The treaty reached between the European Union and the United Kingdom regarding Gibraltar establishes a new legal framework that substantially alters the customs and port operations of the Rock. The text, which consists of more than a thousand pages structured into various parts and dozens of annexes, dedicates its Title II of Part Three —titled "Provisions on customs, indirect taxation, and related commercial issues"— to establishing the foundations of a customs union between Gibraltar and the EU, with direct implications for the traffic of goods in the Strait of Gibraltar.
Article 238 of the agreement clearly defines the purpose of this regulatory block: to eliminate all physical barriers and associated procedures between Gibraltar and the Union for goods traveling by land, while simultaneously protecting the integrity of the European single market and the financial interests of both parties. To achieve this objective, Article 240 formally establishes a customs union between the EU and the United Kingdom concerning Gibraltar, while Article 241 specifies that the customs territory of this union includes, on one hand, the customs territory of the Union, as defined by the EU Customs Code, and on the other, the customs territory of Gibraltar, which constitutes a customs space separate from the customs territory of the United Kingdom.
The elimination of tariffs between the EU and Gibraltar is enshrined in Article 243, which prohibits the application of customs duties on imports or exports, including those of a fiscal nature. This prohibition is complemented by restrictions on quantitative measures, outlined in Article 244, which establishes a space for the free movement of goods between both territories. Article 246 adds that all existing physical barriers between Gibraltar and the Union for goods traveling by land will be eliminated, without prejudice to the controls and formalities that the parties may maintain to ensure the proper application of the treaty.
The port of Gibraltar occupies a central place in the architecture of the agreement. Article 247 establishes that, until the Cooperation Council adopts a specific decision declaring operational the border control posts and customs offices at the port and airport, goods —except those transported by travelers in their personal luggage— may only enter and exit Gibraltar by land. However, the article itself contemplates two exceptions of great relevance for port activity. The first allows Union goods to be transported to Gibraltar by sea, in accordance with the rules of Annex 19. The second authorizes the maritime movement of goods from Gibraltar to third countries, in accordance with what is established in Annexes 19 and 21.
Annex 19 details the conditions for the maritime entry of community goods. According to Article 4, Union goods dispatched for exit at the designated customs office in Algeciras may be transported by sea directly from that office to Gibraltar, following the shortest route and with a maximum arrival time of two hours from departure from the port. The vessel must be unloaded entirely in Gibraltar. The movement will be carried out through the New Computerized Transit System (NCTS), using the code T2GI for goods in free circulation or T1GI for non-community goods.
Regarding the exit of goods by sea, Annex 21 regulates the cases in which products subject to active refinement or temporary admission procedures may leave Gibraltar by sea to countries outside the customs union. This is a possibility conditioned on exceptional circumstances that are duly justified. The holder of the authorization must present a re-export declaration to the designated customs office at least 48 hours in advance, and the goods must be physically present at the port of Gibraltar at the time of such presentation. Article 7 of Annex 21 also allows for the maritime arrival at the port of Gibraltar of fuel intended for commercial maritime vessels, which will be subject to a customs deposit regime for later use as supply for vessels.
The treaty designates three customs offices in Spanish territory: La Línea de la Concepción, Algeciras, and Sagunto. Appendix 1 of Annex 21 details this list and also provides for the designation of a subsidiary customs office in Portugal, which would only be activated if none of the three Spanish offices were accessible for more than 24 hours due to unforeseen circumstances or force majeure. The location of Algeciras as the designated customs office with the capacity for dispatching goods destined for Gibraltar by sea makes it a key piece of the new logistical framework.
The tax regime that the agreement imposes on Gibraltar introduces a transaction tax in place of VAT, as well as special taxes on goods subject to these levies in the EU. An independent advisory body, jointly established by the United Kingdom regarding Gibraltar and the Kingdom of Spain, will annually assess the impact of the applied rates on competition and possible trade distortions with the adjoining border area. If significant distortions are detected, the EU may activate a safeguard procedure that allows it to apply VAT and excise taxes of the corresponding member state to goods in transit to Gibraltar.
Customs control extends to the surveillance of the port through a joint visit regime regulated in Annex 22. The competent authorities of the EU will have continuous real-time access to information about the schedules of all vessels and aircraft entering and exiting the port and airport, arrival and departure notices, available customs documentation, and the number and characteristics of prior inspections carried out by Gibraltar authorities. During joint visits, inspections of vessels and aircraft may be carried out, selective controls of goods based on risk analysis, and random inspections of passenger luggage. If the Gibraltar authorities fail to meet their cooperation obligations, the movement of commercial goods through the port may be suspended following the appropriate notification.
For the movement of persons, Article 29 establishes border crossing points at the port and airport of Gibraltar, where controls compliant with the Schengen Border Code will be conducted. All passengers entering Gibraltar by port or airport will be subjected to border controls. The agreement allows, as an exception, for port controls to be conducted at the airport crossing point if traffic volume allows, escorting passengers from the port to the airport facilities. Entry controls will be successively carried out by the United Kingdom authorities regarding Gibraltar and by those of the Kingdom of Spain, while on exit, the order is reversed.
The chapter on maritime transport, outlined in Article 286, establishes obligations for non-discriminatory treatment. Each party will grant vessels providing international maritime transport services and flying the flag of any member state or Gibraltar no less favorable treatment than that granted to their own vessels regarding access to ports, the use of port infrastructure, maritime auxiliary services, customs facilities, and the allocation of berths and loading and unloading facilities. The port services that must be available under reasonable and non-discriminatory conditions include pilotage, towing, provisioning, fuel and water supply, waste collection, port captain services, navigational aids, emergency repair facilities, anchoring, berthing, and unmooring, and essential land operational services for vessel operations, such as communications and power supply.
The chapter dedicated to tobacco obliges the United Kingdom regarding Gibraltar to establish a traceability system equivalent to that of the EU, share information on tobacco product movements with community authorities, and cooperate in the fight against smuggling. The treaty also establishes mechanisms for exchanging information on raw, unprocessed, and processed tobacco that enters, is imported, sold, leaves, or is exported from Gibraltar.
The transitional provisions stipulate that Title II of the agreement will not apply to goods whose movement began before the treaty's entry into force and ended afterward. This transitional period lasts for two months. Goods that were legally on the Gibraltar market before the date of entry into force will have a three-month period without being subject to the requirements of Article 256, which mandates that products marketed in Gibraltar comply with EU standards.
The agreement configures, in sum, a model of customs integration that, without incorporating Gibraltar into the EU customs territory in the strict sense, subjects it to a substantial part of community regulations regarding the trade of goods, indirect taxation, and border controls, with the port as the neuralgic point of a system of shared oversight between the Gibraltar authorities and those of the European Union.