significant. And article 82, the party shall promote such shared values and principles in international forums. The party shall cooperate in promoting those values and principles including with or in third countries. So far so good. So that as indicated is not particularly remarkable. But what is remarkable or as it seems now brutal uh is in fact when we go to article 16 which lists out the essential elements and what's quite remarkable is that in 161 we read that paragraph one of article 8 which is what I just read out so democracy rule of law human rights and a number of other paragraphs constitute essential elements of the corporation established by this agreement and any supplementing agreement. Now, why is that remarkable? Because under 162, it says if either party considers that there's been a serious and substantial failure by the other party to fulfill any of the obligations that are described as essential, so you might say human rights, rule of law and so on, it may decide to terminate or suspend the operation of this agreement. And that is uh to my knowledge I think novel to sort of have that kind of option. Now of course it then goes through this cooperation council. We're going to try to resolve it. But you could envisage the situation when one of the parties says we are of the view that you have not respected article 81 and therefore we are going to initiate uh this this procedure. Now, interestingly, we have guidance as to what a serious and substantial failure might be. And of course, the EU lawyers will instantly be thinking about serious and persistent from article 7 TEU, which has given rise to all sorts of problems. And I'd be curious to know if if that was actually part of the sort of thinking at the time it was drafted, but we can come on to that. And under 165 we read that a serious and substantial failure to fulfill obligations described as essential elements include its gravity and nature. The gravity and nature would have to be of an exceptional sort that threatens peace and security or that has international repercussions. And that it seems to me moves us slightly further away from you might say sort of the everyday human rights protections unless perhaps it is sort of a significant infringement and then has political international um dimensions. So I found sort of the the structuring of human rights as an essential element but that that essential element is then policed in a sense by the respective um parties. Quite fascinating. Now, one further thought is the status of the ECR. And as I just read out article 8, I noted that there was no reference to the European Convention. But fear not, we have a reference in article 25. And again, I I I might just read this out. Um the the beginning of article 25 very similar to article 8 protection of human rights and fundamental freedoms and it states that the corporation provided for in this part is based on the parties and member states long-standing respect for democracy the rule of law and the protection of fundamental rights and then it lists the instruments that article 8 has as well but then in contrast to article 8 it also includes here and in the European convention on human rights and on the importance of giving effect to the rights and freedoms in that convention domestically. And the reason I highlight this is because it seems to me that this was drafted so that if the UK were to leave the European Convention and as we know from time to time it flirts with that proposition. Um that may or may not give rise to a breach of article 8. Probably not. Um and article 25 being general principles and um objectives um is not one that is subject to that procedure as outlined um in article 16. So again I found that quite interesting but I think there would at the very least be an argument to be made that by leaving the UK might not be able to fulfill um article um 8. But of course had that expressly referred to the convention uh I think that would have been much stronger argument. So I think that's 6 and a half minutes. So I'll hand over and thank you very much. Thank you. That's that's really very interesting and very helpful. My suspicion is if we leave the ECR that you've agreement will at least deep respect. I think the TCA may well be um the thing that's gone first and foremost and the Good Friday agreement shortly after serious issues. Um so could we now turn to Fernando and you're going to tell us about dispute settlement here? >> I shall try. So we I'll be speaking about part six of the agreement for whoever is has the agreement open and uh it is a very very interesting uh piece of of of treaty making actually because I don't know for anybody like myself who's interested in the law of international organizations to see such a robust dispute settlement involving any international organization that is also public is quite exciting and the EU always delivers in this this respect. So we really like to see this practice coming from the EU. Now something that is interesting about the uh agreement is that part six is really closely modeled upon uh the TCA the trade and cooperation agreement. So the drafting has been as close as possible uh to the drafting of that agreement and of course the we know that the TCA has been influenced by the withdrawal agreement. So there is here a bit of a chain of treaties where those dispute settlement provisions have been honed and now there is a bit of a blueprint maybe for the EU to deal with any states that happen to leave but keep some sort of trade and cooperation agreement with it. Now I thought I would focus on three general points about the agreement which are points of overlap with the TCA and then emphasize just a couple of points of difference. The first general point of overlap between the TCA and the Gibralar agreement is that uh the dispute settlement provisions will apply to most provisions of the treaty but with several notable exceptions. So there are a few bits from the treaty that are carved out from the dispute settlement um system and this is all provided for in article 301 and it will include of course article 2 the red line here of of of sovereignty but also it will um carve out provisions from title two of part one the basis for cooperation including the provisions that the bill was mentioning Number four. Now there is a a possibility for uh disputes falling under the