© Springer International Publishing Switzerland 2015Christoph Herrmann, Bruno Simma and Rudolf Streinz (eds.)Trade Policy between Law, Diplomacy and ScholarshipEuropean Yearbook of International Economic Law10.1007/978-3-319-15690-3_17
The EEA in Perspective
Graduate Institute of International Studies, 1142 Geneva, Switzerland
The European Union and the Normative Multilateralism
Following the dramatic events of two world wars, the European Union (EU) was designed as a project for peace. In this respect, it has proved successful. It is, indeed, thanks to the EU and NATO that my generation and the generations that followed were never mobilised. Today’s situation is something that could only have been dreamt of by the generation of my father, who was born in 1895: these men lived through two world wars while in their prime. However, if Switzerland had been invaded during the last two wars, it would have become a founding member of the EU, the UN and NATO. As is frequently the case, people who find themselves in a fortunate position often forget their good fortune.
Since Switzerland was not involved in the Second World War, it regarded the EU, the UN and NATO as peace agreements or pacta inter alios facta—believing either rightly or wrongly that its own armed neutrality had saved it from two worlds wars. Consequently, Switzerland took the view that it had no reason to join with former warring nations in defining a new world order. The attitude adopted by Switzerland contains some truth—and possibly also an element of myth.
Switzerland has closely observed the building of Europe—never entirely ruling out the possibly of accession—but seeking first to find a middle way between isolation and membership. This reflected the fact that the European Economic Community was regarded by the USSR as an economic arm of NATO in Europe—creating problems in terms of neutrality. The Swiss Federal Council had nevertheless always wanted to see the establishment of a strong and united community, this for security reasons. Furthermore, it believed that only a strong community is capable of negotiating and making concessions. Consequently, the Swiss Federal Council did not, in any way, hope that the building of the European Economic Community would fail.
It was with this in mind that the then Federal Councillors Max Petitpierre, Hans Schaffner and Friedrich Traugott Wahlen, State Secretary Paul Jolles, Ambassador Pierre Languetin and their successors defined Switzerland’s policy on Europe. It consisted firstly of the founding of EFTA,1 then the Free Trade Agreement of 1972,2 and then the second generation treaties of 1973–1986,3 leading to the European Economic Area (EEA)4 and the Bilateral Agreements I5 and II.6 It should be mentioned in passing that Switzerland had concluded dozens of treaties with the EU before EEA membership was rejected.7
What is the EEA? The Free Trade Agreement of 19728 allows for the free cross-border movement of industrial goods between the two parties to the agreement, provided the goods originated in the territory of those two parties. As a result, it is possible to send a medicine from Switzerland to a member country without being subject to customs duties or quantitative restrictions. However, free trade is not the same as free commercialisation. To achieve this, it is necessary for an EU Member State to recognize—on a reciprocal basis—the Swiss procedures for the registration of that medicine. The same principle applies to the professions: A Swiss doctor can automatically cross the border to go for dinner in an EU-country but is not permitted to open a surgery there in order to sell his expertise. For this to be possible, it is necessary to have a harmonised system or the mutual recognition of medical qualifications. This is the aim of the internal market and the EEA.
In other words: in terms of the four freedoms—free movement of goods, services, persons (freedom of establishment) and capital—Union citizens and the Swiss would have equal rights in the EU market and the Swiss market. This would be the aim of the EEA. It would represent the continuation and the successful implementation of the Free Trade Agreement.
The rejection of EEA membership on 6 December 19929 cost us dearly. I could cite numerous examples of this—from the lack of growth during the 1990s and the Swissair debacle to the noise pollution caused by aircraft flying over Zurich, to name but a few. Because the Swiss public barely reads the texts presented to it before casting its votes, it prefers to succumb to emotion—and everyone knows that emotion is not a good basis for objective decision-making. Furthermore, the Swiss public has a short memory. The EEA, which was 20 years ahead of its time, is today no longer known by people, now that it has reappeared in the public debate.
The main responsibility for the rejection of EEA membership did not, incidentally, lie with Swiss National Councillor Christoph Blocher but with the Swiss Federal Council. Following the final round of negotiations, it announced to the Swiss public—at 3.00 a.m. (!) while abroad (!) and from the press room of the European Commission in Luxembourg (!)—that going forward, Switzerland’s policy on Europe would be focused on accession to the EU.10 Since then, the nation has been divided. Most of the people who were responsible for that decision are either deceased or have long since retired from politics.
Instead of taking up the idea of EEA membership again and putting it to a second public vote in Switzerland 2 years later, the Swiss Federal Council decided to pursue the bilateral approach that was to prove effective in the 1970s and 1980s. In other words: the Swiss Federal Council wanted Switzerland to be able to participate in the internal market through the Bilateral Agreements. This option is, in itself, justifiable provided the negotiators don’t regard it as a precursor to EU membership. When you see the way in which Switzerland’s national highways and the Gotthard Tunnel have been opened up to the EU without Switzerland gaining anything in return, however, you start to ask questions… The slogan “Membership as a strategic goal” was an unpleasant blend of the end and the means—as is so often the case in Switzerland—and was therefore a non-starter. In the end, the Swiss public finally accepted the Bilateral Agreements I and II—and did so with a combination of misgivings and economic hope.
The Bilateral Agreements are—to a large extent—chapters of the EEA Agreement (with the exception of the Schengen/Dublin Agreement, for example, or the accord on combating customs fraud). However, by returning to these chapters, the negotiators left aside the institutional provisions of the EEA Agreement because they were working on the assumption that Switzerland would become a member of the EU before the end of the century. Now that Switzerland has substantial access to the internal market (except in the case of services and part of the freedom of establishment) without being a member of either the EEA or the EU, the EU is calling for an institutional set-up that is equivalent to that of the EEA.11 The EU expects all those that want to operate in its territory to play by the rules. This is the condition that will apply to all future agreements governing access to the internal market. The EU has clearly stated and restated that without a solution to this problem, there will be no more bilateral agreements governing market access.12 This point needs to be considered.
Why? Internal market law is always evolving. It is amended very rapidly in response to the needs that arise as the market develops, as is EEA law. In other words: internal market law—i.e. Union law—is an “internal law between states” and is therefore flexible. In contrast, the Bilateral Agreements are derived from public international law and are therefore static. Each amendment that is made to them is subject to ratification or approval processes. The Swiss Federal Council is trying to find a bilateral solution to this problem. However, those people who experienced the EEA negotiations first hand know that there are a limited number of options.