Thomas CottierSwiss Model of European Integration

2.21    Thomas Cottier, Swiss Model of European Integration, in Astrid Epiney and Stefan Diezig (eds), Schweizerisches Jahrbuch für Europarecht 2012/2013, Bern 2013,  p. 1 – 17

a) Background

In analysing and describing the history of the European Policy of Switzerland political scientists such as Dieter Freiburghaus (see texts 2.10 and 2.14), and René Schwok, see text 2.13, were in the lead to inject an academic and scientific perspective to the process of Europeanization of Swiss Law and legal culture. Thomas Cottier, is among one of the exceptions among the lawyers – besides partly Daniel Thürer and Carl Baudenbacher – in establishing himself as a constructive and continuous commentator on the legal developments. He had the privilege to participate in the emergence of international and European economic law on an international level as a government official, a negotiator, a participant in WTO panels, a consultant, a teacher and a scholar. He often uses his constitutional law background and his openness to other social sciences in describing and construing a bigger picture of the emerging reconfiguration and repositioning of Swiss Law and Legal Culture vis-à-vis the European Union. He is known to have been for many years an advocate of Switzerland becoming a full member of the EU while recognising the difficult political feasibility of that final step. Few contributions of the Swiss academic community to a European forum and discourse outside of Switzerland can be found. Only after the turn of the Millennium – “waking up late” – some Swiss lawyers gradually started to proactively and assertively take part in those discourses by, for instance identifying potential Swiss contributions to the process of European Integration (see texts by Daniel Thürer 2.8 and Carl Baudenbacher 2.9). After Denis de Rougemont (see text 2.4) the concept of Switzerland being a possible “Model for European Integration” – with the exception Adolf Muschg  (text 2.33) – has only been brought into play by non-Swiss academic writers such Peter Häberle (text 2.7) from a legal and Heinrich Schneider (text 2.5) from a political science perspective. It seems to be a sign of the retarded coming of age and of a creeping international marginalisation, that Swiss scholars only lately started to participate in international dialogues on the processes of Americanization, Europeanization and Globalization of Swiss Law and legal culture.

The text at hand of Thomas Cottier with entitled Swiss Model of European Integration introduces the concept in a dense synthesis. It sets the preconditions that the Swiss model of European Integration may at least be better understood outside of Switzerland. Contrary to the selection of texts published concerning the processes of Americanization and Globalization, the text is a rare example  of a text by a Swiss scholar, written in English, detailing the process of Europeanization. The text of Cottier appeared in the Schweizerisches Jahrbuch für Europarecht (Swiss Yearbook of European Law in 2012/2013). It took the boldness of Carl Baudenbacher  to word in English an across the board analysis of the effects of foreign and European laws on Swiss Law and Swiss Legal Culture (see his general report to the Annual Meeting of the Swiss lawyers association of 2012 under the general title Swiss Economic Law facing the Challenges of International and European law, see texts Carl Baudenbacher 2.18, 2.27 and 2.28 in Europeanization).

Thomas Cottier is a full professor of European and international economic public law at the University of Bern, and is the director of the World Trade Institute. Cottier has an international academic education at the Universities of Cambridge (United Kingdom) and Michigan at Ann Arbor (United States). He has experience in legal practice in the function of Deputy Head of the Swiss Office of Intellectual Property and as a negotiator for Switzerland in the GATT and WTO process. As an international scholar he is part of a small group of leading specialists in international economic law in the world.

b) Summary

The text begins by reminding the reader of the irony of the closed eyes of Switzerland to the European Union and the institutional abstention from the process of political integration of Europe: Switzerland is neither a member of the EU nor of the European Economic Area (EEA). This is despite the fact that it is one of the economically most integrated countries of Europe and that its location is at the geographical heart of Europe-According to Cottier, Switzerland belongs to what nowadays is called the fourth level of integration by partly participating in the internal market today by means of a series of bilateral agreements.

Cottier goes on to discuss  how Switzerland’s commitment to free trade for its export oriented industry has shaped it’strade policy and foreign external relations in the post war period. At the same time the World War period left a lasting mark on agriculture policies leading to protective features of Swiss agricultural policy. European policy of Switzerland, according to Cottier, has therefore been shaped by two strands: Industrial free trade including attracting foreign companies and their headquarters and agricultural protection.

Cottier explores the “Roots of Bilateralism” and explains the Swiss model for European Integration by highlighting the history, political institutions, politics and economic interests of Switzerland.  The major part of the text deals with the “Pros and Cons of Bilateralism” including its relationship with Swiss democracy. The Swiss model of static and passive European Integration does not extend to third party relations. Cottier goes on to address the institutional deficiencies of the frame-work of Swiss participation in the internal European Market which recently lead the Commission and the Council of the EU to make further agreements dependent upon the elimination of the shortcomings. Cottier describes options of behaviour on this presently hotly debated topic of Swiss foreign policy.

The text ends with the following conclusions, which captions the essence of Switzerland’s European Policy in a nutshell:

“The Swiss model of integration is based upon particular historical and constitutional premises of the country. It developed in squaring the need for market access and non-discrimination with traditional precepts of formal sovereignty, neutrality, self-determination, direct democracy and federalism. It has been suitable for a country abstaining from international disputes within and outside Europe and refraining from taking a leading role in foreign policy. Thanks to the goodwill of the EEC, the EC and the EU in subsequent generations, and being the fourth largest trading partner located at the heart of Europe, Switzerland was able to obtain a treaty regime which respects the country’s basic constitutional needs.She has managed to achieve reciprocal market access combined with full institutional abstention. This static model, however, has reached its limits. Further developments, even maintaining existing agreements, depend upon appropriate institutional arrangements which secure international surveillance and judicial review as well as automatic adoption of secondary legislation under agreements adopted. Existing institutions under the EFTA pillar are able to provide these functions. There is no need to reinvent the wheel. Whatever solution is achieved, however, Switzerland, and possibly other countries in the fourth circle of integration, will depend on legal developments occurring within the EU as the price for market access rights and non-discrimination. It has been a constant in history that the largest markets set the rules. Participation in EU law making will not exceed due process rights to be heard and of decision-shaping. The countries in the fourth circle will retain formal sovereignty, but largely lose self-determination except for the decision whether or not to join another level of European integration. They need to make up their own minds, taking into account not only their own history and constitutional precepts, but also the needs of present and future generations in Europe facing emerging powers.”

c) Text

You can find a scan (PDF) of the original text here:
E_2.21_COTTIER_Swiss Model of European Integration

© Prof. Jens Drolshammer, office@drolshammer.com,  www.drolshammer.net

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