Zurich professor advocates Switzerland’s accession to the EU

Zurich law professor Matthias Oesch believes that the ongoing adoption of European law is problematic. He sees a way out in joining the EU.

EU law also plays a major role for Switzerland as a third country.

Peter Klaunzer / Keystone

“Switzerland adopts the EU’s drone regulation and other legal provisions”. The November headline was just routine news. Switzerland repeatedly adopts EU law in a wide variety of areas. On a regular basis, as is the case with the Air Transport Agreement. Or with the autonomous implementation if there are no bilateral agreements with Brussels. According to studies, up to 60 percent of federal law is directly or indirectly significantly influenced by EU law. Switzerland follows suit without having a say in the elaboration.

Zurich law professor Matthias Oesch believes that the ongoing adoption of EU law is problematic in terms of democratic politics. It is true that the content of an adjustment is more relevant than the number of legal adoptions. Device standards are less politically sensitive than the EU Citizens’ Directive, which regulates when EU citizens have access to the welfare state. But Oesch and his co-author David Campi come to an explosive conclusion in their new book (“Switzerland’s accession to the EU”, EIZ Publishing): “Switzerland has actually delegated legislation in relevant areas to the EU.”

voters under pressure

Oesch also refers to changed framework conditions for direct democracy. In recent years, the electorate has decided several times on further developments of the Schengen Agreement with Brussels (Frontex, weapons directive, biometric passport). The Federal Council, Parliament and the people are under pressure to wave EU regulations and directives through, says Oesch in an interview. In fact, the referendums were not just about political issues, but also about the continuation of Schengen. “There are more and more situations in which Switzerland cannot help but say yes to a European policy proposal,” Oesch states.

The system of bilateral agreements leads to tensions because Switzerland, as a non-member, is partially involved in European integration. In addition, the understanding for the special path in European policy – once intended as an interim solution – has decreased. Since 2008, the EU no longer sees the status quo with market access agreements without institutions as a viable option. Since Brexit, she has increasingly insisted that there should only be access to the internal market if there are institutional rules of the game. “The EU is likely to be even more resolute and protectionist towards third countries in the next few years,” says Oesch.

Matthew Oesch

These developments make it necessary for Oesch to examine alternatives. Reverting the bilateral agreements to a free trade agreement or joining the EEA is hardly worth striving for. The expert on European law advocates moving forward – “away from the practice of just following legal developments as a passive member in piecemeal fashion”. Joining the EU makes it possible to actively shape European politics and take on responsibility, he says. Switzerland is not in a position to tackle major challenges such as climate change, the energy crisis or security on its own. Their fate is inevitably linked to that of their neighbors and other countries.

Oesch and Campi come to the conclusion that, politically and economically, Switzerland would in principle be able to join. However, the need for adjustment would be considerable, namely in competition law, liberalization of the railway and energy sectors, value added tax or monetary and exchange rate policy. At the institutional level, the Federal Presidency would have to be strengthened and the Federal Council enlarged in order to get involved in the EU bodies.

EU accession would also further exacerbate the tension between direct democracy and European integration. This is the price to pay if Switzerland wants to benefit from the advantages of EU membership and actively help shape the further development of the law, says Oesch.

Unrealistic SP requirement

The law professor and his co-author also examined whether exceptions would be conceivable in the event of EU accession. As is well known, the SP has combined its long-term goal of joining the EU with wage protection that is as autonomous as possible. Oesch considers such demands unrealistic. The analysis of accession practice shows that there have been no relevant exceptions in the long run. And when there were exceptions, these were primarily political sidelines: The EU member states granted Sweden a special regulation for the sale of snus.

Whether Switzerland could join the EU is a question that is primarily academically interesting. Because official Switzerland does not want this. The Federal Council downgraded EU accession in 2006 from a goal to one option among others – and withdrew the application in 2016. Apart from the SP, hardly anyone is calling for membership anymore. The Federal Council’s most recent report on Europe deals briefly with this pro forma. What makes Oesch now play through the most unrealistic European policy option? For about 20 years there have been hardly any treatises on EU accession, says Oesch. Switzerland would be well advised to study this option without prejudice.

The wish will hardly come true in the foreseeable future. However, Oesch and his co-author question the political self-image of Switzerland, which likes to present itself as more sovereign than it actually is.

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