Matthias Oesch, Die Europäisierung des Schweizerischen Rechts, in Die Eurokompatibilität des Schweizerischen Wirtschaftsrechts: Konvergenz und Divergenz, Thomas Cottier ed., Basle, Geneva, 2012, p. 13 – 100
E_2.19_OESCH_Europäiserung des Schweizerischen Rechts_ZSR_2012
[The Europeanization of Swiss Law]
a) Background
The text was published in a report comprising research results on the impact of European law on Swiss economic law. It is the most succinct recent overview of the state of Europeanization of Swiss law. It contains a full description of the various stages of the individual or sectorial bilateral agreements, which have been concluded between Switzerland and the EU in the past twenty years. The text is largely descriptive and written bottom-up based on specific issues of the legal reality. It contains a helpful comprehensive list of publications and a list of relevant public documents, which can be found under the bibliographical references of this section.
Matthias Oesch is a Professor of Law at the University of Zurich and was formerly an assistant professor at the University of Bern and fellow at the World Trade Institute.
b) Summary
Switzerland is politically, culturally and scientifically intimately connected with the European Union. Switzerland earns every third Swiss Franc in trade with the EU and is therefore directly affected by the developments in the EU. Although Switzerland has no direct international public law obligation to apply EU-law, the developments in the EU affect Swiss law considerably. Swiss law is continuously Europeanized. The process is unsystematic and more complex than the situation of an EU-Member state. The process is less transparent and less conscious. It is in a critical phase because of the EU requirements concerning an institutional solution of securing a homogenous application of treaty law as a precondition for further negotiations.
Oesch’s text aims to describe the characteristics of the Europeanization of Swiss law and critically comment on this process. He starts with the closely-knit network of bilateral treaties between Switzerland and the EU; the transformation of these bilateral agreements into national law and their interpretation and application in practice, have far-reaching consequences for the legal developments in Switzerland.
Under the heading “Autonomous Adaptation ” (Autonomer Nachvollzug), the text analyses the influences of European law, which are not adaptations originating in respective international public law treaty obligations. It follows a systematic unfolding of the principle of “Euro-compatibility of Swiss law”, which has been a guiding principle since 1988 in legislative and administrative processes in Switzerland and the introduction of the Cassis de Dijon-principle in 2010, which adds a new dimension to the Europeanization of Swiss law.
The analysis of the text is limited to the influences on Swiss law by the process of European integration embodied by the European Union. It does not deal with further “European law” instruments such as the European Convention on Human Rights, the European Patent Convention and the Lugano Convention, which also influence Swiss law in just as intensive a manner.
The text ends with an epilogue starting with the idea that the Europeanization of Swiss law is a fact. It gradually touches and influences more and more areas of life. There is hardly any field in Swiss law, which is not directly or indirectly influenced by the respective EU-law. Swiss lawyers therefore have to face these challenges and cannot limit their knowledge to the respective federal, cantonal or communal laws of Switzerland. Regarding knowledge, Oesch notes that there exist respective deficits and that the public is not enough aware of this “Euro-reflex .” (Europareflex ).