The advice was to talk, before it was written. In the economic Commission of the national Council (WAK) has demanded that the SP national councillor Corrado Pardini already in December, that two legal opinions will be posted on the institutional framework agreement with the EU (InstA). One of Philipp and one by Carl Baudenbacher. It should be clarified how large the discretion of the arbitral Tribunal is in response to a request of the EU, the European court of justice (ECJ) to call, and what impact the agreement will have on state aid. Both reviewers are set against the InstA-critical. Baudenbacher, former President of the Efta court referred to the court of arbitration as a Fig leaf, Zurkinden has referred to the consequences of the agreement for state aid to a very large extent. Therefore, the center parties referred to them as the party and questioned the financing of the opinions in question.
Now Baudenbachers opinion. Actually, it is a secret, but it has found the way to the Sunday newspaper. The question Baudenbacher was: "How big is the discretion of the arbitral Tribunal, if it is from the EU will ask the European court of justice (ECJ) to call?" The aims at the heart of the InstA because it goes to the arbitration in the dispute. Originally, the Switzerland wanted to accept the ECJ as the Legal authority and the right to take its Decisions not to implement. This is at the cost of punitive measures. A year ago, Switzerland swung to a quote from EU President Jean-Claude Juncker, a court of arbitration between. This must, however, when it comes to EU law, the ECJ calls. Whose judgment is binding.
The court of arbitration was an "impermissible tinkering"
Similar arbitration courts of the EU with Georgia, Moldova and Ukraine. The failure of the Brexit Deal to a court of arbitration was also provided. Only if this arbitration, courts have a discretion, they will make from the point of view of the Switzerland of sense.
The right question to reviewers, Carl Baudenbacher and his answer in the Original. The full report is available here.
The answer Baudenbachers is clear: The arbitration court "has no discretion", "Switzerland submits to the court the opposite party, it does not bring any improvement compared to the pure ECJ-model" and "the submission will have an impact on Switzerland's Position in future negotiations with the EU." The reasons: first, from a comparative point of view, it is impermissible tinkering ("bricolage"), if a procedure has been developed for Association agreements of EU-candidate countries, will suppresses a discharge consent country like Britain or a country without a candidate's intention, such as Switzerland.
Although there is, secondly, a different language technology. In the Swiss agreement, the arbitral Tribunal "to call in the event that disputes of EU law is concerned, the ECJ", in the case of the Eastern Europeans submit "(to the ECJ) before" and the British "must request (to the ECJ for a judgment)". "You can't accept that there is a some kind of discretion," says Baudenbacher, and cited the English law experts, Martin How, who speaks of the "Vassal", and says further: "the InstA third in this point, the state would be friendly to be construed as the agreement with Georgia, Moldova and Ukraine, there is no point of reference." Wherever it comes to EU law, claim of the ECJ in anyway a monopoly.
Pardini and Aesch defend the opinion
The only significant difference Baudenbacher found in the provision that in the Swiss court of arbitration, in which officials are allowed to sit. A further weakness of the arbitration court is that it will always be set and re-assembled, could not be legal tradition. It is often argued that the ECJ is a good court and it would therefore be not a tragedy, if Switzerland had to accept his judgments. As Baudenbacher argues that the Federal Council fear that he might be forced by the ECJ to take on the controversial Union citizens Directive, although not mentioned in the agreement.
According to Pardini, the work of Baudenbacher is important: "The Commission is charged in accordance with the regulations, are free to appoint a reviewer, to put in such an extraordinary and complex matter. All the more, as the us, the Federal Council has passed the hot potato, and a final assessment calls." To do this, Baudenbacher was exactly the Right thing to do. The SVP national Council Thomas Aeschi: "It is justified, in my view, to hire a proven expert how Baudenbacher with an opinion. Who could have done better, after all, he has more than 20 years of experience as a judge at the Efta court."
Created: 10.02.2019, 07:36 PM