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Time-line of Swiss-EU talks and negotiations

Having discussed the EU’s models for a reform of the institutional side of the Swiss–EU legal relations, we now turn to what has actually happened so far.

As a starting point, remember that the European Union’s (EU) original idea was to develop a model that would follow the system of the European Economic Area (EEA) Agreement, ie a two-pillar system including not only rules on the updating of the law and its homogeneous interpretation but also on mechanisms for international supervision and dispute settlement including a judicial element. However, the Swiss Federal Government felt unable to agree to such a model. In June 2012 it sent much more modest suggestions to the EU (notably without an international supervision on the Swiss side). These were rejected by the Union as insufficient. The documents related to this phase can be found on the website of the Swiss Federal Administration.

Thereafter, the parties engaged in informal talks at the level of high officials of both sides. Through this process, a possible approach emerged which then was used as the basis for the adoption of negotiating mandates by the parties. On the Swiss side, the negotiation mandate was adopted in December 2013, on the EU side in May 2015. The reason for the delay on the EU side was the Swiss vote of 9 February 2014 on migration and the initial decision of the Swiss Federal Government not to sign the Croatia protocol to the Free Movement of Persons Agreement. The EU then felt that now the entire relationship had to be re-evaluated, which led to a certain delay in the adoption of the mandate.

In line with a generally practised approach, the content of the negotiating mandates is not made public. This is particularly true for the EU side. The Federal Council at least to a certain extent described the general framework of its planned approach before it adopted the mandate.[1]

The negotiations between the EU and Switzerland commenced in spring 2015. According to informal information, they concern in particular the fields where a dynamic approach to the development of the law is important in the eyes of the EU, namely the Agreements on the free movement of persons, on air and road transport, on conformity assessments and on agriculture. However, there is so far no official confirmation with respect to the agreements concerned.

During the negotiations it soon became clear that the views of the parties on important aspects still differed quite considerably. For example, the Swiss Federal Government has taken the line that (full) incorporation of the Union Citizenship Directive (Directive 2004/38) [2] into the bilateral acquis is part of the red lines that it was not prepared to cross (it had already refused it on an earlier occasion). Differences also emerged with respect to the dispute settlement mechanism. The model that had resulted from the informal talks is one where a dispute between the parties first goes to the Mixed Committee that is in charge of the Agreement in question, from where it may go to the Court of Justice of the European Union (CJEU). However, different from the mechanism under EEA law, for this latter step it is not necessary that the parties agree on this issue. Rather, each party can decide unilaterally to call on the Court. This is the result of a suggestion by Switzerland, who through this approach hoped to avoid the introduction of an international supervision mechanism on the side of Switzerland (on the side of the EU, the infringement procedure is available, since the Swiss–EU bilateral/sectoral law is part of EU law). The EU accepted such an approach since unilateral access to the CJEU in fact means that the European Commission could act as a kind of watchdog. In practice, the corporate tax dispute that we discussed in our first course week shows that it would be the Commission who would investigate matters in view of a possible decision of the EU to call on the CJEU. This is also logical, given that the Commission has this role within the EU law framework.

The differences between the EU and Switzerland with respect to the dispute settlement mechanism concern not so much the procedure, on which they appear to agree, but rather the effect of a ruling of the Court of Justice. Switzerland emphasises the fact that such a ruling would be rendered in the framework of dealing with the dispute in the Mixed Committee, which therefore would remain in charge and which will would then decide what to do with the judgment. In other words, it would be the parties who, in the framework of the Mixed Committee, would decide on the dispute. Conversely, for the EU it is clear that a CJEU ruling must be binding. In other words, it would in effect be the Court that would decide on the dispute. For the EU, this emerges without any doubt from rulings of the Court given in other contexts, in particular that of the dispute settlement mechanism under Art. 111(3) of the EEA Agreement. According to Opinion 1/92, even though the aim of Article 111(3) EEA Agreement is not to entrust the Court with the settlement of the dispute, which continues to be the responsibility of the EEA Joint Committee, the interpretation to be given by the CJEU is binding, as is clear from the very wording of the Agreement. As a consequence, ‘the Contracting Parties and the EEA Joint Committee alike will be bound by the Court’s interpretation of the rules at issue’. [3]

In early summer 2016, this point in particular remained unresolved.


References

[1] Press Release of the Federal Council of 21 August 2013, ‘Europe: Federal Council submits draft institutional terms of reference for consultation’.

[2] Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ 2004 L 158/77 (as corrected).

[3] Opinion 1/92 (EEA II), ECLI:EU:C:1992:189, para. 35.

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This article is from the free online course:

Switzerland in Europe: Money, Migration and Other Difficult Matters

University of Basel