Daniel Thürer, „Europaverträglichkeit als Rechtsargument, zu den Wegen und Möglichkeiten schweizerischer Rechtsanpassung an die neue Integrationsdynamik der Europäischen Gemeinschaften“, in Festschrift Dietrich Schindler zum 65. Geburtstag, Basel, Frankfurt am Main, 1989, p. 561-582
E_2.15_THURER_Europaverträglichkeit_Rechstargument
[Eurocompatibility as legal agrument – ways and possibilities of a swiss adaption to the new dynamics of European Integration]
a) Background
The article at hand was published in 1989 as a contribution to the Festschrift für Dietrich Schindler Jun, on the occasion of his seventy-fifth birthday, Daniel Thürer was the successor to the chair of Professor Dietrich Schindler Jun at the University of Zurich. Schindler Jun is an eminent constitutional and international public lawyer, who authoured important opinions for the Swiss government on crucial issues of the fate of Switzerland in the international legal community. Thürer’s article was written at an important crossroad of Swiss integration policy when Switzerland, in matters of European integration, started and accepted the inevitability and the priority of the relationship of Switzerland to the European Union in its foreign policy. The text raises arguments in a historic, political and societal context rooted in jurisprudential and philosophical considerations.
Daniel Thürer is an emerite professor (2010) of international law, European law and comparative constitutional law at the University of Zurich. He is a leading analyst and commentator of the developments in the legal relationship of the EU law and Swiss law. In the summer of 2011, he was mandated by the Swiss Federal Counsel to write a legal opinion on the opportunities and limitations of a further coordination and harmonization of Swiss law with EU or in connection with the next and crucial round of negotiations with the EU.
b) Summary
The text at hand addresses the avenues and possibilities of adapting Swiss law to the new dynamics of integration of the European Union, then the European community. The time of publication was marked by a re-launch of European integration increasingly marked by lowering trade barriers in the intra EU-trade to realise the single market as well as a further cooperation and integration of governmental activities. At the time of Thürer’s new evaluation, the process of integration of the European Community proved a certain institutional instability after having gone through three extensions of memberships, a dynamic drive for completion of the internal market based upon the Single European Act of 1984 and generally achieved political, societal and economic success. The EU had become the strongest player in world trade and commerce. The text squarely addresses the challenges of European integration for Switzerland. The text consciously applies a broader perspective and includes existing links of the Free Trade Treaty based on EFTA to the European communities and the special Free Trade Agreement between Switzerland and the EC, as specific examples of being within any definition of “European” and of “integration.”
The text basically analyses the relevance and applicability of a so-called “Euro-compatibility” principle as a basic principle of Swiss policy towards integration. The Free Trade Treaty of 1972 seems to run counter an application of a dynamic application. The more crucial question on the direct applicability of the Free Trade Treaty is answered in the negative based upon existing case law. In Thürer’s opinion, rather, the development towards the teleology of a “dynamic economic space” could lend itself as a credible basis for the argument of a general use of the argument of “Euro-compatibility” in Switzerland.
Switzerland should accept the principle of “Europafreudlichkeit” (Europe-friendliness) as a controlling and creative guiding principle. Switzerland as non-member-state retains its undivided sovereignty to legislate and as a non-member of the EU is in no way subordinated to European Community law. Therefore European Community law is not a formal source of law, but a creative and effective factor of orientation and inspiration. According to Thürer, it would be a great mistake to underestimate its dynamic potential as a guiding principle in Swiss Law.