Opinion on Ways to Implement and Apply the Bilateral Agreements
In German in: Jens Drolshammer and Thomas Cottier (eds), The Anthology of Swiss Legal Culture, Dike 2014
57 Pages Posted: 2 Aug 2016
Date Written: July 27, 2016
This is a working translation from German to English of a legal opinion given by Daniel Thuerer in collaboration with Thomas Burri to the government of Switzerland, the Swiss Federal Council, on 7 July 2011. (The opinion was translated to English by Thomas Burri; the translation sticks as closely as possible to the original.) The opinion had been requested by the Swiss government in order to explore options of adding common institutions to the contractual arrangement between Switzerland and the European Union; this arrangement consists of a series of rather heterogenous agreements between the EU and Switzerland. The common institutions would be added in order to give effect to the demands of the Council of the European Union laid down in December 2010, which stated that it was necessary to add an overarching institutional "roof" to the contractual arrangements between the EU and Switzerland in order that the contractual obligations would be implemented better in Switzerland. The points elaborated in the opinion could now be of interest for the British government which explores new ways for its future relationship with the European Union after the British people decided to leave the European Union ("Brexit"). The opinion was originally published in The Anthology of Swiss Legal Culture, Jens Drolshammer and Thomas Cottier (eds).
Three approaches are proposed in this opinion in order to develop the implementation of the bilateral order. In all three approaches special institutions were proposed for the Swiss side of the bilateral order. For the implementation on the side of the Union the ordinary organs of the EU remain competent (Court of Justice and Commission of the EU). This ‘two pillar’-approach corresponds to the mandatory requirements by the Court of Justice of the Union.
In the first approach, the implementation of the Swiss side of the bilateral order is entrusted to the EEA/EFTA organs (EFTA Surveillance authority and EFTA Court). These are adapted to the interests and needs of Switzerland. In practice this approach largely amounts to an ‘accession’ of Switzerland to the Agreement between the three EFTA states (Iceland, Norway, and Liechtenstein) which established the EFTA Surveillance Authority and the EFTA Court. The prospects of this approach depend also on the readiness of the EFTA states to negotiate.
In the second approach the implementation of the bilateral order remains largely within the Swiss order. However, an independent Implementing Body is created which has the powers to give advice and to act in judicial procedures. A particular Chamber of the Federal Supreme Court is in charge of judicially implementing the bilateral order in Switzerland. It can be seized by the Implementing Body with an action claiming that Swiss actions violate the bilateral order.
The third approach is in between the other two approaches. In accordance with the example of the EFTA institutions an Implementing Body and a Judicial Forum are created which direct the implementation of the bilateral order in Switzerland. The difference to the second approach is that the organs are more removed from the Swiss order. This finds expression mostly in a preliminary ruling procedure in which the Judicial Forum hands down judgments about the interpretation of the bilateral order and in the fact that the Implementing Body and the Judicial Forum can also examine the legislative and constitutional measures adopted by the federal institutions.
Each of the three approaches has its advantages and disadvantages. These are described in the opinion. Which of the options is chosen depends on the negotiation position of the Union and the capital that Switzerland is ready to sacrifice. Yet, at the beginning of the process stands a political decision taken by the Federal Council.
The approaches mentioned are examined in a broader context in the opinion: the context of bilateralism and possible variants and limits of reform are presented, the reform proposals are generally assessed and strategic priorities are sketched.
The opinion pursues the aim of putting together for the Federal Council a basis for an objective and informed decision.
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