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Swiss Single Market Law and its Enforcement

PRESENTATION @ EU DELEGATION FOR

NICOLAS DIEBOLD PROFESSOR OF ECONOMIC LAW

28 FEBRUARY 2017 overview

4 enforcement by ComCo

3 single market act . administrative federalism . principle of origin . monopolies

2 swiss federalism

1 historical background

28 February 2017 Swiss Single Market Law and its Enforcement Prof. Nicolas Diebold 2 historical background

EEA «No» in December 1992

strengthening the securing market competitiveness of access the swiss economy

28 February 2017 Swiss Single Market Law and its Enforcement Prof. Nicolas Diebold 3 historical background

market access competitiveness

«renewal of swiss market economy»

§ Bilateral Agreements I+II § Act on Cartels

§ Autonomous Adaptation § Swiss Single Market Act

§ Act on TBT § Public Procurement Acts

28 February 2017 Swiss Single Market Law and its Enforcement Prof. Nicolas Diebold 4 swiss federalism

26 cantons 2’294 communities

By Tschubby - Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=12421401 https://upload.wikimedia.org/wikipedia/commons/3/3e/Schweizer_Gemeinden.gif

28 February 2017 Swiss Single Market Law and its Enforcement Prof. Nicolas Diebold 5 swiss federalism – regulatory levels

products insurance banking medical services energy mountaineering legal services

https://pixabay.com/de/schweiz-alpen-karte-flagge-kontur-1500642/

chimney sweeping nursing notary construction security childcare funeral gastronomy handcraft

taxi sanitation

28 February 2017 Swiss Single Market Law and its Enforcement Prof. Nicolas Diebold 6 swiss federalism – trade obstacles

cantonal monopolies cantonal regulations procedures & fees economic use of public domain

«administrative federalism»

public public services procurement subsidies

28 February 2017 Swiss Single Market Law and its Enforcement Prof. Nicolas Diebold 7 single market act – overview

aims of the law

free movement movement of of equalaccess access to to equal access to public persons and and services services monopolized activities procurement markets

legal instruments

§ pple of recognition § principle of public tender § principle of origin

§ principle of non-discrimination

28 February 2017 Swiss Single Market Law and its Enforcement Prof. Nicolas Diebold 8 SMA: administrative federalism

example: federal act on medical professions • professional qualification requirements • personal requirements

requirements individually applied by cantons

license valid in license valid in license valid in canton canton canton

SMA: decision of one canton is binding for all others

28 February 2017 Swiss Single Market Law and its Enforcement Prof. Nicolas Diebold 9 SMA: principle of origin – right to market access

Canton of Canton of Canton of

no requirements licensing conditions licensing conditions - good reupte - good reupte - financial capacity - financial capacity - certificate of competence

- rules of home canton apply - simple, fast and free procedure

- rules of home canton apply - simple, fast and free procedure

28 February 2017 Swiss Single Market Law and its Enforcement Prof. Nicolas Diebold 10 SMA: principle of origin – restrictions

Canton of Zug Canton of Lucerne Canton of Aargau

no requirements licensing conditions licensing conditions - good reupte - good reupte - financial capacity - financial capacity - certificate of competence

restrictions only if

- no equivalence - public interest - proportional - not discriminatory

28 February 2017 Swiss Single Market Law and its Enforcement Prof. Nicolas Diebold 11 SMA: principle of origin

principle applies even…

§ …if profession/service «does not exist» at Canton of destination  prosthodontists  self-employed paramedic § …to requirements concerning the legal status  stock corporation for liberal professions § …to regulations concerning the exercise of an activity  employment of stagiaires § …to labour regulations § …to rules on sales modalities, e.g. internet sale of drugs

28 February 2017 Swiss Single Market Law and its Enforcement Prof. Nicolas Diebold 12 SMA: principle of origin – comparison to EU

Services directive 2006/123/EC

Commission draft, March 2004, article 16

Adopted version, article 16

28 February 2017 Swiss Single Market Law and its Enforcement Prof. Nicolas Diebold 13 SMA: monopolies

provider from cantons / communities other cantons legal monopolies, e.g. de facto monopolies, e.g. . chimney sweepers . special use of public . building insurance domain . taxi dispatch historical monopolies, e.g. monopoly = obstacle . emergency services . mining for ressources to movement . waste disposal transfer of right to use monopoly right to private person (concession) participation in tender must be in a call for tender

28 February 2017 Swiss Single Market Law and its Enforcement Prof. Nicolas Diebold 14 enforcement by ComCo

Competition Commission (12 members)

Secretariat director centres of competence CC law CC economics CC investigation CC communication CC international affairs construction products services infrastructure CC single market enforcement CartA enforcement SMA 28 February 2017 Swiss Single Market Law and its Enforcement Prof. Nicolas Diebold 15 legal instruments

§ investigation / recommendation re application of SMA  e.g. investigations Canton Berne, Waadt,

§ recommendation re cantonal laws  e.g. recommendation re taxi regulation in

§ on request of authorities: expertise  e.g. intercantonal agreement on regulation of security services

revision of SMA in 2006

§ complaint against decisions  e.g. ticino law on manufacturers

28 February 2017 Swiss Single Market Law and its Enforcement Prof. Nicolas Diebold 16 discussion further information

. Bundesgesetz über den Binnenmarkt (BGBM) vom 6. Oktober 1995 (Single Market Act), SR 943.02 . overview of practice available on ComCo website @ www.weko.admin.ch > Themen > Binnenmarkt > Praxis

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