Bilateral negotiations Switzerland-EU

Bilateral negotiations Switzerland-EU

Press Conference 24 June 2015

A lot of fog and little information about the plans of the Federal Council

by Dr. iur. Marianne Wüthrich

On 24 June 2015, Federal Councillor Didier Burkhalter heralded to the media a “new stage» in the relations of Switzerland and the European Union. The Federal Council had decided that from now on the discussions and negotiations with the EU were under full control of  Burkhalter’s Department FDFA (Federal Department of Foreign Affairs). A “Chief Negotiator” had been employed for this purpose. An innovation that is actually not so new, as one of the journalists noted in the question-and-answer session. Despite of the journalists’ persistent attempts to learn anything substantial, Federal Councillor Burkhalter remained equally persistent in his style of delivering many detailed explanations about trivialities in a serious voice and when it came down to doing business, either sliding into a Sibylline language or directly refusing to answer. Anyway, the attentive listeners learned little concrete, but much between the lines which deserves attention.

Actually, the facts are crystal clear: By the referendum of 9 February 2014 the sovereign mandated the Federal Council to independently control the immigration again that is extremely high compared to other European countries, while observing the “general economic interests of Switzerland” and giving preference to Swiss job applicants and foreigners living in Switzerland (Federal Constitution article 121a). This mandate of the Swiss voters seems to be less clear to the Federal Council: “[...] even if the result of voting is 50-50, even in this case” it is the target, “to find a solution that strengthens the cohesion of our country, the functioning of democracy and the institutions and at the same time strengthens the way of bilateral agreements with the EU.”1
Shall a voting result of 50.3% in favor be valid only a little? So that the Federal Council will have virtually free rein, whether are willing to implement the decision or not?

The mysterious options concerning the free movement of persons

Mrs Simonetta Sommaruga this year’s President of the Swiss Confederation and EU Commission President Juncker are busy among other things to discuss “options” with regard to the free movement of persons and even extend it. As to the content of the EDA Chief’s speech at the press conference one couldn’t draw any information out of it. However he asserted that in the Fall the two of them would “assess” their findings concerning the undisclosed options.
What are the representatives of the media, what are we, the citizens, supposed to do with an “information” that the two of them want to discuss and assess an issue which only they and probably half of the Swiss Federal administration are familiar with, but not the voters? The Federal Council likes “to follow up the options and to extend them; but it would even be better to involve those affected”. Those affected are not the Swiss people, but our neighboring countries “which have an obvious interest to see a solution within reasonable time.” However, we, the citizens do have this obvious interest, as well!

Maintaining the Bilateral Treaties I: In whose interest?

Nevertheless the gentle audience learns quite a lot in the media conference about the intentions of the Federal Council: they seem to welcome the adaptation of the free movement of persons agreement to revive all frozen dossiers with the EU: It is the “general strategy of Switzerland”, to “[...] control immigration by taking the country’s economic interests  into account and simultaneously preserving and up-dating the Bilateral Treaties.”
Well, this “general strategy” of the Federal Council does not conform to the mandate of the sovereign. It is true that the Federal Council must control the immigration in a better way by a draft law. They should start working on that business soon, in particular since the Council has announced a “stage of increased speed”; for the law is to be put into operation2 within three years after 9 February 2014, a period of time almost of which half has already passed!
There is no provision in the Federal Constitution that the Federal Council should maintain the existing Bilateral Agreements with the EU at any cost, however. The provisional regulations with respect to Article 121a state: “International treaties contradicting articles 121a, are to  be renegotiated and adapted three years after their acceptance by the people and the cantons.” So the Federal Council must renegotiate the free movement of persons agreement and the execution act with Brussels based on the adapted version, approved by the Parliament and by the people – in  case of a referendum, if the Swiss scheme does not suit the folks in Brussels. Undoubtedly, this will be the case, as we have been constantly told since 9 February 2014!
It’s indeed a question whether the EU would go that far as to terminate the seven agreements of the Bilateral I. Because in spite of all allegations that the Swiss wanted to close the borders and let no foreigner in, that was never discussed. Of course,  people from our neighboring countries and the other EU Member States – also from non-EU countries – are welcome in  Switzerland. However, we want to decide on our own, as a sovereign state how many foreigners we can take on board. The EU States in turn have a vital interest that their citizens can continue to migrate to our country or work here in Switzerland while commuting across the border.
Moreover, there are further agreements included in the Bilateral Agreements I, that the EU would hardly like to quit, such as the land transport agreement, on the basis of which far more trucks are struggling with far heavier cargoes passing through the Swiss Middle Lands and the narrow Swiss Alpine valleys (and not by rail!) as the then Federal Council wanted to make us believe before the referendum of 21 May 2000. While simply and easily it ignored the requirements of the Alpine Protection Article (BV article 84), knowing that the NEAT wouldn’t be operational by 2004 (10 years since the referendum on the Alpine protection article) and the planned maximum of no more than
650,000 truck trips per year could not be met.

