Significance of 2017 Spanish Supreme Court Judgment to Gibraltar’s new normal post “Treaty”

The publication of the proposed UK–EU Treaty concerning Gibraltar has understandably focused public attention on questions of border fluidity, economic integration, institutional cooperation and constitutional safeguards.

Much of the discussion has recently centred upon the proposed Concordat currently under discussion between the Governments of the United Kingdom and Gibraltar.

That instrument is expected to address an issue of major constitutional importance which is how Gibraltar's democratic wishes are to be protected where the United Kingdom remains the international treaty party whilst Gibraltar bears the direct consequences of the Treaty’s operation.

The Concordat is therefore widely understood as an attempt to reconcile two constitutional realities:

The first is the United Kingdom's exclusive competence in matters of treaty-making under international law.

The second is Gibraltar's modern constitutional status as a self-governing British Overseas Territory possessing extensive domestic autonomy and democratic legitimacy.

The concern which the Concordat seeks to address is easy to understand. Whilst the United Kingdom would remain the contracting State, a future British Parliament could, as a matter of British domestic law, exercise powers of withdrawal, suspension or amendment in relation to the Treaty.

Gibraltar seeks assurances that such decisions cannot be taken without its consent, thereby preserving an effective constitutional safeguard over any fundamental alteration of its future relationship with the European Union.

Important though these questions undoubtedly are, they risk obscuring another legal development whose significance may become increasingly apparent as the Treaty enters into practical operation. That development is found not in Brussels, London or Gibraltar, but in Madrid.

In 2017, the Spanish Tribunal Supremo delivered judgment in proceedings brought by the Government of Gibraltar against the newspaper Diario ABC.

The case arose from an article which associated Gibraltar with organised crime, money laundering, tobacco smuggling and financial opacity. Formally, the proceedings concerned a right of rectification under Spanish media law.  Charles Gomez & Co represented the Gibraltar government with a top tier team of Spanish lawyers.

Constitutionally, however, the judgment achieved something far more significant.

For the first time at the highest judicial level in Spain, the Tribunal Supremo recognised that the Government of Gibraltar possesses legal personality and procedural capacity before the Spanish courts. That ruling binds every level of authority in the Spanish State.

The Court was not asked to recognise Gibraltar as a sovereign State, nor did it do so. Spain's longstanding position on sovereignty remained entirely untouched. The Court expressly proceeded on the basis that Gibraltar is not an independent State and that responsibility for its external relations remains vested in the United Kingdom.

Yet the Court rejected the proposition that the absence of statehood deprived Gibraltar's Government of legal standing.

Instead, the Tribunal Supremo examined whether the Government of Gibraltar constitutes a public legal entity established under its own constitutional arrangements and capable of acting through its lawful representatives. Referring to the Gibraltar Constitution Order-in Council made under the Royal Prerogative 2006, the Court concluded that it did.

That conclusion carries consequences extending beyond the immediate dispute.

As a matter of Spanish law, the Government of Gibraltar was recognised not merely as a political institution or administrative mechanism but as a juridical entity capable of asserting rights, defending interests and appearing before Spanish courts in its own name.

The importance of that finding lies in its clear practical implications.

The operation of the new Treaty framework will inevitably generate a multitude of administrative, regulatory and institutional decisions. While public discussion often gravitates towards dramatic constitutional scenarios, whether Gibraltar remains within or outside a particular legal arrangement, the reality of treaty implementation is unlikely to be a zero sum / in-or-out game.

Questions will arise concerning regulatory cooperation, border management, administrative decisions, compliance mechanisms and institutional responsibilities. Inevitably, disagreements and disputes will emerge.

Some of those disputes may involve decisions taken by Spanish authorities. Others may concern the interpretation or application of measures affecting Gibraltar's institutions. In certain circumstances, those matters may find their way before Spanish courts.

When that occurs, the 2017 judgment may assume a significance that was not fully appreciated at the time.

The decision establishes that Gibraltar's Government need not necessarily disappear behind the constitutional personality of the United Kingdom whenever its institutional interests are affected within Spain.

Within the limits of Spanish domestic law, Spain's highest court has already recognised Gibraltar's Government as possessing the capacity to act and to be heard in its own right.

The future relationship between Gibraltar, Spain, the United Kingdom and the European Union will not be shaped exclusively by treaties, constitutional declarations or questions of ultimate sovereignty.

Equally important will be the everyday operation of legal institutions, their capacity to participate in decision-making, to challenge administrative action, to defend their interests and to secure effective remedies when disputes arise.

The proposed Concordat seeks to ensure that Gibraltar's voice is protected in its constitutional relationship with the United Kingdom. The 2017 judgment, by contrast, may prove to have secured something equally valuable in Gibraltar's relationship with Spain (the EU's "Member State Representative") which is recognition that its government possesses an independent legal personality capable of defending Gibraltar's interests directly before Spanish courts.

As Gibraltar enters what may be described as its post-Treaty constitutional landscape, both developments deserve careful attention.

One concerns the preservation of democratic consent within the British constitutional family. The other concerns the practical capacity of Gibraltar's institutions to operate effectively within an evolving European legal environment.

History often teaches that constitutional change is not determined solely by grand political settlements. Sometimes its most enduring consequences emerge from seemingly technical judicial decisions whose significance becomes apparent only years later.

The Tribunal Supremo's judgment of 2017 may well prove to be one such decision.