accepted provisions to be referred to the cooperation uh council but that's it. So it would be political dispute settlement. It wouldn't be legal dispute settlement. Now the second general point of overlap that I thought I would highlight is that uh dispute settlements will be broadly divided into three steps. First of all consultations some old-fashioned political um dispute settlements but here done under the opices in the framework of the cooperation council. Then secondly we have the prize arbitration resulting of course in the um issuing of a binding ruling by the arbitral tribunal constituted to hear the dispute. And then thirdly, there will be a stage of compliance assuming here that there is an arbitrary tribunal ruling to be complied with. And this is a very detailed uh set of provisions where it is envisaged that the respondent state or interest organization as the case may be either the UK or the EU can take temporary measures of compliance including temporary compensation if they cannot just comply with the ruling in a very full complete way. But also there is possibility of the claimment party either again the EU or the uh UK to suspend obligations from the treaty. What's interesting about the compliance stage is that the original tribunal that gave the ruling is involved in that throughout it can be basically called upon to help the side settle throughout. So it's a very very very well structured dispute settling uh system. And then the third general point of overlap that I just wanted to highlight is that the agreement is really really detailed. It is very step by step. It does give off a bit of a defensive vibe which I think is appropriate to this postrexit type of agreement. So there is a lot of trying to anticipate every little move that one of the parties might want to make and try to prevent that from creating problems. And it is very specific also as regards time frames. Um but the time frames here will be shorter noticeably uh most of the time than the ones that you see in the TCA. It also includes a couple of annexes. NX29 covers rules of procedure. Again, very detailed stuff. And NX30 comprises a code of conduct for arbitrators. So, it really looks as though no stone was left unturned when it comes to part six of the agreement. Now, a couple of points of difference then when we compare the Gibralar agreement with the TCA. The first one is in article 312 where we see the provisal to refer to the CJ EU issues of interpretation uh of EU law that was of course uh copied and pasted from the withdrawal agreement itself. So the drafting is basically identical but it is omitted in the uh TCA. The TCA of course does not include does not involve the court of justice in dispute settlement. So in the case here given the nature of the gibral agreement whenever there is an issue of EU law proceedings of the arbit request will be made for a ruling from the court of justice and that will be binding on the arbitual tribunal. So EU law of course has to make a comeback in this settlement as well. And then the second point of difference that I thought I would highlight is to be found in article 301 paragraph six and it takes us back to article two the sovereignty question the big red line. So of course disputes uh revolving around article 2 which is a provision not to agree on anything and to reserve everything disputes under article 2 are excluded >> from uh dispute settlement under 301 paragraph 2. But what paragraph six does is to make a point of excluding the jurisdiction of the arbit tribunal over any incidental questions that might touch upon the issue of sovereignty. So it might be the case that clever lawyers could try to squeeze the question within a case by saying well you know like to know precisely how those rules apply we need to know who has sovereignty over Gibralar who the parties are to this agreement ultimately how how how it works and paragraph six just says no way if there is any attempt to do that if there is any attempt to argue view about sovereignty as an incidental question. The tribunal shall declare automatically that it lacks jurisdiction and will not even come close to that and Jamie perhaps can comment on that or not. I suspect that this is a direct lesson learned on the part of the UK in particular from the uh chos marine protected area arbitration that the UK had with Mauritius uh under the opices of the PCA which was a case brought under the UN convention on the law of the sea but in which Mauritius tried to bring as an incident incidental question the issue of who has sovereignty of the over the choser group. Mauritius was basically saying listen the UK cannot be considered a coastal state for the purposes of applying uncle. So we cannot establish this marine protected area. But the tribunal declined to uh exercise jurisdiction over the point except that a couple of arbitrators in the tribunal gave a dissenting opinion dealing with the question in a very substantive way which probably will not have been something the UK uh has particularly cared for. So here the lesson learned is very clear. we have this very express way of avoiding the situation and I thought that was an interesting point of difference just to highlight. >> Lovely. Thank you very much indeed. Um so we've got a few minutes for questions. First of all questions from the room and then we'll see what's online. Good. >> I'm I'm not a EU lawyer, not an international lawyer, but is is there other provisions in general that allow arbitral tribunals to request preliminary rulings to the European Court of Justice? Because I thought the European Court of Justice in general didn't allow preliminary rulings from arbit. >> So the the proper EU lawyers in the room will know more about that. But uh my understanding is that this would not be perhaps classed as a preliminary ruling in the sense of the EU treaties. But what is it called it is uh a part ruling? Yes, it is something a little bit more informal. So I I don't know whether there would be any objections on the part of the court of justice to let this help under the treaty which is part of EU law for sure but I would sincerely suspect that no the JU would be very happy to just play a role in this collection in the interest of >> it's quite is common now it's in the withdrawal agreement um it's also um in various other agreements are coming down the