The semantics of dynamic alignment: on the need for consistent terminology about EU relations with non-member Western European countries

Though similar legal phenomena are studied across Western European countries outside the EU, the terminology is sometimes inconsistent. This post outlines and analyses some terminological inconsistences in legal scholarship and official documents regarding dynamic alignment across non-EU Western European countries. It also argues that a more homogeneous terminology might foster the flow of ideas across non-EU Western European countries facing similar situations relating to the europeanisation of their national legislation.

Author: Nicolas Kurek

Specialists in the field of legal relations between non-member Western European States and the EU are increasingly consulted in the media and by policymakers. This is driven by discussions about the reset in EU-UK relations, those about Switzerland’s Bilateral III Agreement Package, the vote on a possible reopening of EU accession proceedings by Iceland and – maybe also – Norway, as well as the prospective ratification of the new EU-Andorra/San Marino Association Agreement. In this context, experience from the relations between one non-member Western European State and the EU can be informative when thinking about the nature of the relations the other non-member countries want to have with the Union. And yet, the terminology used in different documents, and by various specialists, is largely inconsistent.

‘Dynamic alignment’ versus ‘dynamic regulatory alignment’

The term dynamic alignment comes from the EEA context, where it designates the right and obligation of the EU and the EEA EFTA States to incorporate relevant EU legal acts into the annex to the EEA Agreement, as and when such acts are adopted in the Union. This process is regulated by Articles 102 and 103 of the Agreement. In the context of Switzerland’s Bilateral III Package, the Commission also uses the term ‘dynamic alignment’ to designate an equivalent institutional element that would be newly introduced in certain agreements between Switzerland and the Union. Curiously, in the context of the Andorra and San Marino Association Agreements, essentially the same legal instrument is referred to by the term ‘dynamic regulatory alignment’ in the European Commission’s explanatory memorandum. This is also an expression found in the literature on the Protocol on Ireland/Northern Ireland - Windsor Framework to the UK’s Withdrawal Agreement from the European Union (Protocol/Windsor Framework).

One may ask why the Commission itself sometimes uses the term ‘dynamic alignment’ and sometimes ‘dynamic regulatory alignment’. Given the sensitivity of the topic in the United Kingdom when the Northern Ireland Protocol/Windsor Framework was negotiated, one explanation could be that the focus on the regulatory character of the alignment sought to terminologically diminish the alleged negative impact of the mechanism on the UK’s sovereignty in Northern Ireland. However, as no concrete evidence of such an intention is publicly known, this explanation remains speculative and could be wrong. Another possible reason could be that this terminology was negotiated between the EU and the other contracting party to the relevant agreement. The most likely explanation, however, is that no specific intention lies behind this difference in terminology. Rather, one term might simply have been used in one context and a slightly different one in another, and it remained so, as no objections were raised.

Other than being slightly confusing, there are no apparent consequences to using both ‘dynamic alignment’ and ‘dynamic regulatory alignment’. This, however, is not the case for other existing terminological differences in the legal literature of various non-member Western European States.

‘Dynamic alignment’, ‘automatic alignment’ and ‘automatic dynamic alignment’

In the Swiss literature, a distinction is made between dynamic alignment and automatic alignment. Alignment is dynamic as opposed to automatic notably because it requires an express decision by Switzerland and the EU, which must be approved by both Contracting Parties in accordance with their internal procedures before it can enter into force. By contrast, automatic alignment would entail applicability of an EU legal act in the non-member State upon adoption in the EU and without any action on the part of that non-member State. This distinction is important in the Swiss political context, as opponents of broader integration claim that the type of alignment foreseen in the newest Bilateral III Package would be automatic. In response, the government, proponents of the Package and most legal scholars contend that the alignment is only ‘dynamic’.

In light of the above, the phrase ‘automatic dynamic regulatory alignment’, which can be found in the literature relevant to the Northern Ireland Protocol/Windsor Framework to the UK’s Withdrawal Agreement, appears as a contradiction in terms to a Swiss reader. And yet, if one considers that dynamic alignment refers to the right and obligation of the EU and a non-member Western European State to incorporate relevant EU legal acts into agreements – or put more broadly, achieve a situation in which an EU legal act applies in a non-member State and this is recognised by the EU - as and when these acts are adopted in the Union, then ‘automatic alignment’ would actually be a specific form of dynamic alignment, making the phrase ‘automatic dynamic alignment’ not incorrect. As a matter of fact, a more precise solution in Switzerland could also possibly be to distinguish between ‘dynamic alignment in a wider sense’, which would include both ‘automatic alignment’, i.e. a form of alignment that does not require any active agreement from the non-member Contracting Party, and ‘dynamic alignment in a narrower sense’, which would designate the requirement to incorporate an EU legal act following a Joint Committee decision or notification procedure, as is notably foreseen in the EEA Agreement, the Bilateral III Package as well as the various Schengen Association Agreements. For reasons of practicability and clarity, however, sticking to the simpler distinction between ‘dynamic alignment’ on the one hand and ‘automatic alignment’ on the other will often remain the preferable solution.

