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The Swiss have an eagle eye on the new trade agreement between the British and the EU. London negotiated better than Bern? European lawyer Christa Tobler explains the differences.
Christa Tobler believes that the British trade agreement is thin: Switzerland maintains a much closer connection to the European market with the bilateral route.
Photo: Urs Jaudas
What is the difference between the EU-UK trade agreement and the institutional agreement that Switzerland is negotiating with the EU?
The best way to make a comparison between the trade agreement and the Swiss bilateral track. The bilateral track with its various market access agreements forms a system in which the content of the EU internal market, the “jewel in the crown” of the EU, works quite well. Some third countries, including Switzerland, participate in this market to a certain extent and are therefore considered part of the enlarged internal market by the EU. This is regulated in bilateral agreements, which contain a relatively large amount of EU legislation. The draft trade and cooperation agreement between the EU and Great Britain is fundamentally different.
Which way?
There is no EU law in the draft UK Agreement if we exclude the Northern Ireland exemption. The main agreement is based on the rules of the World Trade Organization. (IN THAT)that have been refined and personalized.
And what does that mean for the economy?
The deciding factor is how much such an agreement facilitates economic transactions between the two markets. There is a very clear difference: on the domestic marketmeterodell, companies receive significantly more relief than in world trademeterodell. For example, Switzerland has concluded an agreement with the EU on technical barriers to trade. These are products for which approval is required. Switzerland recognizes products approved in the EU under EU law – and vice versa -, because they both have equivalent regulations. I have not yet analyzed the entire UK deal, but my impression is that it goes much less far on this point, for example. Translated to the corporate world, this means that British companies have to do everything they can to get approvals for the EU market.
“British companies have to do everything they can to get approvals for the EU market.”
But can’t the difference be quantified yet?
No. The contract is over now just a draft that has not yet been ratified by both parties. And knowledge of both EU and WTO law is required for an in-depth analysis of the 1,200-page agreement. However, in a 2015 report, the Federal Council listed in detail the differences between a comprehensive free trade agreement and bilateral agreements. He clearly concluded that a so-called global trade agreement would represent a step backwards for Switzerland as a whole.
Proponents of a free trade agreement argue that the EU has negotiated contracts with Canada and now also Great Britain of a new quality that went much deeper.
I do not have the impression that the UK agreement is tremendously deep. On the contrary: everyone who has already examined it more closely concludes that it is a weak agreement. First, it contains principles. It is clear that no tariffs will be charged, but there is much more to negotiate and it is much less tangible than in the EU free trade agreements with Canada, Japan or Vietnam.
You mentioned trade barriers as an important difference, and the same applies to mutual recognition of professional qualifications. Is it conceivable that the UK and the EU will negotiate further simplifications here later?
Because so much is being put off now, it’s unclear how it will play out over time. The EU and Britain can still recognize each other’s rules relatively easily, because shortly after Britain left, they remain very similar. But in time they can part. It is not yet known how this will actually work.
For Switzerland, the question arises as to whether better access to markets is worth the higher price. It is supposed to accept the Court of Justice of the European Communities (ECJ) as part of dispute settlement, while Britain has negotiated it.
At the beginning of the exit negotiations, the EU and the UK made a joint statement that the ECJ would play a role if the future treaty contained EU law. However, this contract does not contain EU legislation, so the ECJ does not play any role. This is fundamentally different with the Swiss bilateral path. It is difficult to say to what extent this will change the initial political situation.
“Those who praise a trade deal as an alternative said it was easier than it was.”
They assume that Switzerland cannot negotiate with the ECJ on the framework agreement. But in 2013 he was part of a group of European lawyers who warned against the role of the ECJ and preferred the EEA before the Efta Court.
I never hid the fact that I had a solution with the Efta-Court would have found it more elegant. But the Federal Council decided to go with the ECJ. Meanwhile, the world has completely changed. For example, the EU has already used the model of an arbitration court several times in agreements with other countries with reference to the ECJ for certain issues. If the wheel can be turned back now it is anything but safe. Even those who praise a trade deal as an alternative have said it more easily than it did. The EU should also want such an agreement, followed by years of negotiations.
At the national level, the pressure on the Federal Council is mounting: critics of the institutional arrangement are confirmed by the British arrangement.
Little is known publicly about how the Federal Council intends to continue its dialogue with the EU. In any case, I do not envy him: for some, it seems to be a question of faith whether the institutional agreement can be replaced by a free trade agreement. Great Britain has a completely different starting position than Switzerland.
