In its capacity as a consultative body within the EFTA institutions, Switzerland’s parliamentary EFTA/EU Delegation holds regular exchanges with both the EFTA Ministerial Council and the EFTA Court. The EFTA/EU Delegation also fosters relations with the European Parliament and with representatives of other European institutions. It is in this context that the delegation held discussions with Prof. Carl Baudenbacher, President of the EFTA Court, and Prof. Koen Lenaerts, President of the Court of Justice of the European Union, on the functioning of the two institutions on 16 and 17 November.
Since the spring of 2014, Switzerland and the European Union have been negotiating a framework agreement intended to define new procedural rules for selective participation in the single market. The Federal Council’s negotiation mandate of 18 December 2013 provides among other things that in the event of any dispute, both Switzerland and the EU could submit questions on the interpretation of EU law arising from a market access agreement to the Court of Justice of the European Union.
During the discussions, the members of the EFTA/EU Delegation were assured that any decisions reached by the CJEU in such a dispute settlement procedure would be binding for both parties. In view of this, if the CJEU is called on to resolve a dispute, the only issue is that of implementing its binding decision; no further discussion on the substance of the case is possible. The European Commission will act according to the judgment. The situation is comparable with that of EU states and EFTA states when a judgment has been issued on an infringement action in the EU or the EEA.
In the EEA, surveillance of EU states is exercised by the European Commission and infringements sanctioned by the CJEU if necessary. Responsibility for the surveillance of EEA-EFTA states, however, rests solely with the EFTA Surveillance Authority, which is also competent when an infringement action concerns the EU. Only the EFTA Court is competent to render judgments, the main example being the case of Icesave.
By virtue of their membership of the EEA-EFTA, EFTA states are represented in the decision-making body or College of the EFTA Surveillance Authority. They also nominate a judge to the EFTA Court and have staff in both institutions. Under a potential CJEU solution, Switzerland’s surveillance would effectively be exercised by the European Commission, but Switzerland would not be in a position to appoint a representative to the European Commission or the CJEU. Furthermore, there would be no Swiss staff at either institution. Surveil-lance would therefore be exercised and court judgments handed down by the institutions of the opposing party, which, in the view of the EFTA/EU Delegation, would not be able to take an impartial position.
Dr Kathy Riklin also expressed her interest in the question of possible sanctions in the event of failure to implement a court judgment. In the EEA-EFTA, a new infringement action would be brought, leading to a new judgment against the EEA-EFTA state by the EFTA Court. So far, further-reaching sanctions have never been imposed. In the event of non-compliance with a judgment rendered by the CJEU, however, Switzerland could potentially face sanctions as far reaching as the termination of an agreement.
Kathy Riklin, member of the National Council (CVP/ZH), chair of the EFTA Parliamentary Committee (CMP) and president of the Swiss EFTA/EU Delegation, Konrad Graber, member of the Council of States (CVP/LU) represented the Swiss Federal Assembly at the various meetings.
Bern, 17 November 2015 Parliamentary Services