track um it's likely to be the mechanism that will be in the SPS agreement as well um and uh maybe in the NG um agreements because the point is uh actually it goes back to I think the Ukraine agreement wasn't it >> then there will be more pressure I guess but for accepting more questions on or issues from coming from arbitrers in general I guess that will be it it's becoming more. >> They've not been pouring in on the withdrawal agreement. Um, and I mean from an EU perspective, this is unsurprising because the EU, the court justice always said it's the only body that can have the final say on the interpretation of EU law. So there has to be >> Yeah. But it has traditionally rejected uh I know it's a bit different but it has traditionally rejected the preliminary rulings which is a bit different as you as you said but when there will be pressure so that the monopolize will more and more concentrate to the European Court of Justice I guess. >> Yeah. I mean the the bit that's forever misrepresented whenever people talk about the ref the reference proceedings the court of justice is that they say the court of justice has the final say on all of these agreements which is not legally correct. They had the final say an interpretation provision of a concept of EU law whatever that means but after that it goes back to the arbit tribunal just final say >> there as far as I can see there are no questions uh online that remain on this particular topic um yeah >> okay which case Should we should we are you happy to carry on? I mean, do there's more water and there's coffee outside, but I imagine that the idea of a deadline of sort of 5:00 is probably more attractive than drifting on till well, you'd be lovely to have your company, but can we park? Everybody else, let's Are you happy to to proceed? >> Yeah. >> Yeah. Okay. In which case, um, is I stay here? Are you happy to Yeah. How can can you someone slide? >> Just needs my mouth. Yes. One second. >> Okay. So, um, bad news first. There's only going to be one article and it should. So, I'm financial services lawyer rather than an EU lawyer and that will be reflected in what I have to say. Also, financial services are not covered by the agreement. So, when I was first asked, I thought why do you want me there? But I have find something to say. great help of being able to talk to the person who was the head of insurance uh regulator. So she gave me some guidance on uh this talk which I am very grateful. So little bit on Gibralta's financial uh sector. I can't get this to move. Sorry that's not me. >> I'll change the slides if that's >> okay. Okay. So, next slide. Okay. It's Gibralta's financial services industry. It's uh essentially uh part of a international financial sector. It's I think the second biggest part of the economy and services after gambling which is coming later in this talk. Um and it's probably worthwhile just to spend a moment talking about the history of why insurance is so uh important to Gibralta. So in the 1990s um after Gibralta became part of the EU as explained before uh there was a perfect example of regulatory shopping and regulatory competition because what Gibralta was offering in insurance was EU standards. So robust internationally accepted standards but not the uh goldplated UK standards. So it was offering a very robust but lower compliance level standards for companies. It was offering a regulator supervisor that was seen to be accessible. It was offering the English language. It was offering uh a system that was perceived to be flexible. It was also offering tax advantages as well. So for that period uh insurance services really boomed in Gibralta and part of a broader uh boom in the economy. All of that changed with Brexit and today the financial services business or the insurance business in uh Gibralta is virtually all UK facing. So that's the world that uh Gibralta occupies in financial services. Its relationship with the UK is key and so a little bit on the relationship with the UK because it has a very special relationship with the UK in respect to financial services. So Gibralta has been upgrading its own uh financial services uh legislation um streamline modernizing and the like. It is also working with the UK in terms of having a privileged access to the UK market um on uh uh uh UK terms. There is a temporary arrangement in place which passports Gibralta firms into the UK and that will be replaced by a permanent agreement the Gibraltara uh agreeance of the the GAR agreement and I'm not going to go through the details of it but I want to skip to the next slide just to highlight one particular um uh element thereof and that's the uh since it's the word of the day the alignment uh provision in that. So under the uh the Jibralta authorization regime in order to maintain that special access to the UK, Jibralta has uh to commit to alignment with UK uh financial services standards. Um and it is alignment not just of the rules on paper but how they operate in practice as well. So sufficient alignment but essentially it is just sort of following the UK rules and also there are other conditions on that as well. So for instance that Jibralta has to ensure that uh ities with principles that um that it's not going to do things and prevent the use of the UK's financial system for a purpose connected with financial crime. And I highlight that because the one article of the uh agreement that I do want to talk about is with respect to anti-bunny laundering and countering uh the financing of terrorism. So in terms then of the impact of this agreement um so the UK new agreement on Gibralta one sense it's uh no impact but skip to the next slide. There's no direct impact as such. Um, sorry. Go on. You can skip on the next one too. And the next get me just can skip that one as well. Okay. Um, so no direct impact in terms of services from the agreement. Um, but there are um significant sort of indirect impacts. First of all, in terms of workplace mobility in terms of uh a sort of frontier workers and the like uh because of Gibralta's uh boom recently, it's expensive place to live. So a lot of people who work in financial services need to cross the border every day. The fact that there is that political regulatory stability is key as well. Um and there is the issue of anti-moneyaundering uh alignment. So this is article 198 which provides