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. 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 state subsidies.
The bilateral agreements are based either on the equivalence of legislation, as in the case of the agreement dismantling 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 in which 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 exchange, 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 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: overseeing the proper functioning of the agreements, and helping to further develop the existing Schengen/Dublin legislation. The joint committees meet at various levels to perform these two functions: at expert level, at the level of high-ranking officials, and finally at ministerial level.
The bilateral agreements can be amended only 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 other reasons such as an interest in equal standards in certain areas, e.g. 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, and Croatia on 1 July 2013, the bilateral agreements have been extended to include these new EU states. In adopting the body of EU law, these states also adopt the EU’s international agreements with third countries, including those with Switzerland. Extension of the bilateral agreements to new EU member states does not therefore entail renegotiation, with the exception of the Agreement on the Free Movement of Persons. This 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 entering into an institutional agreement (InstA), the Federal Council aims to consolidate Switzerland’s bilateral approach, specifically to ensure continued access to the single market and facilitate further development. In the context of the negotiations surrounding the institutional issues, since 2014 Switzerland and the EU have been setting out 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 EU Ministerial Council adopted its mandate on 6 May 2014. The two parties conducted negotiations from 22 May 2014 until 7 December 2018.
In its conclusions on relations between the EU and Switzerland, the Council of the European Union stated in February 2017 that an agreement regulating institutional matters would be necessary to continue to develop the bilateral approach. In its conclusions of 2012 and 2014, the Council had already emphasised that an institutional framework was a precondition to ensure the continuation of mutual market access. As long as there is no consensus between Switzerland and the EU on how to regulate their bilateral relations and the institutional issues surrounding the consolidation and further development of mutual market access, new market access agreements cannot be contemplated.