European Court of Justice – “We cannot escape the pull of EU law” – News

What is the price for participation in the European internal market? This is the fundamental question that arises in the Federal Council’s new negotiating mandate for talks with the EU. European lawyer Matthias Oesch classifies what would actually change with the negotiating principles presented.

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Matthias Oesch is a lawyer and professor of public law, European law and international law at the University of Zurich. One of his research focuses is the bilateral relationship between Switzerland and the EU. Previously, he was Legal Counsel at the State Secretariat for Economic Affairs.

How strongly is Switzerland already influenced by European law?

In my opinion, definitely more than we realize. Be it through EU law in general or through judgments of the European Court of Justice (ECJ) in particular.

There are areas of law in which Switzerland voluntarily adopts European law. Why are we doing this?

Even though Switzerland is not a member of the EU, we cannot completely escape the pull of EU law. With this autonomous tracking, Switzerland is trying to minimize the disadvantages of being a non-EU member in the internal market.

An EU flag flies in front of the Federal Palace


The European lawyer is convinced that Switzerland cannot completely escape EU law.


How would the role of the ECJ change if the current negotiating mandate between Switzerland and the EU were adopted as presented?

If Switzerland and the EU do not agree on the interpretation of a bilateral agreement, attempts will be made politically to find an amicable solution. There is currently no possibility of going to court.

So the ECJ will be important if Switzerland and the EU cannot reach an agreement in the future?

Exactly. If a dispute cannot be resolved through political means, both parties have the option of requesting the appointment of an arbitration tribunal. This is made up of independent people from Switzerland and the EU. An arbitration tribunal is nothing new; what would be new is that the ECJ would come into play when interpreting EU law. Because some bilateral contracts are based on EU law. The interpretation of EU law by the ECJ is then decisive for the decision of the arbitration tribunal.

Critical voices believe it makes no sense to allow the opposing party to choose a court in the event of a dispute.

This is in fact the main objection. This supports the narrative of the foreign judges. In my opinion this objection is pointless. Of course, institutionally, the ECJ is the court of the opposing side. But in this specific situation, the ECJ is the court of the internal market, in which Switzerland participates sectorally and of its own free will.

Another controversial point in the current negotiating mandate is dynamic legal adoption. What does this mean specifically for Switzerland?

Switzerland is already familiar with the system of dynamic legal transfer from the Schengen/Dublin agreements. Since 2004, 380 legal acts have been adopted in this way; three of them came before the Swiss electorate. In my view, dynamic legal adoption is the real core of the planned institutional reorganization. Switzerland is thus taking a qualitatively significant step towards integration into EU law, as Switzerland will be integrated into the EU internal market almost like a member state. Dynamic legal adoption is the price that Switzerland has to pay for sectoral participation in the internal market without becoming a full member of the EU.

The interview was conducted by Simone Hulliger and assisted by Géraldine Jäggi.

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