«MARKET ACCESS» WTI, Berne 26 October Prager Dreifuss AG Zürich, Bern, Brüssel
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1 «MARKET ACCESS» Prager Dreifuss AG Zürich, Bern, Brüssel Mühlebachstrasse 6 CH-8008 Zürich Tel: Fax: Schweizerhof-Passage 7 CH-3001 Bern Tel: Fax: WTI, Berne 26 October 2018 Avenue Louise 235 B-1050 Bruxelles Tel: Fax:
2 «Je t aime - moi non plus»: Swiss Access to the EU Single Market: state of play and possible solutions between economic needs and political constraints Prof. Dr. Philipp Zurkinden, Prager Dreifuss AG, Partner, University of Basel Prager Dreifuss AG Zürich, Bern, Brüssel Mühlebachstrasse 6 CH-8008 Zürich Tel: Fax: Schweizerhof-Passage 7 CH-3001 Bern Tel: Fax: Avenue Louise 235 B-1050 Bruxelles Tel: Fax:
3 CONTENT I. RECENT HISTORY OF THE RELATIONSHIP CH EU II. CURRENT ISSUES III. STATUS QUO IV. SOLUTIONS 3
4 I. HISTORY FTA (EFTA 1960) INSURANCE-AGREEMENT GOODS TRANSPORT AGREEMENT - MAY 1992 REQUEST FOR MEMBERSHIP IN EEC - DECEMBER 1992: SWITZERLAND VOTES AGAINST EEA- MEMBERSHIP 4
5 I. HISTORY (continuation) BILATERAL AGREEMENTS I (incl. Guillottine clause) (FDFA website): 5
6 I. HISTORY (continuation) BILATERAL AGREEMENTS II (FDFA website): 6
7 I. HISTORY (continuation) - BILATERAL AGREEMENTS SINCE 2004 (FDFA website): 7
8 II. CURRENT ISSUES - SINCE 2008 NEGOTIATIONS ON INSTITUTIONAL FRAMEWORK AGREEMENT RED LINES IN NEGOTIATION MANDATE OF 18 DECEMBER NO AUTOMATIC ADOPTION OF EU LAW - ADEQUATE INVOLVEMENT IN EU LEGISLATION PROCEDURE (AT LEAST AS IN EEA) WITH REGARD TO EU LAW APPLICABLE IN CH - NO FOREIGN JUDGES, MIXED COMMITTEE/ARBITRATION COURT IN CASE OF UNPROPORTIONALE COMPENSATION MEASURES - NO EU UNION CITIZENSHIP - FLANKING MEASURES RELATED TO FREE MOVEMENT OF PERSONS 8
9 II. CURRENT ISSUES (contination) - AMENDMENT OF THE CH NEGOTIATION MANDATE IN STATE AIDS: 2 PILLAR SOLUTION AND NO BINDING SUBSTANTIVE RULES IN THE INSTITUTIONAL AGREEMENT - INDEPENDENT ARBITRATION COURT COMPETENT AFTER MIXED COMMITTEE FAILS - WITHOUT INSTITUTIONAL FRAMEWORK AGREEMENT NO FURTHER AGREEMENTS - PENDING NEGOTIATIONS ON NEW BILATERAL AGREEMENTS (FDFA website): 9
10 III. STATUS QUO - WE LIKE EACH OTHER 10
11 11
12 III. STATUS QUO (continuation) - BUT IT IS NOT REAL LOVE JUSTIFYING EVEN A PARTIAL MARRIAGE RATHER A BUSINESS AFFAIR - THE PARTNER OF THE EU IST NOT THE SWISS GOUVERNEMENT ALONE, IT IS THE SWISS POPULATION - A KISS IS NOT SUFFICIENT - RATHER CONCUBINAGE CONSIDERING - SOVEREIGNTY AND DEMOCRATIC CODETERMINATION OF SWISS POPULATION (FEDERAL VOTATIONS) - NO POLITICAL INTEGRATION - INTEGRATION INSOFAR AS IT COPES WITH DEMOCRATIC, SOCIO-ECONOMIC INTERESTS (INCL. EDUCATION, ENERGY, FINANCE, ENVIRONMENT, SECURITY, CULTURE ETC.) 12
13 IV. SOLUTIONS - EU AND CH HAVE DIFFERENT POLITICAL/DEMOCRATIC APPROCH - EEA - NO AUTOMATIC ADOPTION OF EU LAW (+) - NO FOREIGN JUDGES (+) - ADEQUETE INVOLVEMENT IN LEGISLATION PROCEDURE WITH REGARD TO EU LAW APPLICABLE IN CH (+) - NO UNION CITIZENSHIP (-) - FLANKING MEASURES RELATED TO FREE MOVEMENT OF PERSONS (-) (JUDGMENT OF EFTA COURT OF 10 MAY 2016 REGARDING PRIOR AUTHORISATION SCHEMES FOR UNDERTAKINGS WILLING TO ESTABLISH THEMSELVES/PROVIDE CRSS BORDER SERVICES IN FL) - STATE AIDS (-) 13
14 IV. SOLUTIONS (continuation) - EEA II? - CONSIDERATION OF DIRECT DEMOCRACY - PRIMARY FOCUS ON FIELDS MUTUALLY IMPROVING SOCIO-ECONOMIC SITUATION (INCL. ACCOMPANYING MEASURES, EDUCATION, SECURITY, CULTURE ETC.) - NO COMMON CITIZENSHIP - PARALLELS TO EFTA IN 1960 BUT UNDER THE CURRENT ECONOMIC AND POLITICAL CIRCUMSTANCES 14
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