The Binding Effect of EU Fundamental Rights for Switzerland

© Springer International Publishing Switzerland 2015
Norman Weiß and Jean-Marc Thouvenin (eds.)The Influence of Human Rights on International Law10.1007/978-3-319-12021-8_16

16. The Binding Effect of EU Fundamental Rights for Switzerland

Astrid Epiney  and Benedikt Pirker 

Fribourg University, Fribourg, Switzerland



Astrid Epiney


Benedikt Pirker (Corresponding author)

The present contribution is partly based on an earlier book contribution; see Epiney (2013b), pp. 141 ff.

16.1 Introduction

The relationship between the EU and Switzerland is determined nowadays by the so-called Bilateral Agreements. Having rejected by a clear majority of the Swiss cantons and a narrow majority of the Swiss people accession to the European Economic Area on December 6th 1992, Switzerland opted to follow what is often referred to as the ‘bilateral path’ to foster economic relations to the EU internal market. Switzerland’s strategy essentially consists thus of the conclusion of sectoral agreements with the EU and also of a simultaneous unilateral effort of adapting Swiss law autonomously to the ever-changing requirements of EU law, in particular but not limited to areas covered by the EU internal market.1

Two ‘packages’ of Bilateral Agreements between the EU and Switzerland can be distinguished. The first package was signed in June 1999 and entered into force collectively in 2002. These agreements cover the topics of free movement of persons, research, technical barriers to trade, agricultural products, land transport, air transport, and public procurement.2 The second package of agreements was signed in 2004 and entered into force separately during the subsequent years. These agreements cover the topics of the taxation of pensions received by former EU officials resident in Switzerland, processed agricultural goods, the participation of Switzerland in the European Environmental Agency, statistics, the participation of Switzerland in various programs concerning education, professional training and youth, ‘Schengen’ and ‘Dublin,’ the taxation of savings income, and the combat against fraud.3

The various agreements exhibit different structures and objectives and have thus typically been allocated categories: ‘Cooperation agreements’ provide for the participation of Switzerland in EU programs, while ‘liberalisation and harmonisation agreements’ such as the Free Movement of Persons Agreement achieve partial access to the EU internal market; ‘partial integration agreements’ establish a very close cooperation in particular sectors, typically with an even somewhat integrated institutional framework between Switzerland and the EU.4 The present contribution does not purport to examine the content of the Bilateral Agreements in further detail;5 instead, it focuses on the absence of provisions on fundamental rights in the agreements and the questions raised by this absence. This absence is all the more relevant in the light of the topics covered by the agreements, some of which are highly likely to raise fundamental rights concerns such as the free movement of persons or Schengen and Dublin.

At a first look, the transfer of parts of the EU legal acquis seems thus to exclude the case law of the Court of Justice of the European Union (CJEU) on fundamental rights and the EU Charter of Fundamental Rights, which codifies to a considerable extent this case law.6 Consequently, this case law could be considered irrelevant in the application of the Bilateral Agreements in Switzerland. However, such a conclusion proves deceptive upon a closer look: EU fundamental rights are to be respected throughout the interpretation and application of all EU law, which could also have an impact on the interpretation and application of the Bilateral Agreements. This claim is examined in the present contribution, detailing first the manner of ‘transfer’ of parts of the EU legal acquis into the agreements and the relevance of the CJEU’s case law for their interpretation (Sect. 16.2). The scope of the binding effect of EU fundamental rights is subsequently assessed (Sect. 16.3), to conclude lastly with some observations on the consequences of the thesis put forward in this paper (Sect. 16.4).

16.2 Mechanisms of ‘Transfer’ of the EU Legal Acquis in the Bilateral Agreements

To fully understand the potential relevance of EU fundamental rights in the application of the Bilateral Agreements in Switzerland, we must first turn to the mechanisms of transfer that the agreements establish for the parts of the EU legal acquis that they cover. In a second step, we then assess to what extent the interpretation given to EU law by the CJEU is also pertinent to interpret the ‘transferred’ or parallel norms contained in the Bilateral Agreements.

16.2.1 Transfer Mechanisms in the Bilateral Agreements

A large number of the Bilateral Agreements are based in different ways, but to a substantial degree on the EU legal acquis.7 The object and material scope of each agreement determines the degree of transfer: some agreements aim for integration of Switzerland into parts of EU law more than others and require thus a more far-reaching adaptation to the existing EU legal acquis.