for um first of all for both parties to be able to continue to set their policies and priorities um their sovereignty but uh a floor on that in terms of the UK in respect of JVA not weakening or reducing its AML or CTF measures below the existing level of EU law and including by failing to effectively enforce the law and standards. So it's not just law on the books, it's law in practice as well. Um so there is a floor on Jibralta's uh uh AML CT C um FT uh uh obligations. Um and in terms of the physician going forward, um there's a kind of general commitment to um uh preserving money laundering at a high level and the moneyaundering sense at a high level. and also to review on either side when either side changes its uh uh but there is potentially um and this I think is slightly far-fetched in reality but I think at least in theory you can imagine uh conflicts of AML regimes. So, so Jibralta has to comply with the UK's AML regime in order to have access to the UK markets. Um, it also has to comply with the uh uh EU measures under this agreement. Uh, but over time uh the UK's measures may diverge from those in uh Gibralta or they may be applied and enforced differently. So the jibrolton's um uh supervisor may at some level not be enforcing appropriately AML legislation. So you have that position then where uh Gibraltar could potentially face uh kind of uh caught in the middle between contradictory compliance burdens or even potentially could find itself um in a position where it is compliant under UK law not under uh EU law. So um in theory if you can't work out those things then either party could take appropriate rebalancing measures. what those would be in the case of financial services given that Gibralta doesn't do financial services into the EU is perhaps slightly theoretical but you could imagine a world in which if that theoretical mismatch occurred then somehow from the EU's perspective Gibralta is now below where it should be in terms of AML that triggers a financial action task force you've also find itself that on the grrey list That in turn means that it is no longer doing things what it should be doing internationally to prevent financial crime. That means actually it kind of flows back into no longer having access to the UK because the UK authorization regime requires it to uh maintain those principles of international standards against financial crime. I think that's theor I think that's the I mean in reality it's theoretic you know. I mean I think the most likely situations where it will arise will be um that you have a moment in time where for example a country is on the EU's list and not on the UK's list or the UK has adopted new piece of legislation and or just a timing issue. So I think you know those are the realities. They will need to be managed and there is a process uh to manage them in article uh 198 but it is an example of a situation where you have two commitments to uh alignment which potentially at least could come into friction with each other. I'll stop there. Thank you. >> Thank you very much. Um and that was a very good segway to Peter. Thank you, Peter, for waiting. We've heard about financial services, which obviously important. Um, but gambling sounds more fun. >> Don't don't spoil it for me. Tell me, is it is it um is it No, I won't ask if it's fun, but is it do you enjoy working on the brutal regulation of gambling? >> Well, I mean enjoyment as much as anything else. Yes. It's uh it's intellectually quite stimulating, but uh you can hear me well, can you all? >> Okay. Well, good afternoon to you all. Um apologies for not having a PowerPoint presentation. Um but what I'd like to do and let me just take you through the sort of structure of my comments if you permit me, Katherine. uh I'd like to make some introductory observations then perhaps talk about what the treaty does or doesn't do in the context of gambling uh in the areas of regulation taxation and then the crossborder effects of the treaty as it impacts on the gaming sector. So if if I start first of all with the some observations um like like Jamie I am the other uh Gibralarian on this on these panels. So I come with a very Gibraltar focus uh and thank you all for interesting yourselves in our little rock. Uh it's it's it's great that it generates a lot of intellectual intellectual interest. Um just a few observations I say. I mean it's ironic that when we were part of the EU and we were part of the EU for many years with the UK. We're not of course part of the UK either keep or stress it. And when we were when we were in the U in the EU with the UK, we had freedom of movement of people, of services and of capital. And the services sector was very important. I'll come back to that. But we never had freedom of movement of goods. So what the treaty now delivers is two things we never had which was treat which is effectively freedom of movement to goods and mobility within the Shenhen area because the UK decided not to be part of Shenhen and it dragged us into that position even though we would willingly have been part of the Shenhen area when that was first conceived. So the treaty although it gives us more Europe as as Jamie was saying we are keen to have it gives us a very different version of Europe to the one we had pre-rexit. Um so then moving on to what that means uh in terms of financial services by my my observation uh as as as has been pointed out Gibraltar had a financial services industry that passported into Europe. We passported banking. We passported insurance. Not just to the UK as another state that we pretended was another member state for passporting services, but into the whole of Europe, including, by the way, member state Spain. Member state Spain quite regularly accepted Jibralta institutions and Jibralta services passporting into Spain albeit using a very elaborate what we what we used to call postboxing arrangement which required the Jibralta regulator to give notifications via the foreign office and onto Madrid. So Madrid turned a blind eye to the fact that it knew it was coming from Jibralta but it comes via the post box of London and therefore it worked. It was very pragmatic and it worked very well. But the point is that we lost that with Brexit and of course this treaty doesn't make up for it. We have we we were given continued it's something we had under the under under