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Abstract
This chapter examines the Agreement on the free movement of persons (AFMP) between the EU and Switzerland. After a discussion on the AFMP’s unique political and legal framework, the chapter focuses on two aspects of the integration of EU acquis on the free movement of persons after the signature of the AFMP: on the one hand, the (almost) complete integration of the EU social security coordination rules in Annex II and, on the other hand, the lack of integration of the EU Citizens’ Rights Directive 2004/38 into the acquis of the AFMP. Particular attention is devoted to the social security rights of frontier workers and access to social assistance for job-seekers. The aim is to understand, through these case studies, why the AFMP continues to be a contentious piece of the integration process between the EU and Switzerland.
Abstract
The present chapter discusses the specific cooperation between the EU and the Swiss Confederation in the CFSP terrain. It examines the many areas where the two parties have collaborated, and gleans some insight into the variety of instruments and specific modalities of this cooperation, as compared to the arrangements the EU has elaborated with other European States. The chapter also explores (legal) avenues for possible expansion of the CFSP cooperation between the two (difficult) partners, particularly in view of the EU’s development of its foreign policy, security and defence policies since the entry into force of the Treaty of Lisbon, and against the backdrop of the Russian invasion of Ukraine.
Abstract
Both Switzerland and the EEA EFTA States Iceland, Liechtenstein and Norway are non-EU Member States that are, nonetheless, closely linked to the EU and in particular its internal market. The present chapter focuses on the contributions which both Switzerland and the EEA EFTA States have paid to enhance cohesion within the EU. The chapter compares these cohesion payments from a historical and factual perspective, assesses the legal framework underlying the contributions and examines conditionality elements in this context, namely the practice of contributing States to make their payments conditional upon certain facts, be they adherence to common values or the state of relations with the EU. Overall, cohesion payments are marked by significant political room for action within the legal framework. The perspective on the relations with the EU of a contributing State seems to influence the use made of this room for action, with, e.g., Norway treating its contributions more as a part of an overall, durable integration structure, whereas Switzerland seems to perceive cohesion payments predominantly as a political bargaining chip in the relations with the EU.
Abstract
The EU has tried to play a meaningful role in dealing with the COVID-19 pandemic through common action in a number of fields. However, for the Union’s neighbours, such action may present challenges. Will they be included or left out? This question is particularly relevant for Switzerland, which is fully surrounded by States that are either members of the EU (Austria, France, Germany and Italy) or the European Economic Area Agreement, EEA (Liechtenstein). With Liechtenstein, Switzerland has particularly close ties, not least through the European Free Trade Association, EFTA (which also includes Iceland and Norway). Switzerland and Liechtenstein have cooperated particularly closely on COVID-19 matters. But what about cooperation with the EU? The chapter discusses examples of common EU action in the context of COVID-19 with a view to their legal effects in relation to Switzerland. The examples chosen relate to the availability of supplies and equipment, more specifically: EU export control measures and joint procurement, and to the movement of persons, more specifically: the EU’s traffic light system and the Digital COVID Certificate. There are two guiding questions: First, is Switzerland treated in the same manner as, or different from, its fellow EFTA members, who, different from Switzerland, are also members of the EEA (hence: “EEA EFTA states”)? Second, has the existence, or the lack, of an Swiss-EU agreement, as the case may be, in the field in question been of relevance?
Abstract
The Swiss Federal Council suggests a sectoral approach to reforming the “voie bilatérale” (the “bilateral path”) between the two partners, an approach formerly discarded by the negotiators. The author proposes to start the negotiating process with an ambitious deep and comprehensive FTA (SEUFTA) which would also provide for the dynamic alignment with EU rules and guarantee market access for Swiss products. The author opines that a successful first package dealing comprehensively with trade in goods, and possibly services would have a fair chance of success. With regard to dispute settlement, the author sees a window for adapting the current EEA law to allow the EFTA Court to be the addressee of referrals for clarifying EU law provisions, as the EFTA Court system has not only a flawless track record of ensuring parallelism with the CJEU’s jurisprudence, but is also under the ultimate control the European Court of Justice.
