"Foreign Judges" -- The Role of the CJEU

Summary: The role of the Court of Justice of the European Union (CJEU) in the dispute resolution procedure of the Bilateral Agreements III is emotionally charged. Critics speak of "foreign judges" deciding on Swiss matters. Supporters emphasise that the CJEU only interprets EU law -- it does not apply it -- and the arbitration tribunal remains parity-based.

---

¶ The Point of Criticism

¶ "Foreign Judges" -- the Argument

The CJEU is an institution of the European Union. In the dispute resolution procedure of the Bilateral Agreements III, it issues binding preliminary rulings on the interpretation of EU law (-> Dispute Resolution Procedure). Critics argue [1]:

• The CJEU is a partisan body: as an EU institution, it decides in the EU's interest, not neutrally
• The binding effect of the CJEU ruling on the arbitration tribunal restricts its independence
• There is a lack of reciprocity: no Swiss court decides on EU law questions in return
• Switzerland has no influence on the composition of the CJEU

¶ Political Dimension

The slogan "foreign judges" has deep roots in Swiss history -- it refers to the fundamental principle of self-determination and the rejection of foreign jurisdiction. The SVP has made this argument the central mobilisation tool against the Bilateral Agreements III [1].

---

¶ The Counter-arguments

¶ Limited Role of the CJEU

Prof. Astrid Epiney (University of Fribourg) emphasises that the role of the CJEU is clearly limited [2]:

The CJEU answers a legal question -- the arbitration tribunal decides the dispute. The proportionality review -- the most politically relevant assessment -- lies exclusively with the parity-based arbitration tribunal [2][3].

¶ CJEU as the "Court of the Single Market"

Prof. Epiney argues that the CJEU is not the "court of the opposing party" but the "court of the single market". Its task is to ensure the uniform interpretation of EU law -- a function from which Switzerland also benefits when participating in the single market. There are "no indications" that the CJEU systematically rules against Switzerland [2].

¶ Not for All Agreements

The CJEU is only called upon when a dispute concerns the interpretation of an EU legal act integrated into the agreements and this interpretation is relevant and necessary for the decision. Important exceptions [2]:

• Agriculture Agreement (tariff part): No CJEU in arbitration proceedings
• FMPA Additional Protocol (long-term residence): CJEU referral excluded
• Interpretation of exception provisions: Falls solely within the jurisdiction of the arbitration tribunal
• Provisional measures: CJEU effectively excluded (1-month deadline)

¶ Parallel to the EFTA Model

The EEA/EFTA states (Norway, Iceland, Liechtenstein) are subject to the EFTA Court, which follows CJEU case law. This system has been functioning for over 30 years [3].

¶ Swiss Procedural Rights

In the CJEU preliminary ruling procedure, Switzerland receives the same procedural rights as EU Member States and EU institutions. It can submit observations and present its position [2].

---

¶ Assessment

---

¶ Sources

[1] UNSER RECHT (2026). Bilateral III -- what is it about? Information platform. [Open Access]

[2] Prof. Astrid Epiney (2025). Dispute resolution under the Bilateral III. UNSER RECHT / Jusletter. [Open Access]

[3] FDFA (2026). Fact sheet: Institutional elements. Federal Department of Foreign Affairs. [Open Access]

---

Last updated: March 2026