Plain language required instead of diversion!

Negotiations Switzerland – EU: Status before the summer break

by Dr iur. Marianne Wüthrich

In its media release of 4 July 2018, the Federal Council once again tries to wriggle out of the situation: Hardly any information on the content of its negotiating dossier, many nebulous hints, pure warm air: it had “taken note of the technical progress in the institutional negotiations with the European Union (EU)”, and the negotiating delegation would “continue the discussions with the EU with a view to reaching an agreement on the institutional issues”. Although not even the members of the Foreign Affairs Committees of the National Council and the Council of States ever saw a draft of the ominous treaty, at present everything in the daily press is all about the accompanying measures to the Agreement on the Free Movement of Persons as allegedly the last hurdle. And the icing on the cake is offered by the trade association economiesuisse with its survey of the management of larger companies. There the agreement is already majority capable today – no matter what it says?

The whole confusion between politics, the media and various business associations seems to be aimed at creating some confusion in the citizens’ minds. The EU-friendly classe politique hopes that the electorate will be bruised until the referendum (if the dossier manages to do so by then) by means of continuous irrigation with unproven reports and heated debates on “red lines”.
In order to unravel the heads, here are some corrections:

Accompanying measures: heated debate …

In its press release of 4 July¹, the Federal Council confirmed “the existing red lines” with regard to the accompanying measures to the Agreement on the Free Movement of Persons (checks on employment contracts and wages; eight-day registration period for foreign companies).
Gradually, however, the “red lines” are already fading to pink. The head of the Federal Department of Foreign Affairs (FDFA), Ignazio Cassis (FDP), who promised before his election to the Federal Council to press a “reset button”, i.e. to re-launch the framework agreement in the interests of Switzerland, can be dissuaded from a clear position time and again. Under pressure from Brussels? and/or foreign politicians of his own party? For Paul Rechsteiner, President of the Federation of Trade Unions (SGB) and SP National Councillor, the existing measures are currently “non negotiable”. Whether he and his comrades would, however, go so far as to let the framework agreement fail is very questionable, as EU accession has been part of the SP party programme for decades.

… past the central point – the disempowerment of the sovereign

Among EU leaders, this noise at best causes a weary shrug of the shoulders: What an absurd idea on the part of the Swiss that the EU could be prepared to include Swiss law in a framework agreement!
Even in the latest media release, the Federal Council does not disclose the basic principle of an institutional framework agreement with the EU. It is not a question of reaching agreement with Brussels on a few current specific issues such as the registration deadline for foreign service providers, new rules on the possession of arms or the payment of unemployment benefits to frontier workers.
Rather, the main content of a framework agreement would be Switzerland’s fundamental duty to automatically adopt EU law, both present and future, of which we have no idea today. The voters would no longer have anything to say in many areas of legislation. The random examples give us an idea of how far-reaching the disempowerment of the sovereign would be.

EU Commission shows who is the boss

This is what the adoption of EU law looks like in practice: As early as the beginning of June, the EU Commission declared that the accompanying measures and red lines of the Swiss did not fit into its system: “Here, in principle, the EU would like Switzerland to say goodbye to them and orient itself towards the European protective measures that have recently been expanded.”²
Another important piece of EU law that is to be imposed on Switzerland concerns state aid, which was recently the subject of Current Concerns.³ In contrast to the hardly comprehensible phrase structure in the Federal Council’s media release of 7 June, the EU Commission, according to SRF online, does not lack clarity: It also wants to “enshrine in the framework agreement the principle that state aid – certain subsidies – are prohibited”.⁴
All clear? From now on, Brussels will tell you which law applies in Switzerland. That would be the central content of a framework agreement!

Adaptation or resistance?

