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Decision Shaping and Participation

Source: Dispatch of the Federal Council on Bilateral III, pp. 93--94 and 120--136
PDF of the dispatch

Summary

Decision Shaping denotes Switzerland's participation in the drafting of EU legal acts that are subsequently to be adopted into the bilateral agreements. The EU assures Switzerland the greatest possible participation -- analogous to the EFTA/EEA states. The Federal Council has also adopted comprehensive accompanying measures for cantons, Parliament and the public.

Decision Shaping at EU level

Principle

The EU grants Switzerland the greatest possible participation in the legislative process for legal acts falling within the scope of the single market agreements. The modalities vary depending on the type of legal act.

Three modalities of participation

Type of legal act Switzerland's participation Example
Ordinary legislative acts (regulations, directives) Consultation by European Commission, position papers, participation in expert groups EU regulation on mutual recognition of professional qualifications
Delegated acts (Art. 290 TFEU) Participation in Commission expert groups Technical standards in the MRA
Implementing acts (Art. 291 TFEU) Participation in comitology committees (in advisory capacity) Implementing provisions in air transport

Participation in CJEU proceedings

A special element of Decision Shaping: Switzerland may, in the context of preliminary ruling proceedings (Art. 267 TFEU) of the CJEU concerning questions related to the single market agreements:

  • Submit written observations (analogous to EU Member States)
  • Deliver oral observations
  • Thus actively shape the interpretation of relevant EU law

Accompanying measures for the cantons (sec. 2.1.7.1)

Confederation-cantons agreement

Analogous to the existing agreement in the Schengen/Dublin area, a new agreement is concluded between the Confederation and the cantons. Legal basis: Art. 5a FCPFA (Federal Act on the Participation of the Cantons in the Foreign Policy of the Confederation).

Content of the agreement

  • Early information of cantons about relevant EU legislative projects
  • Consultation of cantons before formulating the Swiss position
  • Inclusion of cantonal experts in Decision Shaping activities
  • Regular exchange between Confederation and cantons on the status of adoption

Staffing implications

The cantons must expect an increased need for staffing resources, particularly for:

  • Coordination within cantons and between cantons (CdC)
  • Participation in working groups and consultations
  • Implementation of adopted legal acts in the cantonal area of competence

Accompanying measures for Parliament (sec. 2.1.7.2)

New Art. 152a ParlA

The Federal Council proposes a new Art. 152a of the Parliament Act as lex specialis for Parliament's participation in Decision Shaping in the single market agreements.

Key elements

Element Content
Information The Federal Council informs the relevant committees in good time about relevant EU legislative projects
Consultation Parliament may issue position papers that the Federal Council takes into account when formulating the Swiss position
Lex specialis Art. 152a ParlA takes precedence as a special provision over the general provisions of Art. 152 ParlA
Directives The Federal Council issues directives on the concrete implementation of information and consultation

Staffing implications

  • 1.5 full-time equivalents at the Parliamentary Services for accompanying Decision Shaping

Accompanying measures for the public (sec. 2.1.7.3)

New Art. 40a GAOA

The Federal Council proposes a new Art. 40a of the Government and Administration Organisation Act (GAOA).

Transparency platform

  • Central online platform for the publication of all EU documents relevant to Decision Shaping
  • Notification of consultation recipients when new relevant EU legislative drafts emerge
  • Development costs: CHF 200,000 (one-off)
  • The platform shall ensure that interested parties can follow EU legal developments in a timely manner

Monitoring and evaluation

The Federal Council introduces comprehensive monitoring:

  • Evaluation per legislative period: Systematic review of the functioning of the institutional elements
  • Report to Parliament: The Federal Council reports regularly to Parliament
  • Quality assurance: Verification of whether Switzerland's participation rights are effectively exercised

Practice of other states as reference

Norway (EEA)

  • Norway has a well-developed Decision Shaping system within the EEA, with access to EU expert groups and comitology committees
  • Experience shows: early influence is more effective than later negotiations
  • Norway adopts approximately 300 EU legal acts per year

Denmark (Schengen)

  • Denmark participates as a non-EU member in Decision Shaping in the Schengen area
  • Parallel with Switzerland: participation without formal voting rights

Key points in summary

  1. Decision Shaping is not co-decision -- Switzerland has no voting rights, but comprehensive participation rights
  2. Early influence before formal EU legislation is the core of the approach
  3. Three levels of internal accompaniment: cantons, Parliament, public
  4. Legal bases adapted: Art. 5a FCPFA, Art. 152a ParlA, Art. 40a GAOA
  5. Monitoring ensures long-term effectiveness

Cross-references

Bibliography

  1. Dispatch of the Federal Council on Bilateral III (BBl 2025 610), chapter 2.1.3.1 "Decision Shaping", pp. 93--94
  2. Dispatch, chapter 2.1.7 "Accompanying measures", pp. 120--136
  3. Dispatch, chapter 2.1.7.1 "Cantons", pp. 121--126
  4. Dispatch, chapter 2.1.7.2 "Parliament", pp. 126--133
  5. Dispatch, chapter 2.1.7.3 "Public", pp. 133--136