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Courtesy of the Telegraph
Spain’s effective veto over whether the Brexit deal will apply to Gibraltar could be illegal under EU law and risks being overturned by the European Court of Justice, The Telegraph can reveal. MEPs and legal experts have warned that the veto over Gibraltar's future after Brexit would give Spain special status among EU nations, which are supposed to be equal.
The EU's Brexit negotiating guidelines, drafted on behalf of the remaining 27 countries, state that the Brexit deal will not apply to Gibraltar without an "agreement between the kingdom of Spain and the UK". It led to accusations that Spain was using Brexit to mount a "land grab" for the Rock.Spain's right to a veto over Gibraltar's post-Brexit future must be based on EU treaty law. However, it is uncertain if Article 50, which triggered Brexit, is legally watertight enough to give the guarantee.
Nothing is clear about the legal issues arising from Article 50. Isabella de Monte, a Socialist MEP from Italy, has demanded clarification over the issue in a European Parliamentary question.She asked if Article 50 was strong enough to support the special treatment of the Spanish and, if not, if there was another legal basis for the veto in the Treaty of the EU.
Bart Van Vooren, of global law firm at Covington and Burling, said: “This is actually a complex question of EU constitutional law.“Could such a legal issue become an obstacle to the withdrawal agreement with the UK? That certainly cannot be excluded."
“Nothing is clear about the legal issues arising from Article 50,” said Steve Peers, expert on EU law and professor of law at the University of Essex. He added: “Usually the ECJ says that the EU has flexibility in international negotiations.”