Abstract
Swiss law has always been influenced by foreign legal systems. With respect to EU law, the following two modes of influence stand at the forefront. First, Switzerland has entered into a variety of treaties with the EU which oblige it to adjust particular areas of its national law to the law of the EU. Second, Switzerland also regularly adopts EU law where there are no obligations under treaty law to do so. Swiss law is aligned with EU law, in a concept which in Switzerland often is referred to as “autonomous adaptation” or, in a more colloquial manner, “EU compatibility”. From the 1980s onwards, the minimisation of economic disadvantages, factual (inter-)dependencies in other areas, and sometimes sheer convenience have led to Swiss law being systematically modelled on EU law. Hence, the “Brussels effect” is also at work in Switzerland, and this is to a very considerable extent. The book chapter analyses the policy of autonomous adoption of EU law in Switzerland. It provides typical examples and discusses the impact on the law making-techniques in Switzerland. It examines three special cases in which Switzerland realistically has no other choice than to align Swiss law to EU law, namely the areas of data protection law, financial market law and COVID-19-related matters. It explains why the Cassis de Dijon principle, which Switzerland unilaterally introduced in 2010 for products originating in the EEA, goes beyond the classical elements of the policy of autonomous adaptation. Lastly, a special focus lies on the ongoing project of autonomously reviewing Swiss legislation in the ambit of the bilateral agreements; this is a project initiated by the Swiss Federal Government, following the termination of the negotiations with the EU regarding an Institutional Agreement in spring 2021.
Abstract
In recent decades, few initiatives have changed the tax world and the relationship between financial service providers and their clients more than increasing transparency. Switzerland, still the largest offshore location in the banking and financial services sector, was and is particularly affected by these developments. The banks are caught between legally anchored bank-client confidentiality and the obligation to provide client data and account movements to foreign tax authorities if such clients are domiciled abroad. Such obligations are regulated by international treaties and directly shape Switzerland’s relationship with its foreign partner countries. After a general introduction to the topic of bank-client confidentiality, the following article examines the development of transparency initiatives internationally and in Switzerland, starting with the Qualified Intermediary (QI) system in 2001, the EU taxation of savings income and the final withholding tax, and culminating in the automatic exchange of information, the OECD Base Erosion and Profit Shifting (BEPS) initiative and the EU initiatives on mutual administrative assistance. The authors present the historical development of the initiatives and provide an overview of how they work.
Abstract
This chapter discusses the specific features of the EU-Swiss model of sectoral bilateralism. It proceeds from an analysis of the relevant case law of the Court of Justice of the European Union (CJEU). In the absence of an institutional agreement providing for the homogenous interpretation of shared legal rules, the CJEU proceeds from the so-called Polydor logic, which implies that there is no automatic interpretation by analogy of identically worded provisions included in a bilateral agreement with Switzerland and the EU Treaties unless there are express provisions to that effect in the agreement itself. The consequences of this approach are illustrated with respect to the CJEU case law regarding the interpretation and application of the Agreement on Free Movement of Persons (AFMP) and the agreements associating Switzerland to the EU’s Schengen and Dublin acquis. The former entails a ‘static’ approach to the incorporation of new EU legislation, implying that there is no obligation to incorporate new EU acquis, whereas the latter agreements are ‘dynamic’ in nature, including a procedure for the incorporation of new EU legislation. In comparing both sets of agreements and the relevant case law of the CJEU, this chapter illustrates the law and practice of sectoral bilateralism and the specific challenges of Switzerland’s unique model of cooperation with the EU.
Abstract
This contribution tries to explain the exceptional decision by the Swiss Federal Council to reject the Institutional Agreement (InstA). The first part reviews the motivations of the seven Federal Councillors and the pressures to which they were subjected, even from political forces that are not far-right nationalist or traditional Eurosceptics. The second part highlights the radical nature of the decision to reject the InstA, given that the agreement had been relatively well negotiated by Switzerland, the EU had made substantial concessions and had not been particularly intransigent, the last remaining obstacles seemed to have been exaggerated and could have been overcome by domestic measures in Switzerland and, finally, the harmful consequences of a rejection of the InstA were well known.