In this post Carl Baudenbacher of Monckton Chambers, London (former President of the EFTA Court 2003-2017) discusses the procedure for CJEU interpretation.
I. Introduction
In 1997, the following provision was inserted into the Amsterdam version of the EC Treaty:
“1. Article 234 shall apply to this Title (sc. Title IV) under the following circumstances and conditions: where a question on the interpretation of this Title or on the validity or interpretation of acts of the institutions of the Community based on this Title is raised in a case pending before a court or a tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon.
2. In any event, the Court of Justice shall not have jurisdiction to rule on any measure or decision taken pursuant to Article 62(1) relating to the maintenance of law and order and the safeguarding of internal security.
3. The Council, the Commission or a Member State may request the Court of Justice to give a ruling on a question of interpretation of this Title or of acts of the institutions of the Community based on this Title. The ruling given by the Court of Justice in response to such a request shall not apply to judgments of courts or tribunals of the Member States which have become res judicata.”
The political function of Article 68(3) EC Amsterdam was, above all, to make it possible, in the newly communitarised field of what was then Title IV EC (visas, asylum, immigration and the free movement of persons), to obtain a centrally steered and politically controlled clarification of questions of interpretation. After Amsterdam, the fields of immigration, asylum and border control were regarded as particularly sensitive. The provision did not allow a request for interpretation to be made by the parties to the proceedings or by any national court, but only by the two political institutions, the Council and the European Commission, or by a Member State (see, e.g., Oliver Dörr/Ute Mager, Rechtswahrung und Rechtsschutz nach Amsterdam — Zu den neuen Zuständigkeiten des EuGH — Archiv des öffentlichen Rechts, Vol. 125, No. 3 (2000), pp. 386-427.).
Article 68(1) EC Amsterdam, like the classic preliminary-ruling procedure, was linked to pending national proceedings. The reference question was functionally connected to a specific legal dispute, even though only courts of final instance were allowed to refer. Article 68(3) EC Amsterdam, by contrast, permitted a reference without any connection to a specific case before a national court. The Council, the Commission or a Member State could submit a pure question of interpretation to the Court of Justice. It was therefore a form of abstract review; there did not have to be any specific proceedings pending in which the question was relevant to the decision. The interpretative question could be raised independently of any individual set of facts.
In other words, the binding ruling of the Court of Justice was aimed at the objective interpretation of the legal acts under Title IV, rather than deciding a particular case.
The fact that the ruling of the Court of Justice was not to apply to “judgments of courts or tribunals of the Member States which have become res judicata” shows that the ruling did not operate retroactively with regard to a specific national case, but rather had a prospective guiding function. Had it been a genuine form of concrete review of an individual case, the focus would have been on its binding effect in the proceedings from which the question arose.
II. EU–Switzerland treaty package
Article 68(3) EC Amsterdam was never applied and was repealed when the Treaty of Lisbon entered into force on 1 December 2009. The provision has largely faded from public memory. It now appears, however, to be resurfacing in the EU–Switzerland package of treaties signed on 2 March 2026. This becomes clear when one compares the triggering event that leads to proceedings before the CJEU with that contained in the earlier draft.
To understand this, one must bear in mind that the negotiations on the conclusion of the package of treaties lasted for more than ten years: from 2014 to 2025. The original plan was for a new institutional agreement to serve as an overarching framework—that is, a horizontal agreement—spanning several sectoral treaties. It was envisaged that, in a specific case of conflict, the Joint Committee would request the CJEU to provide an authoritative interpretation. Because Swiss parliamentarians considered the competence of the court of the other side politically risky in a referendum, the European Commission proposed, at the end of 2017, the dispute-settlement model of the EU Association Agreements with the former Soviet republics Armenia, Georgia, Moldova and Ukraine, which aspire to EU accession. Under that mechanism, a dispute between Switzerland and the EU was to be decided by an “arbitral tribunal”, which, however, would be obliged, where EU law or treaty law identical in substance were at issue, to obtain a binding ruling from the CJEU. In March 2018, Switzerland accepted this model, which tied the jurisdiction of the CJEU to the existence of a concrete dispute. Article 10(3) of the draft “Institutional Framework Agreement” from the end of 2018 read as follows:
“If the dispute raises a question concerning the interpretation or application of a provision […], the arbitration tribunal shall request the Court of Justice of the European Union to give a ruling. The ruling of the Court of Justice of the European Union shall be binding on the arbitration tribunal.” (My translation, emphasis added. The draft is not available in English.)
