Considerations on COM(2023)798 - Authorisation of the opening of negotiations between the EU and Switzerland on institutional solutions for EU-Switzerland agreements related to the internal market, on agreements that form the basis for Switzerland’s permanent contribution to the Union’s cohesion and for Switzerland’s association to Union programmes

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dossier COM(2023)798 - Authorisation of the opening of negotiations between the EU and Switzerland on institutional solutions for EU-Switzerland ...
document COM(2023)798
date December 20, 2023
 
(1) In February 2014, the Council noted that relations between the Union and Switzerland had developed towards a higher degree of integration. Switzerland had already been given access to a number of sectors linked to the internal market and negotiations were envisaged, which would widen Switzerland’s participation in the internal market.

(2) The Council therefore mandated the European Commission to negotiate an institutional framework agreement that would introduce institutional provisions in existing and future agreements between the EU and Switzerland related to the internal market.

(3) In November 2018, the European Commission and Switzerland finalised the draft text of an institutional framework agreement, but negotiations continued on several issues including free movement of persons.

(4) In May 2021, following further exchanges with the European Commission, Switzerland unilaterally terminated negotiations on an institutional framework agreement.

(5) In February 2022, the Federal Council presented an alternative way forward, consisting of a broad package of measures relating to the bilateral EU-Switzerland relationship, including a new approach regarding the institutional elements. These institutional elements would be included in each bilateral agreement related to the internal market rather than in a horizontal agreement. In March 2022, the European Commission and Switzerland engaged in exploratory talks to determine whether both sides could restart negotiations on this basis.

(6) In light of the outcome of the exploratory talks, and building on the 2014 mandate for an institutional framework agreement as well as earlier mandates for agreements on electricity, health, food safety and the participation of Switzerland in the European Union Agencies for the Space Programme and for Railways, the Commission proposed to reengage in negotiations on a broad package.

(7) The broad package would include:

- institutional provisions to be included in existing and future agreements related to the internal market providing for dynamic alignment with the Union acquis, uniform interpretation and application, and dispute resolution,

- State aid provisions to be included in existing and future agreements related to the internal market;

- new agreements on electricity, health and an updated and extended agreement on food safety;

- an agreement allowing for Switzerland’s participation in Union programmes;

- an agreement allowing Switzerland to participate in the European Union Agency for the Space Programme;

- an agreement ensuring Switzerland’s permanent financial contribution to the reduction of economic and social disparities in the European Union, and;

- other elements such as Switzerland’s financial contribution for its access and use of information systems.

(8) In order to ensure homogeneity and a level playing field for operators within the internal market, the agreements related to the internal market and the Union acts referred to in these agreements should be applied in accordance with the case-law of the Court of Justice of the European Union. This should cover all case-law, prior and subsequent to the conclusion of the negotiations.

(9) Continued participation of Switzerland in the internal market and its possible widening presuppose that rules applicable to relations with Switzerland in the fields covered by the agreements are the same as those applying in the internal market and that their interpretation and application cannot differ.

(10) Moreover, homogeneity requires that current and future Union law in the fields covered by those agreements is incorporated into the agreements as it is adopted, or as it develops or changes. An incorporation procedure, including a maximum time-limit for implementation, should be provided to this end.

(11) An independent arbitral tribunal should be set up to settle disputes. The arbitral tribunal should refer a question to the Court of Justice of the European Union for a binding decision, where the application of provisions of the agreements involves concepts of Union law, including possible exceptions and safeguards.

(12) The identical institutional provisions should be included in all existing and future EU-Switzerland agreements related to the internal market in order to facilitate the coordinated and coherent management of the agreements. These institutional provisions would be introduced notably in the following existing agreements: Agreement on the Free Movement of Persons7, Agreement on Air Transport8, Agreement on the Carriage of Goods and Passengers by Rail and Road9, Agreement on Mutual Recognition in Relation to Conformity Assessment10, Agreement on Trade in Agricultural Products11, all signed on 21 June 1999. The institutional provisions would also be included in the future agreements on electricity and on food safety. They should apply by analogy in the future agreement on health where that agreement provides for the participation of Switzerland in EU mechanisms and networks.

(13) With the aim of ensuring a level playing field for competition on the internal market, State aid rules applicable to the EU Member States and Switzerland should be included in the existing Agreement on Air Transport and the Agreement on the Carriage of Goods and Passengers by Rail and Road, as well as in future agreements related to the internal market, including an agreement on electricity. Further, the review of any State aid in Switzerland should be based on substantive and procedural rules equivalent to the ones applied within the EU.

(14) Without prejudice to the obligation to incorporate current and future Union law in the Agreement on the Free Movement of Persons and respecting the principles of non-discrimination between Member States and reciprocity, specific limited adaptations to existing Union acquis in the area of the free movement of persons may need to be agreed. Any adaptations should not result in a reduction of rights currently enjoyed by EU citizens under the Agreement on the Free Movement of Persons.

(15) Without prejudice to the obligation to incorporate current and future Union law in the area of posting of workers in the Agreement on the Free Movement of Persons, specific limited adaptations may need to be agreed in order to take account of the specificities of the Swiss labour market and ensure the application of the Agreement. Without prejudice to the principles of non-discrimination, justification and proportionality, these adaptations should be limited to the prior notification of the cross-border provision of services in order to facilitate controls in specific sectors based on risk assessments, the deposit of a financial guarantee for service providers who failed to meet their prior financial obligations, and requirements on self-employed persons as regards the provision of clearly limited and specified documents. The Union may also agree that Switzerland should not be bound by future amendments to Union legal instruments in the area of posting of workers where their effect is to meaningfully weaken or reduce the level of protection of posted workers with regard to the terms and conditions of employment, notably remuneration and allowances.

(16) Without prejudice to the obligation to incorporate current and future Union law in the fields covered by the Agreement on the Carriage of Goods and Passengers by Rail and Road, specific limited adaptations in this area could be agreed. These should not alter the scope of the Agreement, which includes international passenger transport, with the exception of Swiss purely domestic transport (i.e. national long-distance, regional and local transport).

(17) With the objective to consolidate and deepen the long-standing and successful EU-Switzerland cooperation, notably in research and innovation, education, training, youth, sport and culture, as well as other areas of common interest, an agreement should enable Switzerland’s more systematic participation in Union programmes in the future. This agreement would set the general terms and conditions of Switzerland’s participation in any Union programme.

(18) Specific terms and conditions of Switzerland’s participation in the generation of Union programmes for the period 2021-2027, in particular the Research and Innovation programmes, the activities of the European Joint Undertaking for ITER and the Development of Fusion Energy, Digital Europe, Erasmus+, EU4Health and Copernicus should also be agreed.

(19) In light of Switzerland’s participation in the EU’s internal market and in order to encourage the continuous and balanced strengthening of economic and social relations between them, the EU and Switzerland should establish a new legally binding mechanism to allow for a regular, mutually agreed and fair financial contribution by Switzerland towards reducing economic and social disparities between their regions. This new legally binding mechanism should be ready for the next EU multiannual financial framework.