Time-line of Swiss-EU talks and negotiations
- A system of continued updating of the bilateral market access law in view of changes in the relevant EU law, with a possibility of legal sanctions in case one party refuses. In the field of labour protection in the context of the posting of workers, the draft text contains certain special rules for Switzerland which deviate from EU law. There are no special rules with respect to the Union Citizenship Directive, which means that it would be left to the updating negotiations between the parties to determine in how far this Directive falls under the obligation to update;
- An interpretation of the bilateral market access law in line with the case-law of the Court of Justice of the European Union on the same EU law matters;
- A mechanism for the resolution of disputes between the parties with several levels: first, discussions in the Mixed/Joint Committee of the relevant agreement. If the dispute cannot be solved on this level, a party can demand that the case goes to an arbitration panel. Where the interpretation of provisions or concepts derived from EU law are at issue, the arbitration panel requests a ruling on the correct interpretation from the Court of Justice and thereafter applies this interpretation to the dispute before it. The interpretative ruling of the Court of Justice is binding. 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 Art. 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’. [5]
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] Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System ( ‘the IMI Regulation’ ), OJ 2014 L 159/11[4] Draft text of the institutional agreement (in the original French language; unofficial translations in the Italian and German languages).[5] Opinion 1/92 (EEA II), ECLI:EU:C:1992:189, para. 35.[6] For more information, see the “Tobler/Beglinger-Brevier” on the Institutional Agreement (only in German).Switzerland in Europe: Money, Migration and Other Difficult Matters

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