under the EU arrangements. We were given continued access to the UK in financial services as a sort of consolation prize for Brexit. But we have lost the whole of the markets and that that represents a real a real um a real a real adverse effect. But dealing now with gambling. Uh when I say gambling, of course I really the reason I think that we're talking about gambling and financial services, but just to put it into context, gambling and financial services represents at least 35% of the Gibraltar economy. Uh and and and when I say when I say gambling, we have no tradition in Gibralta of landbased casinos. Gibralta is not like Las Vegas. We haven't got a strip of casinos. When we talk about gambling, we are talking only really about remote gambling. Gambling undertaken by the internet. Something which started originally as telephone betting very small and then from 2005 2006 onwards became remote gambling. And in that area we're not unique. Our competitors in Europe are Malta, Olden and the man. So we have EU member state that does exactly the same as things we do provides cross frontier services across Europe across the world. Balta and we have the island of man and olden that are also British territories in a similar area. Um but uh uh the the industry which is remote in Jibralta has a very significant physical presence here. These are not virtual presences. They all have full control and management. And the vast majority, well certainly at least three quarters of the staff working in financial services and in gaming will live in Spain and work in Gibraltar. Uh and generally within the economy, just now put the the treaty into context, in the economy generally, I'd say about 50% of our workforce comes in across the frontier every day. And that explains why such prominence was given to the importance of mobility in this treaty. Now dealing with gambling directly and remote gambling as opposed to the position in financial services where of course there has for many years there has been a single market regime with passporting rights and and you know market rights that has never existed in gambling. the the European Commission and member states have always taken a quite different view on gambling taken the the position that gambling is a very special economic uh space which brings about or involves public policy considerations of a different order and therefore whilst the general freedom to provide services of the treaty of Rome was recognized by the European court as applying to gambling it also allowed space the commission and the court for each member state to create its own domestic regime uh as it dealt with the phenomenon of intellect gaming. So the position of the treaty doesn't affect any of that. We lost our rights to provide freedom of services in those territories in Europe which didn't have domestic legislation. Malta continues to have it for example. A Gibraltar operator will have a Jibralta license. And if it wants to operate in say Spain or indeed in the outside the the the the EU, say in Britain, it requires a Spanish license and a UK license. And that position is not affected by the treaty. Uh uh it is simply completely uh silent on the services provision generally and specifically regarding specifically. So it creates no new rights there. Under the treaty as you know there is a transaction tax that is to be introduced. This transaction tax is a tax levied on goods uh because the treaty deals with goods and not services. And that transaction tax is effectively modeled on a type of VA that u regime although it's distinct in some respects and we don't call it a that but it has no application to services at all. So in terms of taxation both with regard to um duties gaming duties and with regard to corporate taxes nothing the treaty uh impacts the current regime. Gibralta operators will remain subject to Gibralta gambling duties that are let's say relatively competitive by international standards but they also become they also become subject and remain subject to gaming duties in whatever country they're doing business. Say for example the UK a lot of our business not all of it but I'd say about 60 or 70% now is UK facing and they will of course Jibralta betting and gaming operators will pay UK duties on any customers in the UK which is why the recent increase in UK gambling taxes gambling duties uh was was met with great trepidation and and concern in Jibralta. Yeah. But but but there is no change in the treaty that impacts on that uh at all. Um the the the third so the the other the other reference to taxation and perhaps the the only one that that I want to highlight is that in article uh 211 and 212 there are general references to good governance and taxation standards. And I think that's quite interesting because references made to the OECD to the beep's action plan. In other words, to the mainstream um the mainstream taxation regimes to which all countries are subjected. And I say that's interesting because uh I think in the previous slide you had 12 a half% there as a corporate rate. It's now in fact 15%. But the point is that Gibraltar's autonomy or independence in taxation terms in direct taxation terms in particular corporate tax is not in any way affected by this treaty and indeed I would say is even strengthened by it because uh of course a 15% regime is really the minimum international level that uh that many of these international organizations are aiming for. Gibraltar sought to introduce the 15% uh even though if you look at comparable places say is of man Jersey they have a 0% corporate rate. Gibralta didn't feel that in a post-european uh uh situation it could gravitate towards a 0% it couldn't go the single ball direction. Um but it's it's it's the treaty does not detract from our sovereignty and autonomy and independence in the direct taxation field which is a critical element. It does in the direct thoughts but not in the corporate services sector generally. Then thirdly the impacts of the treaty on the business of gambling generally uh in terms of operational effects. I think this is where it gets interesting. Uh as I mentioned uh a great number of people that work in financial services and in gain me live in Spain and work in Gibralta and that's true across the economy. The fact that there will be uh now uh no constraints on movement will be a huge benefit