Switzerland and the EU: A Challenging Relationship

Description

What makes the relationship between Switzerland and the EU so challenging? For both parties, mutual relations are of crucial importance, not least economically. As a result of the Swiss voters' rejection of the European Economic Area 30 years ago, there is at present a large number of agreements agreements that provide for Switzerland's partial participation in the EU's internal market as well as other matters. At the same time, there has now for more than a decade been an increasing degree of institutional and legal uncertainty. The present volume offers an inventory of different sides of this special relationship, which is interesting also in a comparative context. Front Cover Half Title Series Information Title Page Copyright Page Contents Preface Acknowledgements List of Figures Abbreviations Notes on Contributors Introduction: Switzerland and the EU: A Challenging Relationship 1 Important Relations in a Complex Setting of Non-EU Membership 2 The Development of the Bilateral Legal Framework over Time 3 The Bilaterals I 3.1 Negotiations 3.2 Competence Issues 3.3 The “Guillotine Clause” 3.4 Swiss Decision-Shaping Rights 3.5 Particularly Important: The Agreement on the Free Movement of Persons 4 The Bilaterals II and Beyond 4.1 Agreements, EU Agencies and Cohesion Payments 4.2 The Nature of the Schengen and Dublin Association Agreements and the Link of the Former to the EU’s Common Foreign and Security Policy 4.3 Taxation of Savings 5 The Debate around the Institutional Issues 6 Perspectives for the Future Chapter 1 The Policy of Autonomous Adaptation of Swiss Law to EU Law 1 Introduction 2 Policy of Autonomous Adaptation 2.1 Concept and Purpose 2.2 Relation to the Comparative Law Method 3 EU-Compatible Legislation 3.1 Statutory Law 3.2 Subordinate Legislation (Ordinances) 3.3 Legislative Technique 3.4 Cantonal Level 4 EU-Compatible Interpretation 5 Autonomous Adaptation in View of Adequacy and Equivalence Decisions 5.1 Data Protection Law 5.2 Financial Market Law 5.3 COVID-19: Personal Protective Equipment and Digital Certificates 6 Cassis de Dijon Principle 7 A New Chapter: Stabilex 8 Epilogue Chapter 2 The Agreement on the Free Movement of Persons: From the (Almost) Complete Integration of EU acquis on Social Security Coordination to the Absence of Integration of Directive 2004/38 1 Introduction 2 The Political and Legal Framework of the AFMP 2.1 The AFMP’s Fragile Political Environment 2.2 The AFMP’s Unique Legal Framework 3 Social Security Coordination between the EU and Switzerland: An (Almost) Complete Integration 3.1 The Institutional Framework Relevant for Social Security Coordination 3.1.1 The Special Status of Switzerland for the Application of the EU Social Security Coordination Rules 3.1.2 The Impact of the Institutional Framework on Social Security Coordination 3.2 The Social Security Coordination Rules for Frontier Workers 3.2.1 Conflict Rules Determining the Competent State and the Issue of Qualification of Social Security Benefits 3.2.2 Equal Treatment and the Waiving of the Residence Criteria 3.2.3 Access to Unemployment Benefits 4 The EU Citizens’ Rights Directive: Not Part of the EU-Swiss acquis 4.1 Swiss Reluctance vis-à-vis Directive 2004/38 4.2 Job-Seekers: Residence Rights 4.3 Job-Seekers: Access to Social Assistance 5 Conclusion Chapter 3 Sectoral Bilateralism: Lessons from the Case Law of the Court of Justice of the European Union 1 Introduction 2 Switzerland and the EU Internal Market: Differentiated Integration 3 Switzerland and the Agreement on Free Movement of Persons: Illustrating the Limits of Sectoral Bilateralism 4 Integration without Membership: Association to the Schengen and the Dublin acquis 5 Conclusion Chapter 4 The Swiss Posted Workers Act and Free Movement of Services 1 Introduction 2 Overview of the Swiss Posted Workers Act 2.1 Development of the Swiss Flanking Measures 2.2 Overview of the scope and Content of the Swiss Posting of Workers Act 3 EU Law and EU-Swiss Law on the Posting of Workers 3.1 EU Law and Case Law on Posting 3.2 The EU-Swiss AFMP, Services and Posting 4 Swiss Resistance to EU Law on the Posting of Workers 5 Specific Problems of the PWA in the Context of the AFMP 