8 March 2013. In the EU, it is the Commission that has to monitor whether the member states comply with the various treaties. The European Court of Justice (ECJ) exercises the judicial checks. The organs that are parallel with the Commission and the ECJ in the European Economic Area (EEA) are the EFTA Surveillance Authority and the EFTA Court. In bilateralism, Switzerland is theoretically free to enter into a system competition with the EU. However, this freedom is limited by the bilateral agreements.

A long tradition of mediation
Switzerland has a long tradition of negotiation and mediation. At an international level, the negotiation approach manifests itself in a predilection for mixed committees in which diplomats and representatives of industry and associations meet behind closed doors.

In 2008, the EU made four demands, which were confirmed in 2010 and 2012: (1) accelerated adoption of EU law, (2) adoption of EU jurisdiction, (3) surveillance and (4) judicial checks. (3) and (4) are institutional demands. Without institutions, the EU does not want to conclude any new treaties. The Federal Council’s proposal to create a Swiss surveillance authority under the control of the Swiss Federal Court was rejected in December 2012.

Further negotiations not an option
Considerations of presenting the EU with a modified proposal concerning a mixed surveillance authority in which EU representatives would be members would not solve the homogeneity problem. Docking on to the ESA and the EFTA Court would be technically possible although it would lead to problems. A solution with a court of arbitration is unlikely to be compatible with European law.

Continued negotiations until the time is ripe for accession to the EU are not an option. The problems must be seen in their entirety: a lack of the free movement of services, of freedom of establishment and of the free movement of capital; a weak competition law; the imperfection of the Swiss domestic market; heterenomy with regard to the Schengen and Lugano treaties; a threatening marginalisation in patent law and the inconvenience of autonomous re-enactment.

An EEA II will also have to be considered. The issue of participation in decision-making should be raised. In material terms, there may be a certain amount of leeway in energy and environmental policy. The prerequisite, however, is a solution to the institutional question.

Photo: Photocase / Marqs