Institutional Elements -- Overview

Source: Dispatch of the Federal Council on Bilateral III, pp. 74--87 and 120--143
PDF of the dispatch

¶ Summary

The institutional elements form the centrepiece of Bilateral III. They are intended to modernise the five existing single market agreements and make them fit for the future. The chosen sectoral approach -- as opposed to a horizontal framework agreement -- embeds the institutional provisions directly in the individual agreements. This preserves the proven bilateral structure and avoids a superordinate framework.

¶ The five single market agreements concerned

The institutional elements are integrated in the form of Institutional Protocols (IP) into the following existing agreements:

No.	Agreement	Abbreviation	In force since
1	Agreement on the Free Movement of Persons	AFMP	2002
2	Agreement on Land Transport	ALT	2002
3	Agreement on Air Transport	AAT	2002
4	Agreement on Mutual Recognition of Conformity Assessments	MRA	2002
5	Agreement on Trade in Agricultural Products	Agriculture	2002

The new health agreement contains analogous -- but not identical -- institutional provisions.

¶ Sectoral approach rather than framework agreement

The Federal Council deliberately chose not to conclude a horizontal framework agreement (like the failed Institutional Agreement (InstA) of 2021). The sectoral approach offers the following advantages:

Flexibility: Each agreement can receive specific adaptations
Proven structure: The bilateral architecture is preserved
No super-guillotine: There is no guillotine link between existing and future agreements
Targeted modernisation: Only the five single market agreements are institutionally strengthened

¶ The seven thematic areas

The institutional protocols cover seven thematic areas:

¶ 1. Preamble

Reaffirmation of the foundations of bilateral cooperation and the objectives of the institutional elements.

¶ 2. Dynamic adoption of law (Decision Shaping)

Obligation to adopt relevant EU legal developments in a timely manner, combined with participation rights in lawmaking (→ Decision Shaping and participation).

¶ 3. Interpretation, application and monitoring

Uniform interpretation, two-pillar model for monitoring (→ Interpretation, application and monitoring).

¶ 4. Dispute settlement

Parity arbitration panel with limited role of the CJEU (→ Dispute settlement and arbitration panel).

¶ 5. Financial contribution

Participation in EU agencies and activities (→ Financial contribution).

¶ 6. Final provisions

Entry into force, termination, transitional provisions.

¶ 7. Further provisions

Joint Committees (JC), scope of application, rights and obligations of the contracting parties.

¶ Fundamental principles

Principle	Meaning
No automatism	Each adoption of law requires an individual decision by Switzerland
No super-guillotine	Existing and future agreements are not linked
Two-pillar monitoring	Switzerland and the EU each monitor independently on their own territory
Parity arbitration panel	Balanced composition, CJEU only for EU law questions
Full right of referendum	Art. 136 para. 2 Federal Constitution is fully preserved
Sectoral rather than horizontal	Institutional provisions anchored individually in each agreement

¶ Consultation

The institutional elements were received predominantly positively in the consultation. Main demands:

Stronger participation of the cantons in the dynamic adoption of law
Enhanced information rights of Parliament in Decision Shaping
Transparency towards the public regarding EU legal developments

The Federal Council responded to these demands with concrete accompanying measures:

Confederation-cantons agreement analogous to Schengen/Dublin (Art. 5a FCPFA)
New Art. 152a ParlA as lex specialis for parliamentary participation
Monitoring and evaluation per legislative period
Transparency platform (new Art. 40a GAOA) for the publication of all relevant EU documents