That the professors was not Philipp and Carl Baudenbacher at the end of February before the Commission for economy and taxes of the national Council of critical opinion on the draft framework agreement submitted, in the sense of the foreign Department (EDA). Immediately it caused the Hear after that to come to the Commission meeting, supporters of further Integration of Switzerland into the EU, at least with the slides in word. And that it was given yourself the opportunity to respond in a comment on the report.
The paper was supposed to remain a secret. It landed, however, in the case of the NZZ, and also this editorial in the paper. The EDA refused to invalidate the arguments of the report scientifically, and gives an "opinion". It contradicts the former President of the Efta court, Carl Baudenbacher, that the arbitral Tribunal could not decide whether it must submit a question to the European court of justice (ECJ).
"not mince words"
Baudenbacher was right comparing inferred that the ECJ, directly or indirectly, in virtually all cases, have the last word and Switzerland is, in fact, the court of the opposing party. For Baudenbacher this is problematic because the ECJ, in contrast to other highest courts, the deepening of the European Integration, the interpretation of law could determine.
The EDA refers to the fact that it had to be in the Text of the agreement, hot, answering a question by the ECJ's "relevant and necessary". In addition, a decision by the ECJ of 1982 – "the Polydor case-law show" – that the interpretation of EU law, respect of contracts with third-party States must take.
For Baudenbacher are klaubereien the "word". The decisive factor is the comparative context in which the agreement had: "There is no doubt that a sham arbitration court, which must almost always ask to the ECJ, as they did in Georgia, Moldova and Ukraine have received, the model is not, what the EU offers to members outside the EEA."
The ECJ will not be able to recognise an independent court of arbitration, if only because he wanted to guarantee the uniform interpretation of contract law. "Directly or indirectly, the ECJ always decides."
EDA does not agree
The EDA in the paper that it is "in many armed CH - EU-likely" cases, that the ECJ will called. With respect to the position of the court of arbitration, it writes, it was a "classic arbitration" – to immediately push that it is having the special feature of the ECJ's call.
The versions of the Basel titular Professor Philipp to the impact of the framework agreement to state aid in the EDA speaks only occasionally. Zurkinden worked out that many of the provisions of Switzerland – of the state guarantee for cantonal banks, the cantonal building insurance to tax agreements with the framework agreement can be regarded as state aid and, therefore, under pressure from the EU would come. The EDA rejects Zurkindens conclusion that it would be useful to mention the Swiss derogations from the state aid law of the EU in the framework agreement and in order to hedge. The EDA does not write to be realistic.
In the accompanying measures of the EDA with the expert's opinion Is not agree that from the point of view of the Federal government, a General Deposit of duty and service locks are still possible and additional measures were not excluded if they are non-discriminatory and proportionate.
Zurkinden replies to the request, the need to apply the framework agreement in the future, dynamically, the directives of the EU and not on the state of the Law of 1999 at the signing of the agreement on the free movement of persons appointed. He, therefore, regard the framework agreement as a "turning point" for the accompanying measures, and their future development is uncertain. "Also, in cases of dispute about these questions is ultimately the ECJ would decide", Is to bear in mind.
In the case of the Union citizens Directive, the Department of foreign Affairs writes that Switzerland could not decide on the introduction of the problematic parts, such as the right of permanent residence for EU citizens unilaterally as it is today. Also, this question might come before the court of arbitration, which according to the opinion of the two experts, in fact, the ECJ would be. Then Switzerland could reject the Directive. Today, you can do this on one side in the Joint Committee.
The Switzerland had demanded, according to the EDA, the Express exclusion of the Directive, but this is not achieved. In order for the EDA, for example, speaks of the foreign policy Commission of the national Council, which it had regarded as a success, that the Directive was not mentioned in the agreement.
Created: 01.05.2019, 21:54 PM