Negotiations to establish an institutional framework agreement between Switzerland and the EU are set to reach a conclusion soon. In an interview, Prof. Michael Ambühl of ETH Zurich explains where the challenges of those negotiations lie.
Most of the older bilateral agreements are what we call “static” in nature. That means negotiations need to be conducted to amend these agreements whenever the EU’s acquis or, in other words, the accumulated body of European Union law, is revised. Given that the goal of these bilateral agreements is to achieve a level playing field for Swiss companies doing business in the European Union’s single market, it’s vital that revisions to the EU’s acquis don’t cause the gap between it and the bilateral agreements to widen, otherwise the playing field would be uneven again.
The institutional framework agreement also contains a stipulation governing how the application of the agreements is to be supervised and how a consistent interpretation can be ensured. Defining dispute settlement procedures is another key issue. How will disagreements between the EU and Switzerland be handled? International contracts frequently specify the use of a court of arbitration.
There are several conflicting priorities, both on the domestic policy front and with regard to foreign policy. Issues on the domestic policy front, for example, include dispute settlement procedures and accompanying measures. With regard to foreign policy, the EU is pushing for an arrangement to be reached on the framework agreement as soon as possible.
First of all, it’s important that Switzerland doesn’t pressure itself to get this settled quickly. The primary goal must be to negotiate a good agreement, even if that means the whole process takes a bit longer. Especially when it comes to the accompanying measures, the various players would benefit most from having enough time to tackle these issues calmly rather than having to reach decisions on a tight deadline that would have lasting implications.
With respect to dispute settlement, I worked together with my chair at ETH Zurich to come up with a solution proposal that calls for a court of arbitration, among other things. If the contracting parties are unable to find a solution in a Joint Committee, one of the parties can take proportionate rebalancing measures. If the other party takes issue with those measures, it can have the proportionality of the rebalancing measures reviewed by a court of arbitration. Not only would this solution not have any impact on the reach of the European Court of Justice, but it would also offer the advantage that the court of arbitration is not “under the control of” the European Court of Justice.
Brexit negotiations will likely make our own negotiations more difficult in the short term since the EU is hardly interested in making any concessions to Switzerland that could constitute a precedent for its negotiations with Great Britain. It’s looking like the EU would rather use our talks to show the UK where the limits lie. Over the long term, however, Brexit will probably tend to strengthen the standing of non-members, including that of Switzerland.
I think Switzerland will remain interested in cultivating a smoothly functioning, cooperative relationship with the EU based on these bilateral agreements. That means we have every interest in putting our relationship with the EU on a solid institutional foundation, in other words: a framework agreement.
Switzerland and the United Kingdom have been working for some time now on something they call the “Mind the Gap” strategy, which will govern their mutual rights and obligations after Brexit. As soon as the UK has left the EU, the bilateral agreements will no longer apply to relations between Switzerland and the United Kingdom. Plus, it would probably be a good idea to discuss our respective efforts toward integration into the EU’s single market.