Dynamic Adoption of Law in Detail

Source: Dispatch of the Federal Council on Bilateral III, pp. 91--104
PDF of the dispatch

¶ Summary

The dynamic adoption of law is one of the central institutional elements of Bilateral III. It obliges Switzerland to integrate relevant developments in EU law into the bilateral agreements. Dynamic does not mean automatic, however: each adoption requires an individual decision by Switzerland according to its constitutional procedures, including referendum.

¶ Core principle: dynamic, not automatic

The term "dynamic adoption of law" is frequently misunderstood. The dispatch clarifies:

Characteristic	Dynamic adoption of law	Automatic adoption of law
Decision required?	Yes -- individual for each legal act	No -- applies directly
Referendum possible?	Yes -- for legislative adaptations	No
Deadline defined?	No -- "as quickly as possible"	Fixed
Consequence of non-adoption?	Dispute settlement mechanism	Automatic lapse
Comparison	Bilateral III	Schengen/Dublin

Important: In the Schengen/Dublin area, non-transposition leads to automatic lapse of the agreements. Under Bilateral III, this automatism does not exist -- instead, the dispute settlement mechanism applies.

¶ Obligation to adopt

Switzerland commits under international law to integrate relevant EU legal acts "as quickly as possible" into the bilateral agreements. Specifically, this means:

No rigid deadline: There is no fixed maximum deadline for adoption
Internal procedures respected: The Joint Committee (JC) takes into account Switzerland's internal procedures (consultation, parliamentary deliberation, referendum)
International law obligation: The obligation exists, but Switzerland decides sovereignly on the timing and manner of implementation

¶ Two methods of adoption

¶ 1. Integration (referencing)

The EU legal act is directly incorporated into the annex of the relevant bilateral agreement. Switzerland adopts the act into its legal order through:

Reference to the EU legal act in the agreement annex
Adaptation of national law where necessary
Decision of the Joint Committee

Typical for: Technical standards, conformity assessments, product regulations (MRA, Agriculture)

¶ 2. Equivalence

Switzerland achieves the same result with its own Swiss law. The EU legal act is not adopted verbatim; instead, the result must be equivalent.

Switzerland retains more freedom in shaping the implementation
Equivalence is established by the JC
In case of disputes over equivalence, the dispute settlement mechanism applies

Typical for: Areas with strong national regulatory interest (e.g. free movement of persons, land transport)

¶ Scope of application and demarcation lines

Not every EU legal act falls under the adoption obligation. The dispatch defines clear demarcation lines:

The objectives and scope of the agreements remain static -- they are not dynamically extended
Only legal acts falling within the existing scope of an agreement are subject to the adoption obligation
Switzerland's sectoral participation in the EU single market is not expanded through the back door
The JC decides in case of doubt about the relevance of a legal act

¶ Exceptions and special regulations

¶ Exceptions (Art. 5 para. 7 IP-AAT)

The parties may, after a discussion phase in the JC, invoke exceptions to the adoption obligation:

A party may argue that a legal act does not fall within the scope of application
After discussions in the JC, an exception may be agreed
In case of disagreement, the dispute settlement mechanism applies

¶ Special case of air transport

The Air Transport Agreement has the most comprehensive form of dynamic adoption of law, as Switzerland is largely integrated into the EU internal air transport market.

¶ Consequences of non-adoption

If Switzerland does not adopt a relevant EU legal act:

Discussions in the JC: The parties attempt to find a solution
Dispute settlement mechanism: If discussions fail, a party may refer the matter to the arbitration panel
Rebalancing measures: As a last resort, proportionate rebalancing measures may be taken
No automatic lapse: The agreement remains in force -- unlike Schengen/Dublin

¶ Comparison: Bilateral III vs. Schengen/Dublin vs. autonomous adoption

Criterion	Bilateral III	Schengen/Dublin	Autonomous adoption
International law obligation	Yes	Yes	No
Adoption deadline	No fixed deadline	2 years	None
Consequence of non-adoption	Dispute settlement	Automatic lapse	None
Referendum possible	Yes	Yes	Yes
Freedom of design	Medium (equivalence)	Low	High
Participation (Decision Shaping)	Yes	Yes	No

Autonomous adoption: Switzerland adopts EU law voluntarily, without any obligation under international law. This already occurs today in many areas (e.g. product law, food law). Under Bilateral III, this practice is transposed into an international law framework.