Daniel Thürer, Gutachten über mögliche Formen der Umsetzung und Anwendung der Bilateralen Abkommen, erstattet an den schweizerischen Bundesrat am 7. Juli 2011, together with Prof. Thomas Burri. P. 1-43
[Legal opinion for the Swiss government on possible forms of transformation and application of Bilateral Treaties]
a) Background
The text at hand is a formal legal opinion written at the request of the Swiss government. The text has to be read in conjunction with the discussion document in form of a letter of the Executive Committee (Verwaltungskommission) of the Federal Tribunal of Switzerland to the Federal Council in the same matter 2.29, see also the text of Carl Baudenbacher 2.27.
The legal opinion can be characterised as follows: the origin of the need for an opinion is the alleged precondition of the European Union of solving certain institutional issues for the negotiations of further bilateral agreements based on the document Conclusions on EU relations with EFTA countries of the Council of EU, 14th December 2010 (17423/1/10). The document states that there is a lack of an efficient regulation on the taking over of the new acquis-de-droit-communitaire into Swiss law, including the following of jurisprudence of the European Court of Justice, as well as a lack of surveillance and enforcement of the existing treaties. The present two-pillar approach does not bring about the necessary homogeneity in those parts of the common market and those parts of EU policies in which Switzerland participates. According to the Council of the EU, this has led to legal insecurities for administrations, private actors in the economy and individual citizens.
The Federal Council’s mandate to opine requires the showing of potential institutional options for supervision and the enforcement of the direct application of the bilateral treaties between Switzerland and EU, in Switzerland and an assessment of these options, taking into account aspects of sovereignty and public law (including federalism and separation of powers), as well as in the light of the efficiency of the surveillance and of the realisation of the goals of the treaties. The author proposes to deal with the mandate in a larger context. The text is not a scientific article, the author says; therefore, only limited literature is cited. In part one on the status quo, a complete footnoted overview on the relevant court decisions in the EU and in Switzerland is included. The text is primarily technical insofar as it is necessary to answer the two questions. The text breathes an internationalist’s spirit and is deeply rooted in the historic experience of the unfolding of the principle of integration in the EU.
Daniel Thürer is an emerite professor (2010) of international law, European law and comparative constitutional law at the University of Zurich. He is a leading analyst and commentator of the developments in the legal relationship of the EU law and Swiss law. In the summer of 2011, he was mandated by the Swiss Federal Council to write a legal opinion on the opportunities and limitations of a further coordination and harmonization of Swiss law with EU or in connection with the next and crucial round of negotiations with the EU.
b) Summary
The text contains a detailed description of the status quo of the bilateral system between Switzerland and the European Union, written from a broader perspective. It recites the collective judgements of the European Court of Justice, as well as of Swiss Federal Tribunal, in more than a hundred cases. The text, moreover, describes the status quo of the parallel practice of surveillance and enforcement on the side of Switzerland and the EU with respect to the question of a central mechanism for surveillance of the bilateral treaties. Thürer comes to the conclusion that there is no way around the “two pillar-approach” leaving the task to steer between the scylla of status quo of a parallel application of law and the charybdis of the joint parallelism of application of law.
In that context, only a limited number of models may enter into play. They are described under the headings, Integration into the EEA/EFTA-system, Integration into the Swiss system and Structure of institutions aspired by the EFTA-system. The options proposed are benchmarked with aspects of law; the effects on federalism, the integration into the direct-democratic system of Switzerland and political issues of sovereignty.
Without raising the issue of full membership or of accession to EEA agreement, Thürer takes the opportunity to list his ideas on the strategic priorities in exploring an institutional “third way” regarding the structuring of bilateral agreements.
The opinion contains the following summary: the opinion purposes three approaches in order to further develop the bilateral system. In all three approaches special institutions are proposed on the Swiss side. On the EU side, the usual organs of the European Court of Justice and Commission of the EU remain competent. The proposals, therefore, follow the two-pillar structure described by the European Court of Justice.
The first approach proposed is the integration on the Swiss side of the bilateral system in the EEA/EFTA-order which is adapted to the interests and to the needs of Switzerland (1). The second approach proposed is the application and enforcement of the bilateral system to remain by and large within the Swiss legal system. A special organ (Umsetzungsstelle) is formed, which has an advisory function and which may appear in court proceedings. A special chamber of the Federal Tribunal is responsible for the traditional enforcement of the bilateral system in Switzerland. The third approach proposed is a solution between the first and the second approach, which would follow the example of the EEA/EFTA-institutions with a special organ (Umsetzungsstelle) and a judicial forum, which are responsible for the enforcement of the bilateral system in Switzerland. The difference to the second approach consists in a removing of the organs further away from the Swiss system. This leads above all to the introduction of a “Vorentscheidungsverfahren” (preliminary decision proceeding) in which the judicial forum decides on the interpretation of the bilateral system and the special organ (Umsetzungsstelle) and the judicial forum to a certain extent also examine the legal and constitutional behaviour of the institutions of Switzerland.
These three solutions have advantages and disadvantages, which are described in the opinion.
The negotiation position and negotiation strategy pursued in the process will decide on which of the three approaches will be chosen. In the meantime, it has become obvious that the Swiss proposals set forward so far do not meet the expectations of the EU. The respective negotiations presently are still going on.