Source: Dispatch of the Federal Council on Bilateral III, pp. 91--104
PDF of the dispatch
The dynamic adoption of law is one of the central institutional elements of Bilateral III. It obliges Switzerland to integrate relevant developments in EU law into the bilateral agreements. Dynamic does not mean automatic, however: each adoption requires an individual decision by Switzerland according to its constitutional procedures, including referendum.
The term "dynamic adoption of law" is frequently misunderstood. The dispatch clarifies:
| Characteristic | Dynamic adoption of law | Automatic adoption of law |
|---|---|---|
| Decision required? | Yes -- individual for each legal act | No -- applies directly |
| Referendum possible? | Yes -- for legislative adaptations | No |
| Deadline defined? | No -- "as quickly as possible" | Fixed |
| Consequence of non-adoption? | Dispute settlement mechanism | Automatic lapse |
| Comparison | Bilateral III | Schengen/Dublin |
Important: In the Schengen/Dublin area, non-transposition leads to automatic lapse of the agreements. Under Bilateral III, this automatism does not exist -- instead, the dispute settlement mechanism applies.
Switzerland commits under international law to integrate relevant EU legal acts "as quickly as possible" into the bilateral agreements. Specifically, this means:
The EU legal act is directly incorporated into the annex of the relevant bilateral agreement. Switzerland adopts the act into its legal order through:
Typical for: Technical standards, conformity assessments, product regulations (MRA, Agriculture)
Switzerland achieves the same result with its own Swiss law. The EU legal act is not adopted verbatim; instead, the result must be equivalent.
Typical for: Areas with strong national regulatory interest (e.g. free movement of persons, land transport)
Not every EU legal act falls under the adoption obligation. The dispatch defines clear demarcation lines:
The parties may, after a discussion phase in the JC, invoke exceptions to the adoption obligation:
The Air Transport Agreement has the most comprehensive form of dynamic adoption of law, as Switzerland is largely integrated into the EU internal air transport market.
If Switzerland does not adopt a relevant EU legal act:
| Criterion | Bilateral III | Schengen/Dublin | Autonomous adoption |
|---|---|---|---|
| International law obligation | Yes | Yes | No |
| Adoption deadline | No fixed deadline | 2 years | None |
| Consequence of non-adoption | Dispute settlement | Automatic lapse | None |
| Referendum possible | Yes | Yes | Yes |
| Freedom of design | Medium (equivalence) | Low | High |
| Participation (Decision Shaping) | Yes | Yes | No |
Autonomous adoption: Switzerland adopts EU law voluntarily, without any obligation under international law. This already occurs today in many areas (e.g. product law, food law). Under Bilateral III, this practice is transposed into an international law framework.