Gibraltar may well have a special status in the European Union, but the fact remains that it and the United Kingdom together constitute one and the same member state in the eyes of the Treaties, the Advocate General concluded on Thursday 19 January, before the Court of Justice of the EU (case C-591/15).
A professional association – the Gibraltar Betting and Gaming Association – landed a considerable coup when it convinced the judges of the High Court of Justice (England and Wales) to refer to the Court of Justice of the EU in order to determine whether Gibraltar has the constitutional status of a territory separate from the United Kingdom. It was in the framework of a dispute over a taxation regime that the association sowed the seeds of doubt as to whether the provision of services between the two areas should be treated as trade within the EU.
Gibraltar is a British overseas territory with a unique status in the EU. It has been part of the EU since 1973 when the United Kingdom joined, but it is not a member in the same way as the UK. It is excluded from four areas of EU policy: customs union, common trade policy, common agriculture policy and common fisheries policy. It is not subject to VAT levying requirements and nor is it part of the Schengen zone.
Despite the special status, Gibraltar is not, according to the treaties, a separate entity, even though EU law applies there, as the treaties were ratified only by the UK. As Advocate General Maciej Szpunar observed, the treaties are silent on the relationship between the EU and Gibraltar as regards the application of the fundamental freedoms. The result for this case is that for the purposes of the freedom to provide services, Gibraltar and the UK should be considered a single entity. (Original version in French by Jan Kordys)