System of bilateral accords hits roadblock

Relations between Switzerland and the European Union seem exhausted

The system of bilateral accords governing relations between Switzerland and the European Union seems to have reached the limit of its possibilities, but Bern and Brussels are far from being on same page about how to resolve the impasse.

This content was published on May 24, 2012 minutes
Tanguy Verhoosel, Brussels,

December 14, 2010: the foreign ministers of the 27 EU countries sign the death warrant for  the old system of bilateralism.

“[…] Although the current system of bilateral accords has worked well in the past, the principle challenge for the years to come will be to go beyond that system, which has become complex, difficult to manage and which has manifestly reached its limits,” was the conclusion adopted by the ministers concerning the EU’s relations with the countries of the European Free Trade Association (Efta), of which Switzerland is a member.

For the EU then, things are pretty clear. Switzerland cannot expect to have access to the EU or to the European Economic Area (EEA) as is. However it’s not just a question of continuing to shape tailor-made agreements, which are mostly static. Bilateralism as a concept needs to be redefined by putting institutional mechanisms in place which are destined to guarantee “the necessary homogeny for the parts of the interior market and policies of the EU in which Switzerland participates”.

Obligatory principles

Notably, Brussels wants the agreements to automatically adapt to the constantly evolving  European legislation as well as a uniform interpretation of these agreements. The Europeans also insist on an “independent mechanism for surveillance and execution of judicial decisions” as well as “a mechanism for dispute settlement”.

Across all its institutions, the EU now respects this doctrine to the letter. And the recent Swiss decision – viewed in Brussels as illegal – to re-establish immigration quotas for workers from Central and Eastern European countries which joined the EU in 2004, reinforced its conviction that a change is necessary.

“We must recognise that we have arrived at such a point where it becomes necessary to reinforce our common ambition and to take the next step,” European Commission President José Manuel Durão Barroso told recently.

“This renewal of our cooperation must be based on four obligatory principles,” defined in December 2010 by the 27 EU member states.

“Unambiguous prior agreement of these basic questions will allow us to conclude negotiations which have begun on certain important issues and to open others in the common interest,” Barosso said.

Worlds apart

Swiss lawyer Jean Russotto, who closely observes the evolution of the relationship between Switzerland and the EU, said “the message has certainly been heard, but not listened to”.

Confronted with the “frustration” of Switzerland’s European partners, Swiss Foreign Minister Didier Burkhalter on April 25 presented a series of ideas which are currently being evaluated by the cabinet and which will result in concrete proposals in June.

The hurdle is that Switzerland and the EU are not really reading from the same page: while  Switzerland develops its position along the immutable logic of preserving its national sovereignty (and refusing any automatic adoption of European law), Brussels is always thinking “European”.

“The dialogue has now crystallised into fundamentally divergent points which at first glance are irreconcilable in their current state,” said Russotto.

Accords, past and future

While the EU views the institutional question as an overarching priority, Switzerland prefers to integrate it as part of a “coordinated, global approach” to its relations with the European club of 27.

Put another way, institutional questions are, according to Bern, part of the “package” which equally includes sectorial accords in the process of negotiation (for example on energy), or others wanted by one or other of the partners (security of chemical products, taxation, etc).

Another stumbling block: where the EU wants to forge a “horizontal institutional context” for all its accords with Switzerland – past and future – which are linked to access to the interior market, Switzerland is only willing to discuss “future agreements” and wants the first one, governing energy, to act as a “model”.

The two approaches are equally divergent when it comes to the details. Brussels is demanding surveillance mechanisms to govern agreements and dispute settlement which would not only be “independent” of Swiss authorities, as demanded by the 27 EU states, but which would also be “supranational”.

Foreign adjudicator?

For Brussels, the solution is relatively simple: it’s a matter of following the example of the EEA, which unites the 27 EU countries with the three belonging to EFTA (Norway, Iceland, Liechtenstein). The EFTA countries in this context established their own surveillance authorities to ensure the proper application of the EEA agreement and their own court of justice, both supranational.

This approach “is legally viable, with a number of important adjustments. Politically, it is very delicate for Switzerland,” notes Russotto.

Switzerland’s position is that, in effect, the EU has placed the bar way too high – especially as the country itself has not yet completely digested its “no” vote to joining the EEA in December 1992, and particularly as the image of Europe is currently in tatters.

In short, there is no question of letting “foreign judges” meddle in the affairs of Switzerland.

EU demands

For the past four years, the EU has been pushing harder and harder for the Swiss to automatically implement changes to European legislation.

Brussels has also demanded that the surveillance of bilateral accords be carried out by a common body and courts, stating that any new agreements would have to include these elements.

These demands collide with Swiss desires to remain a sovereign nation. But the Swiss exporters also want unfettered access to European markets.

In April, the Swiss government decided to take a step in the EU’s direction, but suggesting that any monitoring be carried by an independent Swiss body whose members would be chosen by parliament.

As to the implementation of changes to European legislation, any modification of Swiss laws would have to wait until after a possible nationwide vote.

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