Prof. Dr. iur. Dr. rer. pol. h.c. Carl Baudenbacher, former President of the EFTA Court (2003-2017), Partner Baudenbacher Kvernberg, Zurich/Oslo/Stavanger/Brussels, Visiting Professor at the LSE, discusses the latest developments surrounding the relationship between the EU and Switzerland.
On 18 March this year, Switzerland and the European Union (EU) officially opened negotiations to update five existing agreements, draw up two new ones and make Switzerland’s contribution to the EU more permanent. The aim is to develop and stabilise relations between Switzerland and the EU. So much for the official “wording”.
One of the ‘hot points’ of this draft framework agreement, which we will call the ‘EU-Switzerland Institutional Agreement 2.0’, is the settlement of disputes by the EU Court of Justice, the jurisdiction of the opposing party.
Admittedly, an “arbitral tribunal” would formally intervene, but if necessary it would have to ask the CJEU to hand down a binding ruling. For Switzerland, the CJEU is an extraterritorial court.
EU adopts mandate for negotiations with Switzerland 'to modernising and deepen of relations'.
With reminder that EU expects 'dynamic regulatory alignment with EU law' and provisions on 'uniform interpretation and application' as part of package.https://t.co/pE7pU6kIS8 pic.twitter.com/jzUamneVFP
— David Phinnemore (@DPhinnemore) March 12, 2024
The “Ukraine mechanism”
The model of the “joint arbitral tribunal” and the CJEU comes from the EU’s existing and planned treaties with the so-called European neighbourhood countries. Such clauses are already in force with the post-Soviet republics of Armenia, Georgia, Moldova and Ukraine, emerging countries that are on a financial drip from the EU. In the literature, this is referred to as the “Ukraine mechanism”. This mechanism should also form part of the EU’s planned trade agreements with the countries of North Africa, including Tunisia, Morocco, Jordan and Egypt, all former colonies or protectorates of European powers.
The model advocated by the Swiss Federal Council involves the European Commission becoming Switzerland’s de facto supervisory authority. It would be able to bring complaints at any time before its own Court of Justice, the CJEU.
Disputes between Switzerland and the EU would be matters of public international law. The rhetoric about the goodwill of the CJEU, which Switzerland need not distrust, misses the point entirely. This is not a criticism of the CJEU; it is simply a fact resulting from the divergence of interests involved. In disputes concerning the interpretation of EU law or the law of agreements whose content is identical in substance to that of EU law, it will be the view of the Supreme Court of one of the two parties to the conflict, i.e. that of the EU, that will be binding on the arbitral tribunal. This is what is provided for in the negotiating mandate.
The EU is determined to ensnare Switzerland. A ‘cooperation agreement’ will transfer huge amounts of power from the national government to Brussels. This is an attack on Swiss democracy, writes Andrea Seamanhttps://t.co/osTNz5AbFp
— spiked (@spikedonline) March 25, 2024
An “unequal” treaty with colonial overtones
Recognition of the CJEU’s monopoly of interpretation would also make the “EU-Switzerland Institutional Agreement 2.0” an “unequal treaty”. This term was coined by the Chinesee nationalists and taken up by the communists to refer to the colonial treaties that the imperialist powers imposed on the defeated country after the Opium Wars (1839-1842 and 1856-1860). They obliged the Chinese to open up their ports and markets and grant concessions to the imperialist states.
One of the main features of these treaties was the creation of extraterritorial tribunals. British, American, Russian and Swiss actors could not be dragged before Chinese courts in civil or criminal cases. The consuls of their home countries and, in the case of the British and Americans, their own courts on Chinese soil, had jurisdiction over them.
It seems logical to draw a parallel and apply the notion of “unequal treaty” to the project under discussion between Switzerland and the EU. Unlike under the Chinese treaties, these would not just be cases of civil and criminal law, but conflicts of international law.
In 2017, the EU also proposed the “Ukraine model” to the UK. In debates in the venerable British Parliament, parallels were drawn with China’s “unequal treaties”. In the end, the UK rejected the “Ukraine mechanism” in the Trade and Cooperation Agreement, but had to swallow it in the Withdrawal Agreement, a time-limited treaty. Incidentally, I refused to chair this arbitration tribunal, which has no real power.
North African states sceptical about the proposed mechanisms
After many years, the North African states’ negotiations with the EU for deep and comprehensive trade agreements have still not reached a successful conclusion. The author of this article travelled to Rabat in the summer of 2019 as an expert for the Moroccan government and found even then that the prospect of submitting to the jurisdiction of the CJEU was not too appealing.
While Georgia, Moldova and Ukraine are candidate countries for EU membership and may agree on compromises, the North Africans have no prospect of accession. For them, recognising the CJEU’s monopoly on interpretation would be tantamount to judicial neo-colonisation.
All these explanations clearly show that the “Ukrainian mechanism” is totally unsuited to Switzerland. And yet, without giving any convincing justification, the Federal Council jumped on the bandwagon.
Originally published in French, by Le Temps.
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