Is Switzerland Not Just Any Third Country? EU Unilateralism in the Face of the Linkage Agreement on Emissions Trading (Sebastian Meyer)

Before concluding the bilateral agreement linking the Swiss and the European Union’s (EU) emissions trading schemes (ETS), the EU excluded Switzerland from the scope of the moratorium suspending the application of the EU ETS to most third countries. This paper argues that the EU refused to treat Switzerland like other third countries because of concerns for the functioning of the internal market. Next, it is submitted that this differential treatment was insufficiently justified in view of the ongoing bilateral negotiations. Finally, this paper is critical of the recent ruling of the Court of Justice of the EU («Court») on the validity of the moratorium, challenged by one of the affected Swiss airlines. By rejecting the claim on the basis of the EU legislature’s policy freedom in external relations, the Court demonstrated judicial restraint. However, it could and should have patrolled the boundaries of the bilateral law more thoroughly.