Although the Swiss Government, the Federal Council, agreed to this provision, Switzerland did not sign the 2018 draft because it disliked certain material provisions concerning wage protection, the Citizen’s Rights Directive and state aid control. After an interruption in the negotiations in May 2021, the parties agreed on a vertical approach under which the dispute-settlement mechanism was to be regulated separately in each agreement. At least officially, Switzerland hoped that this would make it possible to negotiate an exception, here and there, to the subjection to the CJEU. Supposedly that objective was achieved, and on 2 March 2026 the President of the Swiss Confederation and the President of the European Commission, Ursula von der Leyen, signed a package of eight sectoral treaties. In seven of them, the mechanism involving the pro forma arbitral tribunal and the CJEU is provided for.
The domestic political debate in Switzerland has so far focused on the question whether the arbitral tribunal has any degree of independence in deciding whether to seize the CJEU and whether to follow its interpretive ruling. In view of the upcoming referendum, the Swiss Government wants people to believe that there is such room for manoeuvre.( Dokumentvorlage Botschaftstext für Word 2013.) This position is illusory, it is incompatible with the principle of the autonomy of Union law and the resulting interpretative monopoly of the CJEU (Vernehmlassungsantwort_Carl_Baudenbacher.pdf.).
III. Abstract political reference procedure?
What has gone unnoticed in the public sphere, however, is a shift away from the dependence of proceedings before the CJEU on an individual case and towards an abstract reference procedure, in which the CJEU would provide its interpretation without the background of a concrete or genuine dispute. Article 10 of the Institutional Protocol to the Free Movement of Persons Agreement and Article 32 of the Electricity Agreement now state, for example, under the heading “Procedure in the event of difficulty of interpretation or application”:
“1. In the event of difficulty of interpretation or application of the Agreement or of a legal act of the Union to which reference is made in the Agreement, the Contracting Parties shall consult each other within the Joint Committee in order to find a mutually acceptable solution. To this end, all useful elements of information shall be provided to the Joint Committee to enable it to make a detailed examination of the situation. The Joint Committee shall examine all possibilities that allow the proper functioning of the Agreement to be maintained.
2. If the Joint Committee is not able to find a solution to the difficulty referred to in paragraph 1 within three months of the date on which the difficulty was submitted to it, either of the Contracting Parties may request that an arbitral tribunal settle the dispute in accordance with the rules laid down in the Appendix.
3. Where the dispute raises a question concerning the interpretation or application of a provision referred to in Article 7(2), and if the interpretation of that provision is relevant to the settlement of the dispute and necessary to enable it to decide, the arbitral tribunal shall refer that question to the Court of Justice of the European Union.
Where the dispute raises a question concerning the interpretation or application of a provision that falls within the scope of an exception from the dynamic alignment obligation referred to in Article 5(7), and where the dispute does not involve the interpretation or application of concepts of Union law, the arbitral tribunal shall settle the dispute without referral to the Court of Justice of the European Union.
4. Where the arbitral tribunal refers a question to the Court of Justice of the European Union pursuant to paragraph 3: (a) the ruling of the Court of Justice of the European Union shall be binding on the arbitral tribunal; and (b) Switzerland shall enjoy the same rights as the Member States and the institutions of the Union and shall be subject to the same procedures before the Court of Justice of the European Union, mutatis mutandis.
5. Each Contracting Party shall take all measures necessary to comply in good faith with the arbitral tribunal’s decision.
The Contracting Party that has been found by the arbitral tribunal not to have complied with the Agreement shall inform the other Contracting Party through the Joint Committee of the measures it has taken to comply with the arbitral tribunal’s decision.
6. The safeguards set out in Joint Declaration on refusing social assistance and terminating residence prior to the acquisition of permanent residence and Joint Declaration on the notification of the taking up of employment, annexed to the Agreement, shall be taken into consideration in good faith in the context of resolving the disputes submitted to the Joint Committee.
