Legal and institutional framework

All of these agreements are based on a classic form of cooperation between governments, i.e. the conclusion of the agreements by the states parties did not involve the transfer of any legal or decision making authority to a supranational body (higher than the state). Each of the parties is responsible for implementing the agreements on its own sovereign territory. An exception is observance of the competition rules in the area of civil aviation, the supervision and implementation of which is in the hands of the European Commission and the Court of Justice of the EU, except in the case of subsidies.

The bilateral agreements are based either on the equivalence of legislation, as in the case of the dismantling of technical barriers to trade and the Agreement on public procurement markets, or on the (literal) adoption of the ‘Acquis communautaire’, as in the case of the Civil Aviation Agreement and Schengen/Dublin. The cooperation agreements regulate cooperation in the framework of EU programmes and agencies.

The agreements and their further development are administered by joint committees where both parties to the contract are represented with equal rights. They see to the proper functioning of the agreements and serve as platforms for information exchanges, for advice, as well as for mutual consultations. The parties also can turn to these committees when there are differences of opinion. In the joint committees the two parties must reach a unanimous decision. However, they have the power of decision only where expressly stated in the agreements. On the Swiss side, it is the Federal Council which has the power of decision, based on a delegation of responsibilities by Parliament. For instance, the joint committees can decide on changes in appendices to the agreements insofar as these are of a technical nature (e.g. lists of laws or authorities or products). Changes in the provisions of the agreements themselves and in particular the introduction of new obligations on the parties must be approved via the appropriate internal procedures of the parties.

The joint committees for the Schengen/Dublin Association Agreement are of a special kind in that they perform two different tasks: on the one hand they oversee the proper functioning of the agreements, and on the other hand they are involved in further developing existing Schengen/Dublin legislation. In the performance of these two functions the joint committees meet at various levels: at the level of experts, at the level of high-ranking officials, and finally at the ministerial level.

The bilateral agreements can only be amended with the joint agreement of the parties and are not subject to automatic amendment. Since the agreements are based on the equivalence of the laws on both sides, it is in the interest of both parties to maintain this equivalence when there are developments in the law. It is generally necessary to adopt developments of relevant EU law in order to guarantee equal competitive conditions (e.g. avoidance of technical barriers to trade). On top of this, there are reasons such as an interest in equal standards in areas such as security, health and the environment. Procedures for information exchange and consultation have been set up for cases where one of the parties plans to change certain legal requirements in the area of application of the agreements.

Following accession to the EU of ten new states on 1 May 2004, of Bulgaria and Romania on 1 January 2007 as well as of Croatia on 1 July 2013, the bilateral agreements have been extended to include these new EU states. In adopting the EU body of law, these states also adopt the EU’s international agreements with third countries, including those with Switzerland. The extension of the bilateral agreements to the new EU states thus comes about without renegotiation, with the exception of the Agreement on the free movement of persons, which is a ‘mixed agreement’, to which each member state is also a party in addition to the EU; the agreement thus has to be adapted to each new state party through additional negotiations.

In its 2017 conclusions on the relations between the EU and Switzerland, the Council of the EU stated that an agreement on institutional issues would be necessary for the further development of the bilateral approach. In its concluding remarks in 2012 and 2014 the Council of the EU had already indicated that future cooperation between the EU and Switzerland would require an institutional framework.

In the context of the negotiations on institutional issues that have been ongoing since 2014, Switzerland and the EU are in the process of defining mechanisms to ensure that the agreements on market access are applied more consistently and efficiently now and in the future. The Federal Council adopted the negotiating mandate for institutional issues on 18 December 2013; the Council of the EU adopted its mandate on 6 May 2014. The two parties started negotiations on 22 May 2014. With an agreement on institutional issues, the Federal Council aims to safeguard and further develop the bilateral approach and facilitate the conclusion of new market access agreements with the EU.