Switzerland-EU Bilateral Agreements, the Incorporation of EU Law and the Continuous Erosion of Democratic Rights

Abstract

Over the course of decades, Switzerland and the European Union (EU) have together developed a tight network of bilateral agreements.1 There are some 20 principal agreements, supplemented by over 100 secondary agreements, protocols, and exchanges of letters. These agreements have been drafted and entered into on the basis of specific Swiss and European needs and demands: windows of opportunity were utilized as and when they arose. They are not contained within a comprehensive and coherent system. In addition to the Free Trade Agreement of 1972 and the Insurance Agreement of 1989, the two sets of bilateral agreements of 1999 and 2004, the ‘Bilaterals I’ and the ‘Bilaterals II’, provide the basic legal framework for the Swiss-EU relationship: ... Various bilateral agreements go beyond inter-governmental cooperation and reciprocal market access in their scope and aim to further integrate Switzerland into the EU legal sphere, on a sectoral basis. Examples include the Agreement on the Free Movement of Persons of 1999 (AFMP), the Agreement on Air Transport of 1999 (AAT), and the Schengen/Dublin Association Agreements of 2004 (SAA, DAA). These agreements enable Switzerland to ‘dock on’ to EU law: they refer to EU acts, thereby incorporating them into the bilateral acquis. Switzerland is then obliged to apply these acts or (at least on paper) equivalent rules vis-à-vis the EU and its member states. Equally, the EU and its member states are obliged to apply these acts vis-à-vis Switzerland. Clearly, then, any relevant further developments to such acts within the EU must also be incorporated into the bilateral agreements, to ensure that the good functioning of the agreements continues unencumbered