uh in terms of how staff are managed and how you can bring them in and out of Jibralta. The frontier has in the past had better and worse times uh when it hasn't worked so well. Significant cues have built up that has been a disruptor to business. Uh the fact that we will now have settled mobility arrangements is a very very important element. So I think that is uh hugely positive and will uh rebound very well to the benefit of the of the of the industry. Um we talked about also mention was ma made of alignment on AML and CTF. I think those are important elements as well that the industry will have to keep an eye on and I think all the relevant points were made there. Uh the other the other the other element of course is that um equipment and and and resources will be imported now from Spain and the EU without any import duties or other constraints of that type. So I think that should make the resourcing of uh of businesses in Gibralta uh easier and more agile. I want to I want to end with one aspect which is problematic and which the treaty does not deal with and which um is uh which features quite highly I think in the concern of businesses locally. Um as we've noted uh an EU worker would be able to work in Gibralta and reside in Spain. and vice versa, a Jibralta resident would be able to reside in Jibralta and work in Spain. Um, at a British national, a UK British non noneu national that might work in Jibralta will not, as a matter of right, as I understand it, be able to live in Spain because this would really be a non-EU uh citizen being given rights to reside within the Shenhen area to work outside the EU. it and and and this is quite a significant issue because many of the financial services and gaming and other companies that relocate to Gibralta or that establish a presence in Jibraltza often bring staff from the UK uh and if that staff has to live in Gibralta can't live in Spain then that will mean that um not everybody can afford the property prices in Gibralta and there's a limit physically to how many we can actually fit on this rock and so that is that is that is a that is a An interesting feature which I think should be addressed given the purpose of the treaty article one of the treaty is to create this shared zone zone of prosperity between ourselves and the adjoining campo. If you're going to do that you don't want to make difficult uh one of the important elements of this dynamic which is attracting Anglo-Saxon business and operators to Gibraltan and the region in the way that we've seen over the last decade. Um, so I pause there. Uh, but I hope that's those reflections may have been of some interest. >> Thank you very much indeed, Peter. It's it's really good to hear you just talk about those old cases on gambling under article 56 that um and we know so well it's really very good to hear what's happened to them and how the gambling industry's uh still managing somehow to survive um despite Brexit. Um, turn now to Marcus. >> Yeah, I have a PowerPoint, but I'm hesitant to show it because we're so late in >> No, it's >> Yeah. >> full disclosure. >> Uh, at the beginning, so um uh this far exceeds my PowerPoint skills. So, I used AI to help me uh put this together. Um uh I I should maybe you know it's it's the highlight to last because as someone who's spent uh quite a few years on trade and environment uh and who's been sort of telling the classroom that the TCA is really the best inclass uh trade and climate change trade and environment agreement. there's now a new kid on the block and that is the EU UK agreement and the um I think uh really detrimental uh um for uh the the the collaboration also between the EU and UK on important environment, climate and energy matters. So I'll do this really quickly but um you know the declared aim is to remove physical barriers between Roberta and the Shenhen area and the main argument I want to uh put forward besides a bespoke settlement is that on environment and climate change the negotiators have gone well beyond the TCA in some respects materially further confirming that deny the dynamic mutual supportive sustainable development obligations are now part of the EU external relations default. Climate change becomes an essential element of the treaty relationship. Uh this is not the first time. Um uh but it's also included in the different recitals. I should highlight that uh military is largely excluded but civil nuclear um cooperation unlike in the TCA now forms a part of this agreement. So in the TCA civil nuclear cooperation between the UK and the EU is a separate agreement here is folded into uh this agreement and that explains a part why some uh of the 1,00 pages are needed. Um there is an essential element. We've heard about the human rights essential element and of course there's a breach pathway as well. Um either party may suspend or terminate the agreement. Um again the serious and substantial failure language. What is new and fantastic from a sort of climate environment point of view is that there is an important clarification to the TCA and it says for greater certainty an act or mission which materially defeats the object and purpose of the uh Paris agreement shall always be considered a serious and substantial failure. So the always in that sentence is important. Uh when it comes to uh civil nuclear cooperation there's uh title three article 17 and I apologize to is because I counted about uh 48 articles. So if the house numbers become too many um there is a little paper that uh we've also drafted and here you can see some of the elements I don't want to go into detail but there's dynamic alignment ahead especially after the decision on customs union has been taken uh there's a non-regression floor uh to the uh civil nuclear corporation there's liability continuity uh by also making reference to the uh 1960s Paris convention which establishes liability for nuclear accident and what is new there's a direct line to Spain right so there are enhanced also we think um you know think about the um uh the the Chernobyl disaster there is uh an enhanced ensed notification uh requirement in this agreement. Um the unlike the TCA well then it froze nuclear standards at the end of the transition the Jalta text expressually contemplates alignment with future Eurotom radiation protection law. So there is strong uh or or as Katherine called