Where is the Federal Council’s foreign and energy policy heading to?

New agreement with the EU – boon or bane?

by Dr iur Marianne Wüthrich

In summer 2015, the EU launched the total centralisation of the internal electricity market. Some Swiss Federal councilors and their management team were in their starting gates to dock Switzerland with an electricity market deal – which has been negotiated since 2007 – on the monumental EU electricity exchange. Electrical energy as a vital part of the Public service and in particular the Swiss hydroelectric power would get out of the hands of the Swiss cantons and municipalities.
This didn’t happen. In April 2015 Brussels made clear: An agreement on electricity market is only feasible if before an Institutional Framework Agreement is negotiated – this also applies to the conclusion of other new agreements between Switzerland and the EU (“Tages-Anzeiger” from 27 April 2015; “Neue Zürcher Zeitung” from 28 April 2015).
Thus, the matter was closed for Switzerland for the moment. Because everyone knew: A framework agreement with automatic transfer of EU law and the Court of Justice of the European Union (ECJ) as the Supreme Court has no chance at the people. Foreign judges meet persistent resistance of the Confederates since their first alliance of 1291 until today.
On 25 March 2017, Federal Councillor Didier Burkhalter addressed the media quite unexpectedly: The EU was ready to accommodate Switzerland concerning the Institutional Framework and to make “concessions”, what would “expand greatly the room for manoeuvre in Switzerland at the application and transposition of EU legislation”(“Tages-Anzeiger” from 25 March 2017).
Of course, we as voters are most interested in: How are the “concessions”of the EU legally and politically to classify? Does Switzerland need at all new agreements with the EU? Does it need in particular an agreement on the electricity market? And as a central issue above all: How the small State of Switzerland will deal with a superpower that is not willing to lead contractual relations equal to equal and to comply existing agreements on its part?

Superpower EU is not really ready to compromise but tells us how to proceed

First, let us consider precisely the two “concessions” of the EU – if at all possible today.
To the first concession: The case-law of the European Court of Justice should not apply for all bilateral agreements with Switzerland, but only for “agreements that rule the market access, so the access of capital, goods and people to the EU Single Market.” In relation to other treaties an arbitral tribunal could be appealed (Weltwoche No 13 from 30 March 2017).
In plain language: the European Court of Justice as the final arbiter would decide most and the most important issues. In addition, the ECJ itself defines what contracts are “market access relevant”. – If the highest EU Court claims the prerogative in relation to its own jurisdiction for itself, the whole “concession” is on shaky constitutional criteria.
To the second concession: New is that the EU does no longer want to suspend whole agreements if Switzerland refuses to abide decisions of the European Court of Justice. Instead, the Joint Committee in which also the Swiss will be should decide so-called “Compensatory measures” (Weltwoche No. 13 from 30 March 2017).
We have already had some experience with “Compensatory measures” to the EU leaders liking. Remember the expulsion of Switzerland from “Horizon 2020” and “Erasmus” after the referendum to control immigration of February 2014 (see “Switzerland as a research and training center and the EU bureaucracy”, Current Concerns No 26/27 from 5 December 2016). At that time the EU suspended agreements contrary to contract that have no functional ties to the free movement of persons. Furthermore, as is well known, the immigration was not restricted by the National Council and Council of States, but is still unchanged. – Just embarrassing for the EU is that the Swiss partners are no longer fond of connecting to Erasmus since they have realised that it’s cheaper and more effective running without the bureaucracy in Brussels.
For us, reliable and fair contractual partners are different. So how much can we give on the new “concessions” from Brussels?

Brussels is as of now again negotiating with Switzerland – whether this is so good for us?

On 11 April, the Foreign Affairs Committee (FAC) of the National Council took note that the Federal Council and the EU want to resume all suspended negotiations on pending dossiers. According to Federal Councillor Didier Burkhalter, there is “no predefined schedule” for the end of the negotiation (FAC-N Media Communication of 11 April 2017). So after all not harum-scarum clinch everything? The electorate would not accede anyway.