“Updating” the Bilateral Treaties: Do the Swiss people really want that?

The Federal Council wants “to revive the pending discussions in all the dossiers”, said Didier Burkhalter. In doing so, he mentioned the nationwide highly controversially discussed negotiations with the EU about an agreement on the electricity market. Swiss  voters  rejected the planned first stage of the electricity market liberalization in the interior at the ballot box as early as on 22 September 2002; it was the Swiss Federation of Trade Unions that had taken the referendum then. Not only Trade Unions and EU-skeptics spoke out against the integration of Switzerland into a boundless liberalised EU electricity market, but for example also the Social Democratic Party SP, even though it has had Switzerland’s accession to the EU an objective in its party program for a long time: “The SP is not very enthusiastic about the intention to liberalise the electricity market completely. It is not clear what benefits consumers and the employees of the electricity industry would  have from a market opening. On the contrary: the working conditions would come under pressure and investment would be delayed because a full liberalisation in view of today’s low market prices would further exacerbate the crisis of the industry.” (Press release of 8 October 2014) This clear statement is worthy of a workers’ party!
It is beyond debate that an electricity market agreement that would deliver our well-functioning power supply to the EU energy multinationals would have no chance in a further referendum. Above all Switzerland must keep firmly in hand its valuable hydroelectric power, which covers 60 percent of Swiss electricity.
Such considerations do not keep the Federal Council – which obviously would have actually to represent the Swiss people in negotiations with other countries – from  plunging into another adventure and resuming the preliminary talks on financial services. The Federal Council considers it “logical to resume the negotiations on all dossiers at once”, because “they are all  linked”. Or in good French: “On veut marier tout ça.”

Who does the Federal Council represent – Switzerland or the EU?

The EU demands a solution to the free movement of persons as a prerequisite for at least three more issues, as it can be heard in the Media Conference: “[...] It is quite clear that a solution for the free movement of persons is prerequisite for a framework agreement and the latter is a condition if some day we want to conclude more agreements”.
According to the homepage of the FDFA the framework agreement concerns the “institutional questions” “which are intended to ensure a more consistent and effective application of existing and future contracts in the area of market access.3 This means that Switzerland is to be subjected under EU law and its development, not only in relation to future agreements, but also to the existing ones, so to the Bilateral Agreements I and II, as well as to about 100 other treaties with the EU. Foreign judges, namely the European Court of Justice (ECJ) would decide on the application and interpretation of EU law in Switzerland, not the Swiss Federal Court.
It is not very likely that the Swiss population would accept to be subjected to a unknown body of foreign laws and foreign judges. It would be  best to discard the framework agreement as useless, because who wants to have more contracts with the EU such as the agreement on electricity market?
Secondly, the free movement of persons is “condition for full participation in future research: Horizon 2020”, Burkhalter says. You surely noticed that direct subsidies of Swiss research projects with federal tax money would be far cheaper than the deposit in a pot in Brussels, from which only a part is coming back, because after all the EU bureaucracy must be paid? Sounds logical, doesn’t it?
“Third and last example: A solution to the free movement of persons is also connected with the discussion about a new financial contribution to the EU’s enlargement.” It is quite enough now!! If we do diligently pay the EU – may be! – will make a small concession in passenger traffic. We citizens expect that the Federal Council has a clear answer ready to such impositions.

