Gibraltar is a British overseas territory that is not part of the customs union, the VAT regime or the Schengen area.

The United Kingdom, and Gibraltar by extension, joined the European Union in 1973, followed by Spain in 1986, when Franco's dictatorship came to an end. Since then, Spain has gradually opened the border gates with Gibraltar, which had been closed by General Franco since 1969 as a means of asserting Spanish sovereignty over Gibraltar. In 1985, Spain finally opened its border completely, reviving hopes that the question of sovereignty would be sorted.

But this claim to Gibraltar has never disappeared.

On the Rock, the rejection of Spanish sovereignty was clearly expressed in a referendum in 2002, with a turnout of 88%, in which almost 99% of voters reaffirmed their commitment to the British Crown by rejecting shared sovereignty with Spain.

Nevertheless, Spain's role is still perceived as a very present threat, and this is recurrent in the post-Brexit negotiations on the status of Gibraltar.

Historically, following the Brexit referendum in June 2016, a draft providing guidelines for the withdrawal negotiations was published by the European Council on 29 April 2017.

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Article 24 of the agreement stated that after the United Kingdom's departure, no agreement between the European Union and the United Kingdom could apply to Gibraltar without an agreement between Spain and the United Kingdom.

Two other documents subsequently emerged as part of the negotiations, namely a framework document approved on 31 December 2020, followed by an EU negotiating mandate in July 2021. On reading this mandate, the UK Foreign Secretary, Dominic Raab, stated that the draft mandate was in direct conflict with the content of the framework document and that the draft mandate could not form a basis for negotiations as it sought to undermine the UK's sovereignty over Gibraltar.

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The Gibraltar Government adopted a similar position by issuing a statement highlighting the conflict between the two documents. Its main objection concerned the presence of Spanish law enforcement officers in Gibraltar's territory, port or airport. Indeed the third part of the negotiating mandate stipulated that Spain would apply European Union rules to ensure full protection of the Schengen area's external border.

The annex to the mandate also states that the agreement should aim to remove all existing physical barriers between Gibraltar and the Schengen area for the movement of persons (article 15 of the annex), with border controls being carried out by Spain in accordance with the Schengen acquis (article 16 of the annex). It means that Gibraltar will not participate in or implement the Schengen acquis as such, but only certain rules relating to the movement of persons will be adopted, and the UK authorities will not have access to the database reserved for Member States by EU law. Entry and exit checks will be carried out by Spain as a Member State with special safeguards for Gibraltar residents.

Although the mandate states that the negotiations will be conducted without prejudice to questions of sovereignty and jurisdiction (Article 10 of the Annex) and taking into account Gibraltar's geographical location, its status under international law and its relationship with Spain (Article 7 of the Annex), it seems that Spain's involvement is still perceived as a threat.

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Indeed, no concrete progress has been made since then. In order to protect the territorial integrity of the Member States of the European Union guaranteed by Art. 4(2) of the Treaty on European Union, any separate agreement on Gibraltar will require the prior agreement of Spain (Mandate, Part III). Consequently, any political delay is bound to make it difficult for the negotiations to progress. Spanish control over the border with Gibraltar remains an open question, both politically and practically.

The twelfth meeting between Gibraltar, the UK, Spain and the EU in January 2023 did not result in any substantial technical changes. At present, the border issues have not yet been resolved and the old Spanish claim is still weighing on the negotiations.

In March 2023, negotiations were still at an impasse, with Spain insisting that its Policía Nacional should control entry into the Schengen area (as it does at all other Schengen entry points) and the UK demanding that the work be carried out by Frontex officers (who elsewhere only supplement the national authorities by way of exception).

A final agreement on the EU Treaty for Gibraltar is, however, highly unlikely before the results of the Spanish general election on 23 July 2023.

This is because the Spanish government cannot agree a treaty now that an election has been called there, so any agreement would have to be agreed by the UK and Gibraltar governments with the next government in Madrid (and the rest of the EU).

Gibraltar's Chief Minister stressed in a speech on 2 June 2023 that he would have agreed to a treaty if there was a secure option for Gibraltar, but no such offer has been made to Gibraltar to date.

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