Technically, the transfer of EU law is implemented in the respective agreement, either through a direct reference to EU legal acts such as secondary legislation8 or through the use of provisions that replicate or at least resemble in their wording EU legal provisions.9 Since the agreements are treaties under international law, in principle the obligations they contain are formally of a static nature: in particular, changes in EU law to which they refer or that they replicate do not ‘automatically’ modify the content of a treaty. However, since the objective of the agreements is to secure a legal situation in Switzerland as parallel as possible to the one in the EU, specific provisions in the agreements provide for an integration of new EU legislative developments into the agreements. Three mechanisms can be distinguished for this purpose.

First, the Joint Committees formed by representatives of the contracting parties are often attributed the competence to modify annexes to agreements to, e.g., adapt the list of EU secondary legislation accordingly. Typically, the Bilateral Agreements I contain this mechanism, as the example of the Agreement on the Free Movement of Persons shows. As Joint Committees decide by unanimity, such adaptations may also fail to take place, leaving the acquis under the Bilateral Agreements behind concerning relevant new developments in EU law.

Second, the Schengen and Dublin Association Agreements provide for an obligation for Switzerland to continuously adopt new developments in the respective field of EU law but leave it to Switzerland’s ordinary legislative procedure to implement the necessary changes. If new developments are not adopted, the respective agreement is automatically terminated after a certain period of time. There is thus no ‘automatic’ duty to adopt new EU law for Switzerland, but if new legal developments are for whatever reason not adopted in Switzerland, the subsequent termination of the agreement constitutes a very heavy sanction. Switzerland is thus effectively left with little leeway.10

A third, somewhat similar mechanism, has been found in the more recent Agreement on Customs Security:11 while initially automatic termination in case of non-implementation of new legal acts by Switzerland had been the objective for the EU,12 the eventual compromise provides for the possibility for the EU to take compensatory measures if Switzerland does not implement new legal acts. The Joint Committee can then turn to an arbitral tribunal to examine the proportionality of such compensatory measures.

It should be noted that for the future, the EU insists on finding a solution that ensures a continuous and dynamic integration of Switzerland into the developing EU legal acquis. The Schengen/Dublin model is thus likely to represent the ‘minimum standard’ for future bilateral cooperation, while the Agreement on Customs Security constitutes rather a ‘special case’ than a true model for other, less specific agreements.13 While the Swiss government is hoping to be able to continue with bilateral, sector-specific solutions,14 the EU’s position is more sceptical and demands that before the conclusion of any new agreements an adequate institutional framework has to be found; according to the Council of the EU, such a framework must ensure a dynamic adaptation to the EU legal acquis and international mechanisms of surveillance and judicial interpretation of the Bilateral acquis.15

16.2.2 The Relevance of the Interpretations Given to EU Law by the CJEU

The partial integration of Switzerland into the EU legal acquis through the Bilateral Agreements raises the question if and to what extent parallel norms of the Bilateral acquis ought to be interpreted in the same way as the parallel norms of EU law.16 The answer to this question simultaneously lays the groundwork for the main issue of this paper, i.e., whether the interpretation of the Bilateral Agreements requires taking into account EU fundamental rights as used by the CJEU when interpreting the parallel EU legal acquis.

The argument in favor of such ‘parallel’ interpretation is particularly strong where the regulatory objective of an agreement is to achieve a parallel legal situation in the EU and in Switzerland. For this purpose, alignment with the jurisprudence of the CJEU appears indispensable. Some agreements expressly provide for the consideration of such case law. In the Agreement on the Free Movement of Persons, Article 16 paragraph 2 provides that ‘[i]nsofar as’ concepts of EU law are concerned, ‘account shall be taken of the relevant case-law of the Court of Justice’ prior to the date of signature of the agreement. But also in the case of the Schengen and Dublin agreements, the wording and objective of the respective agreement provide strong arguments in favor of a ‘parallel’ interpretation in line with the CJEU’s holdings.17 Indeed, when interpreting the Agreement on the Free Movement of Persons, the Swiss Supreme Court routinely refers to the CJEU’s case law as a relevant source of inspiration.18

Of course, the temporary scope of inspiration by the CJEU’s jurisprudence also requires clarification. The mentioned Article 16 paragraph 2 of the Agreement on the Free Movement of Persons refers only to case law handed down ‘prior to the date of its signature.’ Taking a formalist approach, one could thus consider later case law to be irrelevant. However, in practice the Swiss Supreme Court takes a pragmatic approach and routinely takes into account also later case law to fulfill the objective of creating a continuous parallel legal situation.19 Similarly, the CJEU has referred in the few cases on the Agreement on the Free Movement of Persons to its own earlier as well as later case law while interpreting the Agreement’s provisions.20 This pragmatic approach seems also well founded based on the objectives pursued by individual Bilateral Agreements, as well as the overall framework they have established.21