The first subparagraph shall apply for as long as, and to the extent that, the safeguards remain compatible with the relevant legal acts of the Union as integrated into the Agreement. The safeguards shall not affect the application of Article 5(1) of this Protocol.”
The same provision is contained in other treaties of the package. This may mean that the European Commission could demand a binding interpretation by the CJEU without having any specific occasion for doing so and without having to set one out. In other words, the new text may mean that the Commission can, at any time, seek a ruling from its own court, the CJEU, on doubtful questions whenever it suits it politically. Whether a concrete conflict exists would then be immaterial. The Commission could, as it were, order binding interpretations from the CJEU in advance and keep them in reserve. The concrete dispute-settlement procedure, in which the EU and Switzerland would stand opposite one another as antagonists, would in substance at least partly be transformed into an abstract preliminary-ruling procedure. What is more, the Commission could in the discussions in the Joint Committee operate by threatening to refer the matter to the CJEU, regardless of whether a dispute in the strict sense exists.
Of course, the relevant provisions also refer to a “dispute”. However, the changes to the heading and to paragraphs 1 and 2 clearly indicate that the Contracting Parties also wished to provide for the possibility of an abstract procedure. In any event, it would not be for a neutral court to decide the matter, but for the CJEU, which would have a monopoly on interpretation with regard to the Treaties.
This interpretation is also supported by a comparison with the dispute settlement provision of the EEA Agreement, Article 111. That provision merely states that the CJEU may be referred to in the event of a “dispute”. For the sake of completeness, I would add that Article 111 of the EEA Agreement has remained and will remain a dead letter, because the CJEU could only be involved if the EFTA side were to agree to this in advance.
IV. Conclusions for Switzerland
Anyone familiar with the European Commission’s professional way of working will realise that this fundamental change can hardly be accidental. The provisions in question of the Institutional Protocol to the Free Movement of Persons Agreement and of the Electricity Agreement are reminiscent of Article 68(3) EC in the Amsterdam version of 1997.
Whether the Swiss negotiators were aware of what they were consenting to remains an open question. Both possibilities exist: that they were outmanoeuvred, and that they let matters take their course because they regard the package of treaties, contrary to the Federal Council’s explicit promise (79359.pdf.), as a point of no return on the road to the EU. Be that as it may, Switzerland would be more dependent on the integration policy of the Commission and the CJEU than Andorra or San Marino under their respective association agreements. In those cases, as a rule, there must be a connection to an individual case before the CJEU can come into play.
For the time being, one thing is clear: the supporters of the treaty package in the Swiss Government, the Federal Parliament, the export industry and academia, claim, with strange conceptual-juristic contortions, that the double majority of the people and the cantons is not required for the referendum because this is not a case of accession to a supranational organisation (Article 140(1)(b) of the Federal Constitution).(See, e.g., “Ständemehr ohne Verfassungsgrundlage?” online kaufen.) That thesis has always been wrong, because the interference with the constitutional order would go deeper than in the case of a supranational treaty. In a supranational treaty, sovereignty would be transferred to common organs that would be neutral vis-à-vis Switzerland. An example of such a treaty is the EEA Agreement. Under the treaty package EU-Switzerland, by contrast, the transfer would be made to the organs of the non-neutral opposing party, the European Union. The move from a concrete to an abstract interpretative procedure is a further reason why there is no way around the majority of the people and the cantons.
V. Conclusions for the United Kingdom
Under its recently resigned Prime Minister Keir Starmer, the UK pursued a policy of “dynamic realignment” to the EU. Initially, the country was to regain preferential access to the EU internal market in three sectors. Both sides agreed that the institutional prerequisite for this would be an interpretative monopoly of the CJEU. Although this was played down as merely a “role for the CJEU”, it is clear that the same mechanism accepted by the Swiss Government was meant (See Written evidence – DYN0010). Since it must be assumed that the EU would impose the same conditions on the UK as on Switzerland, it would most probably also insist on the abstract review mechanism independent of any dispute. Whether this would command a majority in the UK Parliament remains an open question.
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