Bricolage, Bullshit, and Bustle

On 15 December 2023, the Swiss Federal Council (Government) announced that it intended to start formal negotiations with the EU on the conclusion of a Framework Agreement (FA) 2.0. Five existing and two new treaties between the EU and Switzerland are to be subject to dynamic alignment and institutionalised, i.e. provided with a monitoring and judicial mechanism. The project, which is practically fixed in the decisive questions by a “Common Understanding” (“CU”) between the two parties, is based on a triple B approach: in substance, it consists of unsuccessful bricolage, the foundations were laid by bullshit, and because elections and a change of the Commission are imminent in the EU, bustle is supposedly of the essence. The CU summarizes what the Parties have informally agreed on.

Bricolage

Bricolage is an expression used in comparative law. Comparative law is the study of the similarities and differences between the various legal systems of individual countries and international organisations. Practising comparative lawyers are faced with the question of whether a certain solution can be transplanted from legal system A to legal system B. Such a transfer generally presupposes that the framework conditions are similar. In other words, the foreign regulation must fit. When elements from another system are inserted into a legal system, some speak of “bricolage”. The term is not limited to comparative law but has general application. In fact, it goes back to the French anthropologist Claude Lévi-Strauss. According to this author, the “bricoleur” creates a new product from materials “that are currently available”. With every “bricolage”, the crucial question is whether the materials fit together. A distinction must be made between successful and unsuccessful “bricolage”.

The public In both, Switzerland and the EU, is hardly aware that the institutional chapter of the FA 2.0 is based on “bricolage”, and, as will be shown, the unsuccessful one. A provision was broken out of the EEA Agreement and made the basis of the institutional regulation of the FA 2.0. The standard, Article 111(3)(1) EEA, reads:

“If a dispute concerns the interpretation of provisions of this Agreement, which are identical in substance to corresponding rules of […] [EU law], the Contracting Parties to the dispute may agree to request the Court of Justice of the European Communities to give a ruling on the interpretation of the relevant rules”

Under the European Economic Area (EEA) Agreement, which extends the EU’s single market to three of the four EFTA states: Iceland, Liechtenstein, and Norway, the ECJ can only be called upon with the consent of the EFTA side. In the context of FA 2.0, however, the respective provision is quite different. The EU Commission should be able to unilaterally bring its own court into play. In addition, Article 111(3)(1) EEA has never been applied in the thirty years of the EEA’s existence since EEA law has instruments available in the form of the infringement procedure and the preliminary ruling procedure, which enable conflicts to be resolved in other ways. The dispute settlement procedure between the parties to the agreement would only be a last resort in the EEA. Due to the requirement that the EFTA side agrees to the appointment of the ECJ, this even amounts to symbolic legislation.

Under FA 2.0, however, the dispute settlement procedure is to be the only type of procedure available with the EU and Switzerland being the parties. Moreover, private citizens and economic operators would be excluded from the procedure. What is more, a preliminary ruling procedure wouldn’t exist with the consequence that the Swiss Federal Supreme Court would also be excluded. It is true that the Federal Supreme Court may interpret and apply the treaties subject to FA 2.0 if it has a relevant case. Contrary to what the Federal Council suggests, this is, however, by no means based on a concession by the EU, but on Swiss law. Nevertheless, if the EU Commission disagrees with an interpretation of the Federal Supreme Court, it could bring the matter to the ECJ, which could ultimately correct the Federal Supreme Court. It should be noted that, unlike the EFTA Court for Iceland, Liechtenstein, and Norway, the ECJ is not a neutral court for Switzerland. The Federal Council makes no mention of this.

Bullshit

The previous statements have shown that the Swiss Federal Council tends to present the FA 2.0 in a distorted manner, obviously in order not to jeopardise its chances in a referendum. This is unacceptable, but it does not stop there. Since the days of Federal Councillor Didier Burkhalter and his State Secretary Yves Rossier, i.e. since 2013, bullshit has been the real foundation of Bern’s European policy. There is no concern for truth and truthfulness – the end justifies the means. They let out slogans that “aim to persuade without regard to truth” (the famous definition of bullshit by the recently deceased Princeton moral philosopher Harry G. Frankfurt). There is no other area in which the federal administration has shown such an uninhibited disregard for the truth as when it comes to the shaping of the relationship between the EU and Switzerland.

