A legal relationship in three phases

We would now like to turn to some more concrete information about the Swiss-EU sectoral or bilateral law. Further on in this step, you can find a chart giving you an overview on how this law developed in three phases. The first phase of the sectoral or bilateral law began already in the 1950s. This phase is often forgotten even though some of these agreements are still in force, for example, the agreement of 1967 on the trade in watches. Remember that, at the time, the EU did not yet exist. The agreements of this phase were, therefore, concluded between Switzerland and the European Communities.

The abbreviations on the chart stand for the European Coal and Steel Community, ECSC, and the European Economic Community, EEC, which, at a later point in time, was renamed European Community, EC. The second phase in the development of the sectoral or bilateral law began with the Free Trade Agreement of 1972. At that time, it was part of a larger group of agreements concluded by the EEC with the EFTA states. Today, the agreement with Switzerland is the only one surviving of that group. All other EFTA states of that time either became members of the EU or joined the European Economic Area Agreement, which includes rules on the free movement of goods.

This phase ended with the Swiss referendum on the accession to the EEA as discussed previously. Again, some agreements of that time survive, among them notably the agreement about insurance, which deals with the freedom of establishment of insurance businesses, for example, the right of such businesses to be present in another state in order to conduct business on a long-term basis. Note the agreement does not cover the free movement of insurance services, for example, short-term or occasional activities of insurance businesses in a cross-border situation. Finally, in the third phase, the path of the sectoral or bilateral agreements was widened beyond the traditional economic issues.

As you can see on our chart, there are two packages of agreements in Switzerland commonly referred to as the ’Bilaterals 1 and 2’ plus a number of subsequent agreements. Many of these agreements deal with economic matters. However, some are about other issues, for example about the automatic exchange of financial account information and about Swiss participation in part of the EU’s asylum law, the so-called Dublin system, and in part of the EU’s border regime, the so-called Schengen system. In addition, there is a number of co-operation and administrative agreements, for example on the cooperation of the competition authorities of the parties to the agreement and on Swiss participation in the work of the EU’s environmental and asylum agencies.

For some time, there were also agreements providing for the participation in EU programmes on research, education, and culture. However, these have largely been halted by political developments to which we will return later. Finally, it should be noted that in fields outside these agreements Switzerland is often adapting its national law to EU law quite independently of any legal obligation to do so. In Switzerland, this approach is called autonomous adaptation. The reasons for it are purely pragmatic. If the Swiss law were totally different from the law of all its neighbours, Switzerland would suffer, for example because businesses would face difficulties in exporting their products. In so far, the autonomous nature of this approach may rightfully be questioned.