‘Autonomous adoption of EU law’ rather than ‘unilateral’ or ‘voluntary’ dynamic alignment’

In the context of the House of Lords inquiry on dynamic alignment, a distinction was drawn between ‘unilateral’ or ‘voluntary’ dynamic alignment and ‘bilateral’ dynamic alignment. According to the Hansard Society ‘voluntary dynamic alignment’ is at hand ‘where a party unilaterally chooses to keep pace with another party’s rules in a particular area’. In turn, dynamic alignment is bilateral ‘where there is a binding commitment to align, arising from an international agreement’. The Hansard Society concludes that ‘dynamic alignment is best understood as a spectrum. At one end lies a highly integrated model: automatic updates, immediate domestic incorporation and strong enforcement mechanisms. At the other end of the spectrum is a purely voluntary approach, where alignment is discretionary and therefore unenforced.’ It is very unlikely that a Swiss lawyer would have ever made this statement.

In Swiss legal thinking, what is described as – on the one hand – ‘voluntary’ or ‘unilateral’ dynamic alignment and – on the other hand ‘bilateral’ dynamic alignment are completely different concepts, which do not belong under the same umbrella term of ‘dynamic alignment’. As a matter of fact, no good equivalent of the word “alignment” exists in German, while the word ‘alignement’ hardly ever appears in the French-speaking literature to bilateral law. What is currently being referred to as ‘bilateral dynamic alignment’ in the UK is called ‘dynamische EU-Rechtsübernahme’ and/or ‘reprise dynamique du droit de l’UE’ in Switzerland. The best possible literal English translation would be that of ‘dynamic takeover’ or EU law. Speaking with images, it is as if a Swiss hand caught an EU legal act and extended its territorial scope by bringing it over to Switzerland. At this moment, this mechanism is in place in only a handful agreements between Switzerland in the EU. However, its generalisation to all agreements granting Switzerland sectoral participation in the EU internal market is one of the most important but also most controversial aspects of the Bilateral III agreement package, which remains to be ratified. In turn, what British experts refer to as ‘voluntary’ or ‘unilateral’ dynamic alignment falls under the notion of ‘autonomous adoption of EU law’ (sometimes also called autonomous adaptation or implementation), which has been practiced for almost 35 years, since Switzerland refused joining the European Economic Area in a 1992 referendum. This doctrine of autonomous adoption is not perceived as particularly controversial in the legal community and is largely absent from the public debate. Simply put, the concepts of ‘voluntary’ and ‘bilateral’ dynamic alignment appeared at completely different times in the Swiss legal system under completely different designations.

Using essentially the same expression of ‘dynamic alignment’ to designate two fundamentally different concepts (dynamische Rechtsübernahme/dynamic alignment and a form of autonomous adoption) risks negatively affecting one of them through the bad reputation of the other. Concretely, critics argue that (bilateral) dynamic alignment hurts a country’s sovereignty. This criticism risks being levelled against autonomous adoption, if it is referred to as (unilateral) dynamic alignment. However, autonomous adoption poses less of a threat to sovereignty, as it by definition covers situations where a non-member State aligns with EU law without being legally required to do so.

The way forward

As debates on relations with the EU are gathering momentum in non-member Western European States, it is crucial that all relevant actors speak the same language. Homogeneous terminology would make it easier to access literature that already exists in one country on a concept that is new in another. For example, Swiss literature on the interpretation of autonomously adopted EU law might prove useful when trying to understand how to interpret assimilated EU law in the UK. Being careful about keeping a homogeneous terminology is even more important at this time, as numerous new publications are being released on subjects relating to bilateral legal relations between the EU and non-member Western European Countries, notably in the UK. These documents are often easily available on the web and can be consulted by a wider audience, simply because they are written in English - a language more widely spoken than the national languages of the other non-member Western European States. It is also crucial for the Commission to be consistent in the terminology it uses. In the meantime, the interested public must be aware of the existence of numerous terminological inconsistencies and remain attentive to which concept they are actually informing themselves about when consulting documentation that uses a specific term. As is often the case in life, the right words are key!

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About the Author

Nicolas Kurek is a PhD candidate at the University of Zurich's law faculty.

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How to cite

Kurek, Nicolas (2026): The semantics of dynamic alignment: on the need for consistent terminology about EU relations with non-member Western European countries. Blog. EFTA-Studies.org.