it brutal uh dynamic alignment. The level playing field provisions we already uh highlighted uh besides the general principles chapter 5 uh is the key to uh the environment and climate cooperation and then there are also provisions on trade and sustainable development. Um so the equivalence model is much stronger um than the the model here is much stronger than the equivalence model in the TCA. uh sustainable development is affirmed uh unlike what uh many uh of my friends in the environmental community what I've seen like to see it copies the TCA text and just says um uh the the parties reaffirm each party reaffirms its ambition of achieving economywide climate neutrality by 2050. This is slightly disappointing because um you know it is currently the law both in the EU and in the UK. Um uh but of course uh this leaves uh some um some flexibility uh as to uh carbon neutrality. Um uh what is interesting and I it might be just a footnote but um as as someone who always struggled uh with the footnote in the TCA on this um I I called it it drops the TCA hedge. It now firmly contains in article 200 the precautionary principle. It no longer refers to the precautionary approach. It uses mandatory language which is stronger and in a way incorporates the EU uh Jewish prudence the EU case law on uh the pre precautionary principle which I think is fantastic. Um I um should highlight that um as you would expect with the customs union after the customs union um sort of arrives there's then dynamic alignment also with regards to chapter 5 and this is um in a way quite uh progressive. It mirrors to a certain extent uh with some differences the Northern Ireland and the sovereign base of Cyprus protocols, the microate FTAs and what we're expecting the Switzerland bilateral three uh package to do. But nonetheless, it's the uh it's unique that a third territory accept dynamic alignment uh with the EU's uh environment and climate are key as a matter of uh treaty trade law. Um when it comes to carbon pricing there's a strong obligation on carbon pricing article 220 and there we have an interesting sort of again uh dare I say Jibralta is slightly uh caught between Iraq and somewhere else because it has to comply and there is potential for differences with the carving pricing regime of the EU when it comes to flights between Jibralta and the EA and the carbon pricing regime um uh of the UK when it comes to flights between the UK and Gibraltar. Uh so again um uh interesting and unlike the TCA there's a quiet ratcheting up of obligations because um not only will there be a review in 2030 but also regularly in the context of progression beyond the current frameworks to reduce emissions. Um um uh what is uh very important is the language on the common buyers sphere and articles uh 221 and 22 actually2 because common biosphere uh is contained in the TCA and has proven to be extremely uh uh important in the UK EU sand eel case. Right. So the fact that we share a biosphere uh means that some of these obligations have to be interpreted a bit more strictly. The court of justice uh has interpreted the um the common biosphere reference in the birds directive uh directive for example as giving more weight to scientific insight uh when it comes to these kind of obligations and hopefully that will result in more environmental friendly uh uh rulings. Um we already talked about the dispute settlement so I'll skip that. Um I have a slight obsession with CBAM the UK sebam the EU CBAM so those who don't know this there's a carbon border adjustment mechanism which on seven products leverages an extra levy and um uh it should be highlighted that Jiotaa participates directly in the EUBAM so that uh if if any of these products uh if the UK does not agree on the proposed participation in the EU ETSs, then the question or the linking with the EUS, the question of the regulatory difference between uh the EU uh the EU and the UK sebam because the UK is also planning a CBAM but the UK sebam is much simpler. It doesn't really it's it's uh yeah it's a simplified version I would say of the EU ban which has already become very very complicated um uh trade and sustainable development lovely language I should highlight that as in all EU trade agreements uh many parts of these uh uh of these chapters only are subject to the expert process and only if you not if you're not following the recommendations of the experts could you then be subject to the normal disk settlement process that's very similar I would say to uh other uh free trade agreements um when it comes to energy uh we've already heard there's not much about uh energy in any of uh not not many provisions uh for example on services on gam ling on e-commerce on uh even financial services and that's the same with energy. So this is a very light uh uh agreement when it comes to um the the the TCA. Um there's no electricity or gas trading chapter, no extension of the energy market or the uh TCO preparation provisions. Um but and that's a big cabinet the state aid framework customs and exercise and transport provisions all also cover uh elements of the NG title. So what's the conclusion here? um uh Paris agreement as an essential element is important. Uh dynamic um alignment or equivalence and then civil nuclear as part of the agreement really interesting innovations maybe also with regards to future agreements of the EU. Um and yeah, unfortunately also perhaps sort of victim of the current uh slightly more um uh climate skeptical framework, we know how we don't have binding uh rules on uh 2050. So taking in around and um as a whole uh the environment and climate uh in the draft is more ambitious in my view than the TCA and further evidence that the EU's uh uh project of embedding sustainable development in external relations remains very much alive. Thank you very much. >> Thank you very much indeed. That's really very very helpful. Um, have we got any questions for any of the three panelists this open? >> Bill. >> Uh, yeah, I have a question for for Marquez and um, thank you very much. So like you I was struck by the fact that the Paris agrement got a special status in 6165 under the essential elements and that for greater certainty an actution which materially defeats the object and purpose of the Paris agreement shall always be considered as a serious failure. Um, and my question relates to