Package or not package that is the question

A journalist at the press conference asked: “Can we conclude  that the Federal Council has agreed to a package of dossiers?”
Reply Burkhalter: “No, you cannot say that, we have not agreed on discussing a package, but it could be a package in the end.”
Question: “Did I understand this correctly: You do not primarily want a solution only for the free movement of persons, but you explicitly want a package solution. With institutional issues, with...”
Burkhalter (interrupts): “No, you did not …”
Continuation of the question: “… or does that go too far, as well?”
Burkhalter: “No, you can’t say that, it’s just a little more oil in the engine. You can not exactly say how it will go on. The Federal Council has even discussed different options for the next opportunities, but you don’t know whether there will be the package – a small or a big one, or none at all, or whether this opening, this overall vision probably allows a series of decisions. Everything is possible. We are leaving these questions open. […]”
I won’t trouble the readers with more nebulous responses to clear questions.
The critical listener cannot help asking more questions: If the Federal Councilor does not want to reveal anything, why is he holding a media conference anyway? Or is there nothing to disclose at all? Maybe he is not willing at all to confront the EU negotiating partners on an equal footing and care for Switzerland’s interests?

New stage under FDFA’s sole leadership “at increased speed”

While previously both the Department of Justice and Police under Simonetta Sommaruga and the Department of Economic Affairs (now EAER Department of Economic Affairs, Education and Research) under Johann Schneider-Ammann in addition to the EDA led the negotiations with the EU bodies, on 24 June 2015 the head of the Department of Foreign Affairs addressed the media for the first time. The Federal Council had decided that the EDA should take the lead and determine a Chief negotiator, so that all negotiations could go on on under one hat (sous un chapeau). (To the person of the negotiator: see box)
The “stage at  increased speed” should proceed as follows: In summer: Instruction of the Chief negotiator. In autumn: Result of the options’ intensification  about the free movement of persons, at the same time the result of the consultation process on the law on the implementation of article 121 BV, at the same time survey of all  dossiers. Also in Autumn: Decision of the Federal Council on the future message to the Parliament. The message is intended at the beginning of 2016. “Throughout the year 2016 the Parliament will deal with the dossier and the people are informed about the best solution.”
We are indeed surprised at that development! With truly breathtaking speed the Federal Council wants to tackle the task: In summer, that means right now – the still unknown – Chief negotiator will be instructed. Until Autumn Mrs Sommaruga and Mr Juncker should have deepened their enigmatic options concerning the free movement of persons (a thing that failed to come about in the one and a half years since 9 February 2014). Also in Fall, the result of the consultation process on the implementation of the law on the free movement of persons should emerge. By the way, there is no public consultation! Neither under the completed nor under the current nor under the planned consultations the ominous Act can be found. How does the Federal Council get the result of a consultation in Autumn that does not exist at the end of June? Also in Autumn: Inventory of all the dossiers – of which Mr Burkhalter in this summer still doesn’t know “whether there is the package – small, great – or  not”. Also in Autumn, the Federal Council decides on the content of the message to the Parliament on the basis of the results of a public consultation which does not exist. In the beginning of 2016 nevertheless the so-called dispatch will be ready and the Parliament will have time for debate throughout the year – however , the three-year period for the implementation of the free movement of persons ends on 9 February 2017. A little short, isn’t it?
And now the highlight: The whole year 2016 it also meant “to orient the people on the best solution.” Right on, Mr Federal Councillor?     •

1     quotes from the video recording of the press conference www.admin.ch/gov/de/start/Dokumentation/medienkonferenzen/2015/6/24_06_2015_1084.html
2    Transitional provision to BV 2 see article 121a
3     www.EDA.admin.ch/DEA/de/home/verhandlungen-Offene-themen/verhandlungen/institutionelle-Fragen.html

Plea for an EFTA 2.0

mw. Prof. Rolf Weder, professor of International Economics and European Integration, University of Basel, suggests a free trade agreement, comparable to the EFTA, as an alternative to the EU. He considers the EU’s internal market as “opening to the extreme”, which does not take into account the peculiarities of the individual states and their independence. In an EFTA 2.0, markets would be only as open, as far as the individual States wanted them to be without forcing them into standardisation.1
Here some remarkable statements by Professor Weder:
“[...] The whole European policy and  negotiations in Switzerland [are] too much focused on the EU.”
“In negotiations with the EU [it is] an advantage [...] if you have an alternative, and if you are therefore not too dependent on your counterpart.”
“National borders have a significance. This means that not everything should be subordinated to the goal of the freest possible exchange – on  the contrary, a country should only open as far as to not giving up too much autonomy.”
“In my opinion, great efforts should now be made to build up an institution that goes in the direction of EFTA 2.0.”
“The harmonisations enforced by Brussels taking place in the EU, would be less important in the EFTA 2.0. Harmonisations would no longer be implemented top down, but if at all, from bottom up, in case governments find that certain standards make sense and when their countries are ready to adopt them. “

