Swiss exemptions from dynamic adoption of EU law are an illusion

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BrusselsReport.eu
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By Prof. Dr. Dr. h.c. Carl Baudenbacher, former President of the EFTA Court (2003-2017), Visiting Professor at the London School of Economics, Baudenbacher Law AG 

Switzerland’s subjugation to de facto supervision by the European Commission and the granting of a monopoly on interpretation to the European Court of Justice (ECJ) were decided by the Swiss government, or “Federal Council”, in August 2013. The decision of the Federal Council was based on incorrect information from the FDFA (‘Switzerland monitors itself’, ‘the ECJ merely prepares expert opinions’). The fact that, in normal cases, the ECJ treats Swiss citizens and companies in the same way as EU actors is irrelevant. The Federal Supreme Court (like any supreme court in a modern constitutional state) does the same in reverse.

Under the newly agreed Swiss-EU framework agreement, however, it would be a matter of conflicts under international law. Here, there are clear conflicts of interest between the contracting parties. Each party wants to win, and only one can win. If one party were allowed to bring in the referee, the game would be (as in football) a one-sided affair.

This supposedly ingenious ploy has allowed Switzerland to negotiate exceptions to the dynamic adoption of law and thus to the jurisdiction of the Commission and the ECJ. This is illusory for four reasons.

Firstly, the future cannot be built on exceptions. The German social law expert Ulrich Mückenberger wrote as early as 1971 that exceptions are a second-class reality. Anyone who wants to shape the future must deal with the rule, the main substance.

Secondly, according to the established case law of the ECJ, exceptions in EU law must be interpreted narrowly. Moreover, the EU Member States would critically scrutinise the way their institutions deal with the exceptions. Experience shows that the ECJ is reluctant to rule against the legal opinion of member states when a third country is involved.

Thirdly, Switzerland would not have the power to determine the scope of the exceptions itself. The court of the other side would determine how strong the anchor would be that would save Switzerland from the reach of that very court. A grotesque situation, the opposite of the much-vaunted legal certainty. Talk of the ‘safeguards’ that have been negotiated is therefore unrealistic.

Fourthly, exceptions are merely snapshots. In the future, completely different problems may arise, for example with regard to electricity, the free movement of persons or a possible services agreement. The ECJ engages in dynamic interpretation. Even in the case of international treaties, it is prepared to give priority to EU law.

The ‘vertical’ approach is just old wine in new bottles. One inadequacy is to be partially replaced by another. But we remain on the wrong track of institutional satellisation, and we do not even know whether the exceptions will take effect. This is tinkering. And tinkering has characterised the framework agreement project since 2013.

It is no coincidence that, with all its shortcomings, it was already on the brink of failure in 2014 (adoption of the mass immigration initiative), 2017/18 (intervention of the pro forma arbitration tribunal) and 2021 (interruption of negotiations).

Or as Friedrich Schiller put it: ‘This is the curse of an evil deed, that it incites and must bring forth more evil.”

 

Originally published in German by NZZ

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