Institutional and legal issues – autonomous adoption of EU law (acquis)

Switzerland / EU flags
Switzerland / EU flags © FDFA, Presence Switzerland

Switzerland and the EU have concluded around 120 bilateral agreements, 20 of which are considered of central importance, such as the agreement on the free movement of persons. On the one hand, these agreements create wide-ranging mutual access to markets; on the other, they provide the basis for close cooperation in important policy areas such as research, security, environment and culture. The agreements governing market access are as a rule based on existing EU law in which Switzerland has undertaken to enact equivalent provisions or to adopt existing EU law. The five existing market access agreements are: free movement of persons, civil aviation, overland transport, agriculture and technical barriers to trade (TBT).

Institutional issues concern the following four areas:

  • Legal developments: What procedures should be employed to adjust agreements to new legal developments in the EU «Acquis» that concern them?
  • Supervision: How can a consistent supervision of the application of the bilateral agreements be ensured?
  • Interpretation: How can the consistent interpretation of the bilateral agreements be ensured?
  • Dispute settlement: What procedures should be used to settle disputes between Switzerland and the EU, and what body should be vested with decision-making powers in disputes between the two parties?

The goal of the institutional agreement is to create a framework that allows a more homogenous and efficient implementation of existing and future market access agreements. The Federal Council adopted a negotiating mandate on 18 December 2013; the Council of the EU adopted its mandate on 6 May 2014. Since the beginning of the negotiations in 2014 until end of December 2018, around 30 rounds of negotiations between Switzerland and the EU have taken place. The objective of the agreement is to guarantee legal security in the area of market access and to preserve Switzerland’s independence and legal order. On 2 March 2018, the Federal Council has specified the negotiating mandate in order to find an agreement with the EU for the dispute settlement based on an independent arbitration solution. On 7 December 2018, the Federal Council took note of the end of negotiations and the draft institutional agreement. Beginning of 2019 consultations on the draft agreement with the concerned parties have been launched to allow an in-depth analysis of the political interests with regard to a possible signature of the agreement. Concerning the negociations, two points remain particularly sensitive: the accompanying measures of the free movement of persons and the EU’s Citizens' Rights Directive