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Lukas Bühlmann
After the referendum deadline expired unused in October 2009, the revised Federal Law on Technical Barriers to Trade (THG) came into force on 1 July 2010. The core of this revision relates to the unilateral introduction of the so-called “Cassis de Dijon” principle. Specifically, this means that, in future, cross-border movement of goods will become easier to the extent that, in principle, products that are in legal circulation in the EU / EEA can now also be sold in Switzerland without additional controls, even if they do not comply – either wholly or in part – with Swiss regulations. This opens up new possibilities for optimising production and distribution.
When marketing products, manufacturers and retailers must comply with a variety of technical regulations. Such product regulations serve, in particular, to protect health, the consumer, the environment and trading integrity. They can relate to the product itself (e.g. packaging and labelling); procedures (e.g. transportation and manufacturing); conformity assessment (e.g. product tests); or the approval of products (e.g. pharmaceuticals). In Switzerland alone, there are over 30 laws and more than 160 decrees at the federal level that contain technical regulations. Furthermore, if companies are also active internationally, there are countless additional, often varying rules and regulations. This inevitably leads to higher production and distribution costs and a delay in the importation of new products and hence to so-called technical barriers to trade. The purpose of the Federal Law on Technical Barriers to Trade (THG), therefore, is to create uniform principles in order to prevent, eliminate or reduce technical barriers to trade (see Article 1 THG).
By revising the THG and especially through the introduction of the “Cassis de Dijon” principle, in the interests of enhancing the attractiveness of the location and intensifying (price) competition, legislators aim to make access to the Swiss market much easier for companies based in the EU / EEA countries. In order to avoid reverse discrimination against national businesses, however, the principle was also introduced whereby Swiss manufacturers will in future have the choice to align their products to the technical requirements of Switzerland or to those of an EU / EEA country (see Article 16b THG). This can open up new opportunities for companies to optimise production and distribution, for which reason a detailed examination of the new situation is recommended.
As always, of course, in relation to the unilateral introduction of the “Cassis de Dijon” principle, provision was made for exceptions in various areas. These relate to foodstuffs in particular. Foodstuffs require authorisation from the Federal Office of Public Health for the first importation unless they meet the Swiss product regulations, even if they comply with the product requirements of the EU or one of its member states and are legally in circulation there. This authorisation is issued in the form of a general disposition and applies to similar foodstuffs, such that it can be invoked by both importers and domestic producers. In the case of foodstuffs there also exists the obligation to declare the country of origin. Other exceptions relate, for example, to medicines, the ban on phosphates in detergents, and the indication of alcohol content in alcopops.
Switzerland is introducing the principle unilaterally. This means that, for the time being, the EU does not recognise the equivalence of the corresponding Swiss legislation. This unusual step taken by Switzerland is linked to the fight against the perception of Switzerland as a so-called “island of high prices”.
Contact: Lukas Bühlmann
