Daniel Thürer, „Kolumne: Von der sog. „Europaverträglichkeit“: Rechtsgestaltungsprinzip aus Verlegenheit oder Vehikel zur stillen Revolutionierung der Schweizerischen Rechtsordnung?, Zeitschrift für Schweizerisches Recht, 1993 II, p. 91-94
E_2.16_THURER_Kolumne Europaverträglichkeit_Prinzip
[The so-called „Euro-compatibility“: Principle of formation of law out of embarrassment or a vehicle for a silent revolution of Swiss law?]
a) Background
The text at hand is a short editorial, which appeared in the Zeitschrift für Schweizerisches Recht (Journal of Swiss Law), the leading Law Journal in Switzerland, of which Daniel Thürer is a co-editor. The point in time of publication is roughly two years after the rejection by the Swiss people and the Swiss cantons regarding the accession of the EEA-Treaty with the EU. At that time it was unclear if the vote would go down in history as an episode or an epoch-breaking event.
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 line of argument starts with the statement that regardless of the historic dimension of the popular vote on the accession to the EEA Agreement, it should not and cannot be overlooked that the principle of so called “Euro-compatibility” may lead to a silent reorientation and reorganisation of the Swiss legal system.
The decision of the Federal Council and of parliament to at least structurally adapt Swiss law to EU-law in the implementation of further legislative, administrative and judicial acts and in further negotiations of bilateral treaties will show a dynamic of its own and have a pull effect to bring about and speed up the process of harmonization of law between the two legal systems. Acts of adaptation and reception of EU-Law will produce effects of impulse and resonance beyond the realm of positive law in the receiving legal system.
According to Thürer, it is illusionary and misleading to follow the standard opinion that national acts of adaptation of law will only be brought about by a formal international treaty or by a formal and binding national legislative act. Such an opinion overlooks that the further development of law not only lies in the hands of the legislature and the organs negotiating international treaties, but in the hands of a plurality of actors participating in the process of further development of law. Why should these actors not take into consideration European law developments as a source of inspiration and as a relevant legal argument? Faced with the choice of a variety of legal arguments, should EU law not have a quality of preference or a quality of a model and prevail over less European friendly arguments? Why should the comparative law considerations within the EU not become a pillar and a determining factor as a principle of law generation in Switzerland?
Law always has emerged under circumstances in which – consciously or unconsciously – the reception of foreign law and foreign legal thought has and is an influencing and determining reality. This has particularly been the case with respect to the Swiss legal system. Further, the dramatic changes following the introduction of the principle of mutual recognition within the EU have to be taken into account. It appears that this variety of forms of legal developments leads – at least in the economic sphere – to an emergence of a new “jus commune” in Europe. In this process of flexible adaptation and harmonization a third nation may join. This will be a particular task of the courts to do so and to become active in that context. This inductive and autonomous legal harmonization of law towards “a common European economic law” will, according to Thürer, considerably cut the rough edges of the negative vote that took place on the 6th and 7th December 1992.