Source: Dispatch of the Federal Council on Bilateral III, pp. 105--107
PDF of the dispatch
The interpretation, application and monitoring of the single market agreements follow the two-pillar model: Switzerland and the EU each independently monitor compliance with the agreements on their own territory. There is no supranational monitoring body (unlike the EEA with the EFTA Surveillance Authority). Uniform interpretation is promoted through principles of international law and the dialogue between the Federal Supreme Court and the CJEU.
Authorities and courts of both parties interpret the agreements uniformly. In doing so, they take into account:
A central protective pillar for Switzerland is the so-called Polydor case law of the CJEU (Polydor judgment, Case 270/80, 1982):
The CJEU's case law on EU single market law cannot per se (not automatically) be transposed to bilateral agreements.
| Aspect | EU single market | Bilateral agreements |
|---|---|---|
| Objective | Full economic integration | Sectoral, limited participation |
| Legal order | Supranational, primacy of EU law | International law, equal ranking |
| CJEU interpretation | Directly applicable | Only as guidance, not transposable per se |
| Dynamics | Automatic application of new law | Adoption requires a decision |
Significance: The Polydor case law prevents the CJEU from applying its single market jurisprudence to the bilateral agreements without examination. The agreements have a different context and purpose than the EU single market.
| Pillar | Competence | Authority |
|---|---|---|
| Swiss pillar | Monitoring on Swiss territory | Swiss authorities and courts (in particular the Federal Supreme Court) |
| EU pillar | Monitoring on EU territory | EU bodies (in particular the European Commission and the CJEU) |
Unlike the EEA, where the EFTA Surveillance Authority (ESA) monitors compliance with EEA law in the EFTA states, under Bilateral III no such body exists:
To promote uniform interpretation, a dialogue on equal footing between the Federal Supreme Court and the CJEU is envisaged:
| Aspect | Dialogue FSC-CJEU | CJEU in AP proceedings |
|---|---|---|
| Type | Voluntary, informal | Formalised, when needed |
| Initiation | By either court | By the arbitration panel |
| Binding character | Guidance | Binding for EU law questions |
| Purpose | Coherent interpretation | Clarification of specific legal questions |
| Criterion | Bilateral III | EEA/EFTA |
|---|---|---|
| Monitoring | Two pillars (independent) | EFTA Surveillance Authority (ESA) |
| Court | Federal Supreme Court (CH), CJEU (EU) | EFTA Court |
| Supranational | No | Yes (ESA) |
| Dialogue | FSC-CJEU on equal footing | EFTA Court oriented towards CJEU |
| Sovereignty | Higher | Lower |