Reference to EC law and ECJ case law Sample Clauses

Reference to EC law and ECJ case law. The Preamble of the AFMP states that the Contracting Parties intend to introduce the free movement of per- sons “on the basis of the rules applying in the EC”. Art. 16(1) of the AFMP states that the Contracting Parties will take all measures necessary to ensure that rights and obligations “equivalent to those contained in the legal acts of the EC” to which reference is made in the Agreement (acquis communautaire). Under Art. 16(2) of the AFMP, insofar as the application of the Agreement involves “concepts of Community law”, account is taken of the relevant case law of the ECJ “prior” to the date of its sig- nature.117 Specifically, Art. 16(2) of the AFMP states that case law after date of signature will be brought to Switzerland’s attention. At the request of either Con- tracting Party, a Joint Committee determines the impli- cations of this case law. (1) of the Vienna Convention, a treaty should also be interpreted in good faith and in the light of its object and purpose. Accord- ingly, ECJ case law after the date of signature is taken into account, insofar as it is required for an interpreta- tion in good faith and the objective of the AFMP.122 Even though the articles on the principle of equal treat- ment as set out in the AFMP are not always identical to Arts. 39, 43 and 49 of the EC Treaty, in the author’s view, an interpretation in good faith and in the light of the object and purpose of the AFMP means that the Agree- ment generally provides for measures equivalent to those in the EC Treaty in respect of the free movement of workers, the right of establishment and the freedom of services. The right of establishment is, however, limited to individuals and the freedom to provide services appears to be limited to brief periods not exceeding 90 days of work in a calendar year. As noted in 4.1.2., the AFMP also takes account of the right of entry and resi- dence of persons without an economic activity similar to Art. 18 of the EC Treaty that is not linked to an economic factor. In a recent Austrian case decided by the Independent Finance Court, a worker, who was resident in Austria but employed by a Swiss company, was denied an exemption for third country income on the grounds that the he was employed by a Swiss rather than an Austrian company.123 Specifically, the Court held that Arts. 39, 43 and 49 of the EC Treaty apply to Swiss territory by virtue of the AFMP. ECJ case law on the freedom of establishment of com- panies does not apply under the AFMP. A...