From 2008, the EU demanded that the bilateral market access agreements with Switzerland should be subject to a supranational monitoring and judicial mechanism. It proposed that Switzerland “dock” onto the two institutions of the EFTA pillar in the EEA, the EFTA Surveillance Authority and the EFTA Court. This would have meant that Switzerland would have been able to maintain its sectoral approach to the single market and appoint one member each to the two organs. This sovereignty-preserving model did not suit the Bernese Foreign Ministry. It wanted to set a “point of no return” on the path to EU accession.

The first bullshit campaign began with the grotesque claim by the Swiss Foreign Ministry that the ECJ would merely issue “expert opinions” for the Joint Committees which are in charge of administering the individual treaties between Switzerland and the EU. While every effort was made to make the ECJ look less frightening, the Foreign Ministry spread myths about the EFTA Court that would have prompted any student failing the exam. The worst of these fake claims was that judgments of the EFTA Court would only have effect in the EFTA pillar of the EEA. If the EFTA Surveillance Authority brought an action against Switzerland and Switzerland won before the EFTA Court, the judgment would not be binding on the EU. This was dead wrong, but the Berne Foreign Ministry successfully used this “argument”.

Duo Burkhalter/Rossier originally desired the model with the EU Commission as the de facto supervisor of Switzerland and the ECJ as the sole interpreter. However, when the said model proved to be unsaleable in terms of domestic policy, the EU put a new plan with the interposed bogus arbitration panel on the table. According to this mechanism, the EU Commission would be able to unilaterally take Switzerland to an arbitration tribunal, which would be obliged to ask the ECJ for a binding interpretation of EU law or treaty law identical in substance to EU law.

Switzerland accepted this politically, and a second bullshit campaign was launched under the new FDFA duo Federal Councillor Ignazio Cassis and State Secretary Roberto Balzaretti. First, the two said, untruthfully, that they had “wrested” this from the EU and then they began to ascribe competences to the “arbitration panel” that it could never actually have.

On the one hand, the FDFA claimed that the arbitration tribunal would have discretion when deciding whether to send a case to the ECJ. On the other hand, such discretion would also exist in the implementation of the ECJ’s ruling. As far as the ECJ itself is concerned, the actors of the Berne Government argued that somebody had to be the ultimate arbitrator and this could only be the ECJ. The ECJ was not bound to follow the EU Commission, but the law. Today, there are official statements from Bern praising the FA 2.0 as a customised solution for Switzerland, although this is also a case of failed “bricolage”.

Bustle

At the WEF in Davos, Swiss President Viola Amherd in January 2024 announced that the FA 2.0 “negotiations” with the EU would be concluded this year in view of the European elections in June and the end of the von der Leyen Commission’s term of office in autumn 2024. Since 2014, Switzerland has made the mistake of never giving the EU the impression that it could manage without a FA. Moreover, it has always committed to a mechanism with the EU institutions before the start of negotiations, which is also a gross mistake. Objectively speaking, however, there is no reason to hurry. The van der Leyen Commission’s track record is far from stellar – I only mention the hasty Green Deal and the developments towards more centralism and a planned economy – and the Vice-President responsible for Switzerland, Maroš Šefčovič, has not proven to be particularly flexible. Finally, one should not forget that the game with the imminent end of the EU Commission’s term of office and the supposedly closing window of opportunity is not new. On 13 September 2018, Jean-Claude Juncker said that it would be better for Switzerland to conclude the FA with the EU before the end of his presidency the following year. So, the Swiss shouldn’t be fooled and take their time. At the end of the day, this is not about whether someone at the top of the EU is well-disposed towards the Swiss or not. Rather, it is about interests that are independent of individuals. Switzerland can have such an unequal contract at any time.