A first glimpse of institutional matters

In our previous steps, we have seen that in terms of their content the Swiss–EU agreements that deal with economic matters are selective in nature in that they provide for only a partial association of Switzerland to the Union’s internal market. This makes the Swiss–EU economic law clearly less ambitious than the European Economic Area (EEA), which covers the full internal market (plus certain other issues in addition).

A comparison with the EEA shows that there are marked differences also in other regards. This concerns the institutional side of the law, ie the rules on the functioning of a given agreement. Important issues in this context are:

1. the further development of the agreement once it has been signed,
2. its interpretation,
3. surveillance of compliance with the agreement (ie whether its rules are followed in practice),
4. the settlement of disputes between the parties to the agreement.

From the point of view of the European Union (EU), these issues are particularly important in a situation where the (partial or full) extension of its internal market to selected non-Member States is at issue, as is the case for the EEA and for the Swiss–EU sectoral/bilateral law. In particular, a true extension can only be achieved if the terms used in the agreements with the non-Member States are given the same meaning as the EU law from which they are derived (which concerns the interpretation of the agreement) and if the agreements ‘grow’ together with the relevant Union law (which concerns the dynamic updating of the agreements), in other words if there is homogeneity between the two systems of law in that regard.

We will take a closer look at the institutional challenges of the Swiss–EU law at a later point in our course. At the present time, we simply note that whilst the EEA Agreement provides for a uniform approach on the four above-mentioned points for all areas that it covers, the Swiss–EU sectoral/bilateral law is very disparate in this regard. Indeed, different agreements provide for different approaches with respect to the agreements’ updating, interpretation, surveillance and also its system of dispute settlement.

This is not surprising given the fact that here we do not have one agreement that forms the basis of the legal relationship between Switzerland and the EU, but rather numerous agreements that have developed over a long time. There are, in fact, different generations of agreements which exhibit rather different features. For example, only very few and then comparatively recent agreements were concluded with rules about a dynamic updating of the acquis, among them the Schengen and Dublin Agreements, to which we will turn in the next course week. Note: The term acquis in EU law refers to the body of law in a given subject.

It is obvious that this disparity on the institutional level adds to the complexity of the Swiss–EU legal system.