Sectoral Bilateralism

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.