1     Prof. Dr. Rolf Weder, Professor of international economics and European integration at the University of Basel, in “Zu stark auf die EU konzentriert” (Too much focused on the EU),  in Weltwoche No. 28/15

The mysterious chief negotiator

mw. At the press conference of 24 June the name of the future chief negotiator gave cause to veritable guessing games. For example, the following (no joke, but literal quotation): “Can you tell me in which department the chief negotiator will be placed?” – Burkhalter: “ In Switzerland” – “That was not the question.” – “Yes, of course, I know. But that was the answer.” While performing a skilful balancing act around the person to be elected, he simultaneously intimated that it was not so important who came into office, but that “the structure worked well” and “the chemistry was right”.
In plain language: It should be someone who is willing to nod to all the requirements of the EU, because he is to – and is willing to – pave the way for Switzerland’s EU membership. In this respect, “the chemistry must be right”: The majority of the Federal Council (an estimated 5 of 7 members) has been aiming at the membership for years, so they only want a Swiss negotiator who pursues the same objective.
Of course, the representative of the entire Federal Council may not say that openly at the press conference – because annoyingly he deals with an electorate whose majority does not want to join the EU. One can certainly say without exaggeration: If we did not have direct democracy, Switzerland would have joined the EU long ago.

Why not Mario Gattiker?

Two questions at the press conference on June 24, 2015 related to Mario Gattiker, State Secretary of the Federal Office for Migration FOM (since 1 January 2015 promoted to Parliamentary Secretary). In November 2014 he had received the Federal Council's mandate to renegotiate the Free Movement of Persons Agreement with the EU. Why should he now, after only half a year in office, be replaced by an unknown “chief negotiator”?
Significantly, Burkhalter´s only remark concerning  the future negotiator´s name was a negative remark: “It could be Mr Gattiker, but it is not Mr Gattiker”. Then he issued the following opinion on Gattiker’s work: “It is nothing against Mr Gattiker or against anyone. We even thanked him, he has done a good job in the last few months, it has been difficult and he has done a ggod job, he has coped well. We are satisfied with his work. But again: There is a lot of work to do, and now we need a new stage and a new speed.”
In the private sector this would be a miserable job reference: An employee whose references said that he “coped well” with a difficult task, whose employer attested him to be “satisfied” with his work and to have “even (!) thanked” him, would appeal against these references in court. However, if the State Secretary of the Federal Migration Office is only able to induce so little enthusiasm with the Federal Council and its pro-EU candidate clique, we, the citizens, are getting curious.
Mario Gattiker in a newspaper interview: “Switzerland has an extraordinarily high immigration rate. Among the OECD countries, apart from Luxembourg, it has the highest rate of immigration in terms of population. [...] A majority of the people have now agreed that Switzerland should take migration back into its own hands” ("Neue Zürcher Zeitung" of 6 December 2014).
Showing so much objectivity and understanding for the concerns of yes-voters – that would be the proper negotiating partner for Switzerland! Somebody who would be able to confront the people in Brussels on equal terms and introduce them to the concerns of the Swiss, because he himself has understood those concerns. Whether the EU negotiation partners understood a glimmer of it and whether they wanted to understand at all, that is a different matter. However, Mario Gattiker would be a person who obviously does not want to force Switzerland into the EU at any price, but sees himself as a servant of the people.
(Translation Current Concerns)

Searching for the value of the Bilaterals

“Perhaps a growth that amounts to a quarter of one percent point higher per capita: This is a possible reading of the KOF study for the benefit of the Bilaterals. The overall growth is estimated at 1% per year. Thus, the Bilaterals essentially bring a growth without benefits.” Neue Zürcher Zeitung, 4 February 2015, p.23. The study can be found on the website www.kof.ethz.ch/publikationen/p/kof-studien/3571  (Abberger, K., et al. “Der bilaterale Weg – eine ökonomische Bestandsaufnahme [The bilateral approach – an economic inventory], KOF studies, 58, Zurich, February 2015)

Source: Europe magazine, 1/2015.

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