While there is thus a good argument in favor of taking into account EU case law generally in the interpretation of the Bilateral Agreements, a number of questions remain to be answered in each concrete case. First, it is not always obvious whether notions in the Bilateral Agreements are effectively taken from EU law. Furthermore, the relevance of new developments in EU law for the interpretation and application of a provision in a Bilateral Agreement is not always obvious, in particular as regards new case law of the CJEU. Contentious questions may eventually only be resolved at the level of the highest courts, with the consequent lack of legal certainty and the additional problem that there may be a simple continuous divergence of opinions between the EU and Switzerland because of the lack of a binding mechanism for dispute settlement between both contracting parties.22

Despite these difficulties, we can retain that the need to take into account EU case law in the interpretation of the Bilateral Agreements provides in principle a basis for the thesis of this paper that the interpretation of the Bilateral Agreements requires taking into account EU fundamental rights as used by the CJEU when interpreting the parallel EU legal acquis.

16.3 The Relevance of EU Fundamental Rights in the Interpretation and Application of the Bilateral Agreements

To assess to what extent we can speak of a binding effect of EU fundamental rights in the sphere of application of the Bilateral Agreements, we must now as a further step first examine the dogmatic problem of the transfer of EU fundamental rights itself. Then we turn to an assessment of the scope of the effect of these rights within EU law, to be able to eventually judge to what extent we can actually support such a binding effect for the application of the Bilateral Agreements.

16.3.1 Defining the Problem

The case law on the Bilateral Agreements has yet to address the question as to whether the jurisprudence of the CJEU on fundamental rights is relevant for the interpretation of said agreements. Dogmatically speaking, we must ask whether the ‘transfer’ of EU law through the Bilateral Agreements encompasses at least in some cases also the EU fundamental rights acquis or, put differently, whether the ‘concepts’ of EU law mentioned in provisions like Article 16 paragraph 2 of the Agreement on the Free Movement of Persons also include EU fundamental rights standards.

The question concerns thus the reach of the transfer of the EU legal acquis under the Bilateral Agreements, which is of particular importance because of the CJEU’s supreme authority to interpret EU law. Even if the Court is basing its case law on concepts that have not been transposed to the Bilateral Agreements as such, arguably such case law or at least certain parts of it may be relevant to construe provisions of an agreement: ‘parallel’ rights could be at issue.

This point as well as the difficulty of distinguishing relevant from irrelevant parts of the CJEU’s case law can perhaps best be demonstrated with the example of Union citizenship as a concept of EU law. While Union citizenship has not been transposed to the Bilateral Agreements, a number of rights of free movement contained in the Agreement on the Free Movement of Persons are equivalent to and effectively mirror rights held by Union citizens. As soon as the CJEU construes these citizenship-based rights, such jurisprudence ought to be considered relevant just as well for the ‘parallel’ rights contained in the Agreement. As an example, the finding of the CJEU that a parent of a minor Union citizen entitled to custody can derive a right of residence23 was also found pertinent and relevant by the Swiss Supreme Court for a case on the right to free movement of nonworkers.24

Consequently, as a crucial problem it is only possible to establish which aspects of EU law and the CJEU’s case law are relevant in the framework of a case-by-case analysis. Even where at first look no EU law notions or concepts seem to have been transferred to a Bilateral Agreement, only interpretation can tell with certainty for the case at hand whether, notwithstanding this preliminary conclusion, certain aspects of EU case law may prove effectively relevant.

As a consequence, the relevance of EU fundamental rights cannot simply be denied based on the fact that such rights are not explicitly mentioned in the Bilateral Agreements. There may very well be situations where interpretation of the Bilateral Agreements will require recourse to EU legal principles, including EU fundamental rights. However, such recourse requires a finding that these concrete principles of EU law interpreted by the CJEU have actually been transferred into the Bilateral Agreement at issue.

In contrast to the mentioned case of Union citizenship, for EU fundamental rights there does not exist a set of rights in the Bilateral Agreements that would be similar to those granted by citizenship but simply based on a different heading such as ‘free movement’ instead of ‘citizenship.’ The question therefore is not about fundamental rights having been transferred verbatim

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