Submitting itself to the EU’s top court would turn Switzerland into a semi-colony

By
BrusselsReport.eu
-

By Prof. Dr. Dr. h.c. Carl Baudenbacher, former President of the EFTA Court (2003-2017) 

A proposal foresees the EU’s top court obtaining a monopoly on the interpretation of bilateral agreements between Switzerland and the EU, thus becoming an extraterritorial court of last instance. By agreeing to this, the Swiss government effectively wants to turn Switzerland into a semi-colony of the EU, as it employs a web of lies to get there.

The upcoming staging of the already predetermined agreements between Switzerland and the EU with the current Swiss President Viola Amherd and the President of the European Commission, Dr. Ursula von der Leyen, cannot hide the fact that the treaty package is based on nothing but untruths.

It all started in 2013, when Swiss Federal Department of Foreign Affairs (“FDFA”) State Secretary Yves Rossier untruthfully claimed that the Court of Justice of the European Union (“CJEU”), which under the dispute settlement model desired by the Federal Council was to have a monopoly on the interpretation of the bilateral agreements, would only issue non-binding “advisory opinions”. Although the then CJEU President Vassilios Skouris and his successor Koen Lenaerts stated very clearly that the CJEU only renders binding judgments, Rossier and his superior, Swiss Federal Councillor Didier Burkhalter, relentlessly repeated the lie of an “advisory opinion”.

From 2015 onwards, it became increasingly clear that the model with the CJEU would have no chance in a referendum. Swiss Senator Karin Keller-Sutter (today the Swiss Minister of Finance) rejected it outright. The FDFA was at a loss, but Jean-Claude Juncker, then President of the EU Commission, knew what to do: he proposed the establishment of a pro forma “arbitration tribunal” to be interposed before the CJEU, which would of course have to request a binding interpretation judgment from the CJEU in all important cases. It was the model of the EU’s association agreements with the former Soviet republics of Armenia, Georgia, Moldova and Ukraine, which Brussels also intends to apply to the former colonies of European powers in North Africa. Burkhalter threw in the towel; Rossier had already been sent into the wilderness.

However, the new duo at the head of the Swiss foreign ministry FDFA, Federal Councillor Ignazio Cassis and State Secretary Roberto Balzaretti, continued the policy of fake news. Now the saying was that the decisions would be made by the “arbitration tribunal” and the CJEU would issue “advisory opinions”. Cassis made it clear from time to time that he was not happy about the foul play, but in the end, he submissively followed the wishes of the export industry and praised the “arbitration tribunal”. However, he only did so half-heartedly.

After Balzaretti was dismissed in October 2020, the sottise with the “advisory opinions” of the CJEU was not repeated. But that was no longer necessary, because the intended deception of large sections of the public had long since occurred. There is a clear parallel here with the law of unfair competition. There, anyone who deceives by means of untrue advertising must eliminate the market confusion caused. Of course, nothing of the kind was done at the FDFA.

In an obvious reference to the lie of the CJEU as an “advisor”, it is now being done as if the “arbitration tribunal” would play the main role and the EU’s top court (CJEU) – after the US Supreme Court the second most powerful court in the world! – would play the role of a henchman. In doing so, the supporters of the package make use of the cheapest semantic tricks. They do not say that the “arbitration tribunal” is legally obliged to submit the matter to the CJEU, but rather that it will “draw on the CJEU” depending on the factual and legal situation, or that it will “consult” the CJEU’s “view” alongside other elements. The latter implies that nobody could prevent the “arbitration tribunal” from deviating from the CJEU’s judgment. The binding verdict of the CJEU is referred to as “feedback”.

Alternatively, the fact that in most cases the CJEU must be asked for a judgment that is to be followed by the “arbitration tribunal” without ifs and buts is left out altogether. Here, Plato’s saying that leaving out the other half of the truth is the worst form of lying should be remembered.

It is therefore not surprising that non-experts in politics, business and certain media have begun to ramble about the “arbitration tribunal” as an equal dialogue partner of the CJEU.

From the fact that the “arbitration tribunal” has the last word in terms of time, it is concluded that it also has this privilege in terms of substance. This is grotesque. A cantonal court whose decision has been set aside by the Federal Supreme Court and sent back for reassessment in the light of the considerations also has the last word in terms of time. Nevertheless, no one has yet produced the idea that it also has the upper hand in substantive terms.

The systematic suppression of the fact that the pro forma “arbitration court” is not described by any independent top lawyer from an EU or EEA/EFTA state as anything other than a means of camouflaging the transfer of sovereignty to the EU also falls under the topic of “omitting the other half of the truth”.

Furthermore, the Swiss Government also deliberately lies on the question of who would supervise Switzerland. All official FDFA documents state that a “two-pillar” model will be established in which Switzerland will monitor itself. But in fact, the European Commission, which could bring Switzerland before its own court of justice at any time and unilaterally (i.e., without Switzerland’s consent) via the pro forma “arbitration tribunal”, would be the supervisor of Switzerland.

The next lie is the contention that the alleged “two-pillar model” would mean that the Swiss Federal Supreme Court would be responsible for interpreting Swiss law, while the CJEU would interpret single market law. The truth is that the CJEU would also have the monopoly on interpreting the bilateral agreements and would thus become an extraterritorial court of Switzerland. The FDFA’s claim that the Federal Supreme Court’s authority would not be affected is a further lie. The European Commission could in fact unilaterally refer a judgment of the Federal Supreme Court to the CJEU at any time via the pro forma “arbitration tribunal”. This would make the Federal Supreme Court a second-class court in its own country, which would violate the Swiss Federal Constitution.

The EU itself wants to force the conclusion of this unequal treaty with discrimination and threats. In doing so, it contradicts all its own values, in particular (but not only) the principle of the independence of the judiciary. The EU is abusing the law.

The Federal Council and the federal administration have already made a name for themselves in dealing with the truth about COVID. With the EU treaty package, an absolute low has been reached. If this botch is adopted, Switzerland will institutionally sink to the level of developing and emerging countries. The crucial difference then is that these states receive enormous financial aid from the EU, while the people of William Tell, for their relegation to the league of helots, are supposed to make lavish payments to the Spartans.

In conclusion, it must be stated that the Swiss federal government in Bern wants to turn the country into a semi-colony of the EU by constructing a web of lies. They are deliberately and dishonestly trying to take advantage of the good reputation that genuine arbitration courts have in this country.

P.S. Weltwoche of August 14, 2024, reports that when asked whether such a packager of agreements with the EU is needed, Mr. Rossier said, “Not really” (ausgabe_2024-33_F33A298C0E4A45511BBE76C05068B048A3163981.pdf).

 

Prof. Dr. iur. Dr. rer. pol. h.c. Carl Baudenbacher is a partner in a Swiss-Norwegian law firm, Visiting Professor LSE, President of the EFTA Court 2003-2017. A first version of this article was originally published in German on Insideparadeplatz.

Disclaimer: www.BrusselsReport.eu will under no circumstance be held legally responsible or liable for the content of any article appearing on the website, as only the author of an article is legally responsible for that, also in accordance with the terms of use.

RELATED ARTICLESMORE FROM AUTHOR