Gibraltar loses fight against single Member State status

The Gibraltar Betting and Gaming Association (GBGA) has lost the final stage of its legal case over whether Gibraltar and the UK can be treated as a single EU member for some aspects of EU law, receiving a ‘single entity’ ruling from the European Court of Justice (CJEU).

The ruling dampened any hopes Gibraltar had of achieving a special status after Brexit and followed on from the opinion of European Court of Justice Advocate General Maciej Szpunar, published in January, that Gibraltar and the UK territory are a single Member State.

The judgement means that European law regarding the freedom to provide services between Member States would not be applicable to the GBGA’s challenge to the introduction of 15% Point of Consumption (POC) tax in the UK in 2014.

The GBGA had argued that POC tax is illegal under European law because it violates Article 56 of the treaty on the functioning of the EU, which deals with the right to trade freely across borders.

The CJEU ruled that Gibraltar is a European territory that the UK is responsible for, and confirmed therefore that EU law is applicable to that territory.

In addition, the CJEU stated that under the 1972 Act of Accession, EU acts do not apply to Gibraltar in certain areas of EU law but that the freedom to provide services is not one of the exceptions.

The HMRC said that the GBGA had no enforceable EU rights as the provision of services by operators established in Gibraltar to customers in the UK is not caught by EU law.

The GBGA originally lost its argument in the UK courts but, following a review, the case was referred to the CJEU.

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