EU approach: ‘common rules for a common project’
Having introduced the topic of the Swiss–EU institutional issues in our previous steps, this article turns to the broader context. Switzerland is not the only country faced with institutional demands on the side of the European Union (EU). Rather, the EU sees a number of countries as (present or future) partners in a multilateral project which consists of the extension of the Union’s internal market.
Except for those who are critical of the EU as a matter of principle, it is generally agreed that the internal market is a great success and the crown jewel of the common project, whatever the criticism may be in other respects (eg in relation to the functioning of the common currency, the euro). From the Union’s perspective, offering participation in this success story even to non-Member States is by no means self-evident, even if it is economically beneficial for all parties. In any event, the Union is clearly of the opinion that if it concludes economic treaties with non-Member States in this field, these treaties should be based on EU law in order to achieve a homogeneous legal system. In other words, the non-Member States that wish to participate are invited to associate themselves to a system that is already in existence and the content of which is determined by the EU Member States and institutions. In the perspective of the Union, it is logical that non-members can never enjoy rights of decision-making, ie it is not conceivable that such states participate in the voting on legislation. At the most, they are admitted to decision-shaping through participation in working committees and the like.
Over the years, the Union has put an increasing emphasis on the homogeneity of the rules applicable in the framework of the extended internal market. This concerns, precisely, the institutional issues that we encountered in previous steps, in other words: updating, interpretation, supervision and dispute settlement. Ideally, agreements with non-Member States in the relevant fields should be parallel to the Union law from which they are derived and the same institutional rules should apply as within the EU. In other words: ‘common rules for the common project’.
This is, ultimately, the background of the Union’s demands for a revision of the institutional system of the Swiss–EU bilateral or sectoral agreements. For example, the EU Council of Ministers (ie the institution where the Member States’ Governments are represented by their ministers in order to deal with specific policy matters) in 2014 stated the following:
The Council reaffirms that by participating in parts of the EU’s internal market and policies, Switzerland is not only engaging in a bilateral relation but becomes a participant in a multilateral project. It has taken note of the reconfirmation by the Swiss Federal Government in December 2013 of its attachment to a sectoral approach. The EU believes that an ambitious and comprehensive restructuring of the existing system of sectoral agreements would be beneficial to both the EU and Switzerland.
However, from the Swiss perspective, the relationship with the EU is a bilateral one. After all, extending the agreed rules on participation in the Union’s internal market to further States who in turn have concluded treaties with the EU requires additional treaties with those countries, to which the EU is not a party. For example, after Switzerland had concluded the Bilateral I package with the EU, the European Free Trade Association (EFTA) States decided to revise the EFTA Convention in order to ensure that the same level of law would apply also in that other context. It is for this reason that the vote on immigration of 9 February 2014 has the potential of causing tensions not only with respect to the Agreement on the Free Movement of Persons with the EU and its Member States but also with the revised EFTA Convention.
As we will see in our next step, the Union’s blueprint for the reform of the institutional approach vis-à-vis Switzerland is that of the European Economic Area (EEA) Agreement, ie the Treaty that extends the Union’s internal market to Iceland, Liechtenstein and Norway. In a subsequent step, we will further see that institutional matters are also at issue in negotiations on an internal market association of the three microstates Andorra, Monaco and San Marino.
 Council conclusions on a homogeneous extended single market and EU relations with Non-EU Western European countries, General Affairs Council meeting Brussels, 16 December 2014, para. 44 et seq.
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