this word materially and coming a little bit now with the jurist credential hat on. I'm always struck by words like that. Um, you you highlighted also ambition as being sort of an unfortunate word and I always sort of struggle to see well what work do words like ambition or materially really do in these operative parts of of treaties. I sort of understand ambition language in a preamarular context because sort of sets the scene. Um but but how do you read this and is it sort of I mean is that a bit of a get out of jail free card because I mean what what really materially defeats the entire Paris agreement? I mean that would be quite a remarkable eventuality. >> Yeah. So it's it's language trial in uh both the TCA but more concretely in the EU New Zealand agreement right where they also use this materially defeating um it is slightly open to interpretation so for example EU Chile EU Mexico and EU Mosaur didn't agree on that language um I've I've written somewhat extensively that you know it's it's not triggering this position provision right the posision provision is designed dare I say like uh the Brexit uh provision not to be used >> okay >> but of course the object and purpose of a treaty has broader effects on the interpretation of the treaty and for example the the UK used some of that object objective language to its advantage in my view in the Sandiel case saying you know we want higher ambition because we want to fulfill these kind of objectives so um but you're quite right what does materially defeat the object and purpose of the Paris agreement well withdrawing from the Paris agreement right so that's the that's the back stop um there's even questions if you no longer send like Argentina did no longer send a delegation to the negotiations. If you no longer have, you know, climate protection at the national level, does that not is that not sufficient to defeat the materially defeat the object and purpose of the Paris agreement? Um, yeah. So, it's it's not a normal breach of the Paris agreement. It goes beyond that, but certainly I think the community would agree that withdrawing from the Paris agreement, withdrawing from the UN Flec like the US has just done does fulfill this provision and would automatically trigger the um the you know material breach provisions. >> I wonder whether I can add to that but the notion of material breach comes from the general of trees as well. So if you take a look at the Vienna convention envelope of treaties, it deals with material breach as one of the general grounds to withdraw or terminate an agreement. And then there is a definition there. It's a total repudiation or something that goes so against the object purpose of the treaty that it becomes intolerable. Of course, uh it would be easier and nicer and more certain if those evaluative tests that we get from that language uh could be adjudicated by disperate settlement bodies. If we had courts or arbitral tributals dealing with that then we could get a body of case law that will in a way establish tests whereby we can really judge these things. But as we have seen in the case of these agreements probably there is an express desire to keep that for the parties to sort out um and at best the cooperation council will maybe have a say but it's not my the point is that it's not very different from any of the other evaluative tests that we find in law right so if you think about things like causation or fault those are always a little bit generic. There is always a bit of a a framework of analysis and then we know what fault is. We know what legal causation is because judges work this out in lots of cases. >> Okay. Thank you. Um I think >> thank you is another topic and I would like to ask to Peter Monttero good friend. Uh what do you think about the decision of Spain yesterday decision of the listing Gibraren list the Spanish or tax haven list? Do you think that is symbolic or has it any consequence direct consequence in the financial life of Gibralta? Thank you Peter. >> Thank you Alejandra. Well, I I I I think it's more than symbolic. Uh it's certainly long overdue in that we think that having been taken out of the EU blacklist some time ago and blacklist of other countries that this move by Spain uh was one that uh that was merited. But I think you're right in that this is evidence of the new approach. Uh it obviously follows also not just from the treaty but on the tax agreement that the UK and Spain entered into in respect of Gibralta in relation to tax about five years ago and which set the scene for much more transparency between Gibralar and Spain on tax matters. I think that was an early indicator of uh a wish to be pragmatic on these matters. So I think I think Alejandra it's hugely significant and uh and when it comes to Manival evaluations of our jurisdictions for example and and and and generally compliance with international law norms the fact that our neighbor uh with whom we expect to have a deeper and better relationship going forward has taken this step I think is really really positive and uh you know much celebrated. I hope we'll have a public holiday given in celebration of it. >> Thank you. So I'd just like to take this opportunity to say a huge thank you to you all for gathering in the smallest room in the college on the hottest day of the year. The simple reason why we're in this smallest room is because it um a small matter of exams that start on Monday. So every other room in Crossing University has been devoted to exams. Um but because this is the smallest and hottest room, they've decided not to flip but on the porcel exam which is why we're in here. Um but I wanted to say a huge thank you to you all for giving up your time. Um if anyone would like to write up their contribution um we would very much welcome it for the Cambridge G. It would be quite nice to have a a small section on um the giant approval because as you say it might be a small a small rock but the implications are actually quite broad. So thank you. Now there should be um can you see if there's wine out? There should be wine outside um to um good. So may I suggest that um we call it a day here. go and get yourself some wild and um and either have it in the dark out there or in the light in here. It's a bit cooler out there, but it's a bit like And to those of you online, thank you so much. Thank you so much.