Dossiers to which negotiations are already underway

“Switzerland and the EU are currently negotiating the electricity dossier, institutional issues, Switzerland’s participation in the EU’s Creative Europe program, emissions trading and the dossier on agriculture, food safety, product safety and public health.”
Further planned agreements are, for example, “peace promotion”, i.e. participation in the EU wars within the framework of the “Common Defense and Security Policy”. Here Switzerland, which is bound to neutrality, has certainly no business! Or the so-called “Swiss Enlargement Contribution”, in plain English, further billions in the EU Cohesion Fund, by way of thanks for the “considerable advantages” which Switzerland is supposed to have through the bilateral treaties … (cf https://www.eda.admin.ch/dea/de/home/verhandlungen-offene-themen/verhandlungen.html)
Energy Strategy 2050,

Electricity Market and Institutional Framework Agreement

The new Energy Law (EnG), on which we will vote on 21 May, will focus on the replacement of nuclear power with the new renewable energies (primarily solar and wind power) and on their financing as well as the promotion of energy saving measures.
The former State Councillor Vreni  Spoerry (FDP Zurich), wrote on that in a readers letter: “[…] The big problem with the new Energy Law (EnG) is precisely that it can not guarantee a secure power supply. We have too little domestic electricity especially in the winter months. […] For this reason, when the EnG is accepted, more must be imported as long as Germany and France are able to supply us with electricity.” (“Neue Zürcher Zeitung” from 31 March 17)
… as long as they are able – or as long as they are not repudiated by Brussels! The EU leaders could exploit the growing Swiss electricity gap and insist on the conclusion of an electricity market agreement, combined with full liberalization. Although the EU energy logistics is dependent on the north-south hub Switzerland, unfortunately we can not count on a tough Swiss negotiation conduct, which would bring this trump card into play persistently. As a result, the carefully cultivated public service of Switzerland, the federalistically designed sovereignty of cantons and municipalities over the hydropower and the effective vigilance of the sovereign would be destroyed in a whirl of a centrally controlled electricity exchange.
In its message on the EnG, the Federal Council points out that this is a further step towards the ultimate goal of its overall energy policy over the last ten years: the conclusion of an electricity market agreement with the EU and thus the complete liberalization of electricity supply: “The opening of the Swiss electricity market is regulated in the electricity supply law and takes place in two stages. The already effective partial market opening is limited to final consumers with an annual consumption of at least 100 MWh. […] The full opening of the market is to be made later by a federal decision. This federal decision is subject to the optional referendum. […] The measures envisaged in the first package of measures to implement the energy strategy 2050 are, from today’s point of view, compatible with the complete opening of the electricity market. “(Federal Gazette 2013, p. 7583)
The EU would bind an institutional framework agreement, as it had already noted two years ago, to the electricity market agreement. Recently, the EU Council in person has been intensifying the pressure.
“The Council stresses the common understanding between the EU and Switzerland about the need to finalise the negotiations on the institutional framework agreement as soon as possible. Its conclusion will allow the EU-Swiss comprehensive partnership to develop to its full potential.” [Council of the EU. Council conclusions on EU relations with the Swiss Confederation. Press release 93/17 of 28.02.2017. Point 5] http://www.consilium.europa.eu/en/meetings/env/2017/02/28/
Comprehensive partnership? It is advisable to read this press release from the EU Council. It contains a long list of demands that Switzerland has to fulfill, as well as censors: praise for submissive obedience, blame for unfulfilled orders. There is no word for a “partnership” in the sense of performance of duty, accomodation and compromiseability of both sides. Not what a sovereign state wants as a partnership with other states. The dossiers from the centralist bureaucratic colossus simply do not fit into the federalist and direct-democratic structure of the small country Switzerland, with which we have gone very well for centuries, especially in dealing with the other peoples and states.     •

The EU Council wants to integrate Switzerland completely

Council of the European Union. Council conclusions on EU relations with the Swiss Confederation. Press release 93/17 from 28/02/2017

6. Switzerland is the EU‘s third largest economic partner and the EU is Switzerland‘s main trading partner. While today the bilateral trade relationship generally works smoothly to the benefit of both partners, there are a number of restrictions on access to the Swiss market for operators from the EU, notably in the agri-food and services sectors. These restrictions need to be addressed in order to remedy asymmetries in bilateral economic relations. […]
7. The Council takes note of the adoption of a new legal basis for the financial contribution of Switzerland on 30 September 2016. This financial contribution is intended to reduce economic and social disparities in the EU and should be proportionate to the substantial benefits Switzerland draws from its participation in the Single Market. The Council encourages Switzerland to engage in the necessary discussions with the EU with a view to agreeing on the renewal of the financial contribution as soon as possible.
12. The Council appreciates the continued cooperation between the EU and Switzerland in the area of CFSP, in particular the positive participation of Switzerland in CSDP missions […]. The Council invites Switzerland to maintain and further improve its alignment with the EU‘s restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, and in view of Russia‘s actions destabilising the situation in Ukraine.