Contributed by Philipp Goz of Schellenberg Wittmer Ltd

As part of our “Brexit and MSE” series, today we look at another possible model of a post-Brexit trading relationship between the UK and the EU based on the one between the EU and Switzerland.

EFTA

Switzerland is a founding member of the European Free Trade Association (EFTA), but voted against becoming a member of the European Economic Area in 1992.

The EU is Switzerland’s most important trading partner. Switzerland has a significant number of bilateral agreements with the EU which provide access to the single market for many of its industries and which also require the free movement of people. Switzerland agreed to take on certain aspects of EU legislation and in many respects follows legislative changes on a EU level.

In 2014, Swiss voters agreed in a referendum to restrict immigration and free access to the labor market in Switzerland. While no such restriction has yet been implemented in Swiss legislation, the EU reacted swiftly, stalling agreements and freezing participation (e.g. in education projects). The EU repeatedly ruled out any measures that would restrict the free movement of people, arguing key bilateral treaties with Switzerland could be put at risk. So far, it is not yet clear what the future will bring, both in terms of future Swiss national legislation restricting free movement of people and regarding Switzerland’s bilateral treaties with the EU.

State Aid

Switzerland is not a member state of the EU and thus European state aid rules do not apply. Switzerland has no specific legislation regarding state aid.

Audio Visual Media Services Directive (“AVMSD”)

As Switzerland is not a EU member state, the AVMSD does not apply directly. However, Switzerland agreed to apply key features of the AVMSD in a bilateral treaty with the EU in order to become part of the MEDIA programme of the EU. These included:

 

  • Switzerland shall ensure freedom of reception and retransmission on its territory with regard to television broadcasts under the jurisdiction of a Member State of the Community.
  • Switzerland shall have the right to suspend retransmission of broadcasts from a television broadcasting organisation under the jurisdiction of a Member State of the Community which has manifestly, seriously and gravely infringed the rules on the protection of minors and human dignity.
  • Switzerland shall have the right to require broadcasters under its jurisdiction to comply with more detailed or stricter rules in the fields coordinated by the Audiovisual Media Services Directive provided that such rules are proportionate and non-discriminatory.

Ever since Switzerland’s vote on restricting immigration in 2014, the EU has suspended the Switzerland’s participation in the MEDIA programme.

In the meantime, Switzerland implemented temporary measures to compensate for the non-participation in the MEDIA programme. The measures are designed to mirror the programme in its major aspects and allows financial support for film project developments, film distribution, for European educational programmes as well as film festivals and markets. The budget for 2015 was 5 million Swiss Francs. There’s a total of six different support programmes open to applicants of various groups. As of May 2016, Switzerland and the EU are in negotiations about a participation of Switzerland in the “Creative Europe” programme, which is a sub-programme of the MEDIA programme. So far, no decision has been made.

Data Protection

The Swiss data protection legislation is currently under revision. A first draft of the proposed amended legislation is expected to be circulated in August 2016. The General Data Protection Regulation (GDPR) builds one of the key elements and developments supposed to be taken into consideration. This may result in the potential implementation of similar provisions to the GDPR, most likely complemented by a “Swiss Finish”, reflecting some of the peculiarities under Swiss data protection law.