Switzerland and the EU – where to now?

More than two months after the Federal Council¡¯s decision to break off negotiations on the framework agreement, little has been heard about Switzerland¡¯s future relations with the European Union. Despite the EU Commission¡¯s decision to treat Switzerland as a non-associated third country in the EU funding programmes for research and innovation (see ETH News from 14 July 2021), almost no one is talking about what happens next.

This summer silence has now been broken by two ETH researchers. In a new contribution to the discussion, ETH professor Michael Amb¨¹hl and postdoc researcher Daniela Scherer from the Chair of Negotiation and Conflict Management highlight the options that are most likely to succeed from a negotiation theory perspective. ¡°We¡¯ve drawn up a three-stage plan for how the partnership between Switzerland and the EU could develop after negotiations were abandoned in May,¡± explains Amb¨¹hl.

Building trust through unilateral measures

The first stage would be to strengthen the mutual trust between Switzerland and the EU. The authors recommend that the Federal Council first intensifies its existing exchange with Brussels and the European capitals.

They also believe it would be beneficial for Parliament to release the enlargement contribution, fully extend the right to the free movement of persons with Croatia, and work more closely with the EU in pandemic management and climate protection. At this stage, says Scherer, everything would also have to be done ¡°to ensure that research collaboration can regain its rightful status¡±.

Clarifying the vision for European policy

In the second stage of Amb¨¹hl and Scherer's plan, the Federal Council would draw up a declaration, with the strongest possible domestic support, on how it aims to shape the bilateral partnership with the EU in the future. This would have to be approved by the Swiss Parliament in the form of a declaration or a planning resolution.

¡°The European policy vision supported by Parliament would reinforce the Federal Council¡¯s credibility with the EU and pave the way for further negotiations,¡± says Amb¨¹hl. It would express Switzerland¡¯s willingness to negotiate a new institutional arrangement for the bilateral approach as part of an overall package, taking into account the specificities of the non-member status of Switzerland.

Compiling a new negotiation package

In the third stage, Switzerland would reopen negotiations with the EU. In order to increase the basis for negotiation and thus facilitate a balance of interests between the two parties, a negotiation package would have to be as broad as possible. If negotiations for an ¡°umbrella agreement¡± necessary for inclusion in Horizon Europe have not been completed by then, this would have to be done here at the latest.

A core element of this five-part package, which the authors call ¡°Bilateral III¡±, focuses on the renegotiation of an institutional basis for selected existing and future market access agreements ¨C in addition to adaptation of existing agreements, the assurance of new agreements, an increase in the enlargement contribution and institutionalisation of a regular dialogue at the ministerial level. However, according to the authors, this basis would have to be distinct from the draft framework agreement in a number of respects.

Adoption of legislation without the ¡°super-guillotine¡±

Against this backdrop, Amb¨¹hl and Scherer recommend that Switzerland insist from the start on exceptions, or ¡°opt-outs¡±, in the dynamic adoption of legislation in areas of so-called vital interests, including salary protection, the Citizens¡¯ Rights Directive and state aid.

The authors suggest that dynamic alignment with EU law should not be governed by a separate treaty, as in the case of the framework agreement, but by a revision of the existing agreements. For Scherer and Amb¨¹hl, this would offer the advantage of avoiding an extension of the termination provisions already included in the existing agreements, the guillotine clause.

Dispute resolution without the European Court of Justice

Last but not least, Scherer and Amb¨¹hl also highlight an alternative that avoids the formal involvement of the European Court of Justice (ECJ) in dispute resolution. If Switzerland does not ratify a new EU law, the EU would be able to decide on rebalancing measures against Switzerland without first going to court. However, Switzerland would then be able to ask an independent arbitration court to examine whether the rebalancing measures taken are proportionate.

Domestically, this less judicial approach could potentially resolve a point of contention without curtailing the competence of the ECJ. A similar dispute settlement procedure is already in force between Switzerland and the EU, following the EU¡¯s approval of the Customs Security Treaty in 2009.

Political feasibility

But how realistic are these proposals? Both in dispute resolution and the adoption of legislation with exceptions as proposed by Amb¨¹hl and Scherer, the question arises as to why the EU should agree to this in the future when it is precisely what it has rejected so far. ¡°Because it¡¯s ultimately in its own interest,¡± explains Scherer. For the authors, the measures outlined at all three stages contain significant concessions towards the EU and thus a clear improvement of  the status quo in favour of  the EU.

It also remains to be seen whether a broad consensus can be reached within Switzerland in view of the political differences on the European question. But the authors are also less pessimistic about this issue than other commentators: a package that avoids an explicit role for the ECJ, does not extend the guillotine clause and allows exceptions in  areas of vital interests should meet with greater acceptance domestically, they say.