5.1 Fighting False Self-Employment 5.2 The 8 Days Rule 5.3 Sanctions 6 Summary and Conclusions Chapter 5 COVID-19, Switzerland and the EU: Pandemic-Related EU Action and Its Legal Effect on Switzerland as Compared to the EEA EFTA States 1 Introduction 2 Availability of Supplies and Equipment 2.1 EU Export Control Measures in Relation to Goods 2.2 The EU’s Joint Procurement Agreement Initiative 3 Movement of Persons 3.1 The EU’s Traffic Light System 3.2 The Digital COVID Certificate 4 Findings and Conclusion Chapter 6 Switzerland’s Structural Participation in EU Agencies 1 Introduction 2 A Primer on EU Agencification 3 EU Agencies and the External Dimension 4 The Rationale and Legal Framework for Third Countries’ Structural Participation in EU Agencies 4.1 Why Do Third Countries Participate in EU Agencies? 4.2 The General Legal Framework for Third Countries’ Participation in EU Agencies 4.3 Participation in EU Agencies from the Swiss’ Perspective 5 Switzerland’s Structural Participation in EU Agencies 5.1 The Notion of Structural Participation 5.2 Common Denominator of the Instruments Providing for Switzerland’s Participation in EU Agencies 5.3 European Aviation Safety Agency (EASA) 5.4 European Environmental Agency (EEA) 5.5 Frontex 5.6 European Asylum Support Office (EASO) 5.7 European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) 6 Future of Switzerland’s Participation in EU Agencies 7 The Institutional Agreement 8 Conclusion Chapter 7 The Case-by-Case Cooperation between the EU and Switzerland in Foreign Policy, Security and Defence 1 Introduction 2 A Cooperation in Line with the Traditional EU-Switzerland “Sectoral Bilateralism” 2.1 No Formal Political Dialogue but Ad Hoc Foreign Policy Cooperation 2.2 Voluntary Adaptation to EU Restrictive Measures 2.3 Swiss Participation in Multiple EU CSDP Missions 3 Options and Conditions for Further Cooperation in Foreign Policy, Security and Defence 3.1 Joining PESCO? 3.2 Participating in the Development of a European (Defence) Market? 3.3 The Significance of other EU-Switzerland Agreements in Furthering CFSP Cooperation 4 Concluding Remarks Chapter 8 The Road to Tax Transparency in Switzerland 1 Introduction 2 Development of Tax Transparency in Switzerland 2.1 Swiss Banking Secrecy 2.1.1 Origin and Sources 2.1.2 Scope of Banking Secrecy under Article 47 of the Swiss Banking Act 2.1.3 UBS Case 2.1.4 Findings 2.2 Modern Challenges: Offshore Markets 2.3 The US Tax System 2.3.1 Qualified Intermediary System 2.3.2 Shortcomings of the QI System and FATCA as a Remedy 2.3.3 FATCA Becomes a “National” Set of Rules 2.4 Transparency Initiatives of the European Union and of the OECD 2.4.1 The EU Taxation of Savings Income 2.4.2 State-to-State Agreements on Final Withholding Taxes 2.4.3 OECD: Base Erosion and Profit Shifting (BEPS) and Multilateralism 2.4.4 Sixth Directive on Administrative Cooperation of the European Union 2.5 Summary of the Historical Development of Transparency 3 Automatic Exchange of Information 3.1 FATCA as a Blueprint for the AEOI 3.2 Introduction of the Automatic Exchange of Information in Switzerland 4 Effects of the AEOI and outlook Chapter 9 A Comparison between the Swiss Cohesion Payments and the EEA and Norway Grants 1 Introduction 2 Historical Development, Facts and Figures 2.1 The EEA Grants and the Norway Grants 2.2 The Swiss Cohesion Payments 3 Legal Framework and Governance 3.1 The EEA Grants and the Norway Grants 3.2 The Swiss Cohesion Payments 4 Conditionality Approaches 4.1 The EEA Grants and the Norway Grants 4.2 The Swiss Cohesion Payments 5 Conclusion Chapter 10 The Shelved Institutional Agreement EU-CH from a Political Science Perspective 1 Introduction 2 Elements Which Explain the Federal Council’s Decision to Reject the InstA 3 Government Members of the Swiss People’s Party (SPP) 3.1 The Attitude of the SPP 3.2 The Two SPP Federal Councillors: Functions, Personalities and Personal Convictions 4 Government Members of the Socialist Party (SP) 4.1 The Attitude of the SP and the Swiss Trade Unions 4.2 The Two Federal Councillors of the SP: Functions, Personalities and Personal Convictions 5 Government Members of the Radical-Liberal Party (RLP) 5.1 The Attitude of the RLP and the Business Community 5.2 The Two Federal Councillors of the RLP: Functions, Personalities and Personal Convictions 6 Government Member of the Christian Democratic Party (CDP) / The Centre 7 InstA: Incomprehension about Its Rejection 7.1 Relatively Well-Negotiated Agreement and Substantial Concessions from the EU 7.2 The European Union Has Been Less Intransigent Towards Switzerland Than towards Other Third Countries and Ultimately the Brexit Did Not Play a Decisive Role 7.3 The Risks with Regard to Wage Protection, Social Tourism and State Aid Seemed Exaggerated 7.4 The Federal Council Could Have Promoted Measures to Allay the Fears that Had Been Aroused among the Population 7.5 The Damaging Consequences of a Rejection of the InstA Were Known 8 Conclusion Chapter 11 Switzerland and the EU: The Failure of the Institutional Agreement from a Legal Perspective 1 Introduction 2 Switzerland’s European Policy: Bilateral Agreements and Autonomous Adaptation of Swiss Law to EU Law 3 Comparison between the Bilateral Agreements and the Institutional Agreement on Institutional Issues 3.1 Introductory Remarks 3.2 Developments in EU Law 3.3 Legal Interpretation 3.4 Surveillance 3.5 Dispute Settlement 3.6 Termination Clause 4 Consequences of the Non-signature of the Institutional Agreement 4.1 The “status quo”, Current Version of the Bilateral Agreements 4.2 Decisions and Measures Taken or To Be Taken by the EU 4.2.1 No Update of Existing Market Access Agreements 4.2.2 No Conclusion of Future Access Market Agreements 4.2.3 Decisions Impacting Other Fields of the Bilateral Relationship 4.3 General Deterioration in the Relationship between Switzerland and the EU 5 Consequences Partially Mitigated by Domestic Measures Taken by Switzerland 6 Concluding Remarks Chapter 12 The Federal Council’s Suggested Sectoral Approach Post-26 May 2021 and the Future of EU-Swiss Trade Relations 1 Stocktaking and Line of Inquiry 2 Conceptualising a Model Sectoral Agreement 2.1 Introduction 2.2 Keeping It Light: AFMP for another Day 2.3 Allowing Success: Focus on the Politically Possible 3 Some Further Thoughts on Coverage 3.1 Trade in Goods 3.2 Trade in Services 3.3 Institutional Set-Up 3.4 Legislative Approximation and Decision-Shaping 3.4.1 Alignment As a Precondition for Privileged Market Access 3.4.2 Decision-Shaping: Quid pro quo for Legislative Approximation 3.5 State Aid 3.6 Financial Contribution 3.7 Dispute Settlement 4 Fault Lines 4.1 Compatibility with Constitutional Law 4.2 Compatibility with the Law of the WTO 4.3 Dispute Settlement 5 Conclusion Chapter 13 Switzerland-UK Trade Relations: A Future Planned by the Past?: An Overview of the Trade Agreement between Switzerland and the United Kingdom and Related Agreements 1 Current Foreign Policy Positioning of the United Kingdom 2 Negotiations 2.1 Course in an Uncertain Environment 2.2 Pragmatic Solution for the Trade Agreement 3 The Switzerland-UK Trade Agreement 3.1 The Framework Agreement 3.2 The “Incorporated Agreements” 3.2.1 Free Trade Agreement (FTA) 1972 3.2.2 Agreement on Public Procurement 3.2.3 Mutual Recognition Agreement on Conformity Assessment (MRA) 3.2.4 Agreement on Agriculture and Exchange of Letters 3.2.5 Exchange of Letters on the Generalized System of Preferences 3.2.6 Anti-Fraud Agreement 3.2.7 Agreement on Customs Facilitation and Customs Security 3.3 Memorandum of Understanding (MoU) on the Future Relationship 3.4 Additional Agreement Concerning Liechtenstein 4 Other Agreements 4.1 “Bilateral Agreements” 4.1.1 Road Transport Agreement 4.1.2 Air Transport Agreement 4.1.3 Direct Insurance Agreement 4.1.4 Citizens’ Rights Agreement 4.1.5 Agreement (Convention) On Social Security 4.1.6 Services Mobility Agreement 4.1.7 Mutual Recognition Agreement on Authorised Economic Operators 4.1.8 Police Cooperation Agreement 4.1.9 Further Topics Likely to Lead to Negotiations? 4.2 “Multilateral Agreements” 4.2.1 Formalities in the Movement of Goods 4.2.2 Common Transit Procedure 4.2.3 Standardisation 4.2.4 Enforcement and Recognition of Judgments 4.2.5 Statistics 5 Questions of Interpretation 6 Relationship between the UK and the EFTA States other than Switzerland 6.1 Separation Agreement 6.2 Free Trade Agreement between Iceland, Liechtenstein, Norway and the UK 7 Outlook Index Back Cover