A number of Swiss politicians have already accepted this view without revealing it explicitly. So Federal Councillor Cassis, who wants to find “other ways” to protect against wage dumping, or Elisabeth Schneider-Schneiter, National Councillor of the CVP, President of the Foreign Affairs Committees, with her remarkable statement on the accompanying measures: “Perhaps there is an opportunity, together with the EU, to achieve goals that are better for all of us.”⁵
What do you call that? In the past, the Swiss have joined forces against foreign powers who let their muscles play. So, stop the internal political skirmishes! We citizens expect each and every one of our politicians and association leaders to make a clear statement for or against Switzerland’s integration into the undemocratic EU system. And don’t forget: Finally, we, the voters, will take the lead.
The Federal Council, on the other hand, is trying to keep the electorate out as long as possible. While it first spoke of a consultation after the summer break – which would involve obtaining, publishing and including the comments of the 26 cantons, the political parties, the associations and the interested citizens – it now suddenly only wants to talk to “the cantons” (i. e. the presidium of the “Conference of Cantonal Governments”, CCG) and the social partners (heads of the trade unions and employers’ associations) and “make a new assessment on the basis of the results of the various discussions after the summer”. (Press release of the Federal Council of 4 July).
The electorate seems to have to wait until the classe politique has found a way to get the majority to say yes. That could be a big mistake for you, ladies and gentlemen!

Court of arbitration instead of EU-Court? Untransparent Game

Perspective of the Federal Council: “A consensus regarding the disposition of the dispute becomes apparent by an arbitral solution.” (Oress release of the Federal Council of 4th July)
Perspective of the European Commisson: Juncker had “brought into play an independent court of arbitration. Admittedly not all questions are resolved and the European Court of Justice will play an influent role also concerning this solution.” [SRF, of 7^th June; emphasis added by mw.]
The 18^th April the Secretary of State responsible for the negotiations with Brussels, Roberto Balzaretti gave a lecture at the Swiss Society for Foreign Affairs SGA-ASPE (see box page 11) with the subject “Switzerland – EU: What to do?” According to the press he painted a rosy picture of the court of arbitration which shall be served to the Swiss by the frame agreement: “The EU is ready to narrowly restrict the role of the European Court of Justice in the bilateral disposition of disputes as Balzaretti indicated. Not the judges in Luxembourg should decide but an independent court of arbitration. Balzaretti: ‘In principle the court of arbitration should be able to solve disputes alone.’”⁶
This exposition is wrong in several aspects.

• The Swiss population’s positive picture of courts of arbitration is misused.
      Courts of arbitration have a positive meaning for us Swiss people out of our history. Since the first treaties of alliance of the old confederates arbitrators were an important institution. If two cantons were in conflict the others were obliged to “sit quiet” (that means not to interfere actively), to mediate as neutral arbitrators and to contribute to an objective solution and disposition of the dispute. This happened frequently and worked out. Especially because the Old Swiss Confederacy was a relatively loose confederation, the establishing of the courts of arbitration contributed something essential to the cohesion.
• A court of arbitration does only work with two equal partners
      By the way, even the EU member states aren’t equal in relation to the Brussels institutions. Usual procedure: The European Commission smells an offence against EU-law, they admonish the state for a correction. If this doesn’t happen, they go to law against to the European Court of Justice. This decides finally about the legal interpretation of EU-law and in more or less all cases finds in favour of the Commission. A court of arbitration doesn’t fit into this authoritarian and centralistic structure!
  

  “Direct sentences of a court of arbitration about EU-law are impossible”

      European Court of Justice president Koen Lenaerts to the arbitration court: “As a judge I cannot say what the fate of such a mechanism would be.” But one thing was sure: “Direct sentences of a court of arbitration about EU-law are impossible.”⁷

Conclusion: The whole story about a court of arbitration just serves to divert the Swiss from the obligatory takeover of present and future EU-law – the content and extent of which isn’t known yet – and the judicial sovereignty of the European Court of Justice which is inevitably linked to this.

Swiss economy doesn’t need a frame agreement

With the results of a survey on the bigger Swiss enterprises the trade association economiesuisse at it’s media conference from 2 June heralds the start of the referendum campaigning before the treaty is available. Of the barely 1000 interviewed persons with executive board responsibility 80% expressed themselves “positively towards a frame agreement” – without having seen it. However, the number of supporters shrinks to 60%, if such an agreement can only be obtained at the price of a central court. If the questioning would become more concrete the acceptance could easily fall under 50%.
Thereby directress Monika Rühl during the conference effectively explained very precisely that and why the Swiss economy goes well even today: “Our enterprises are present at the global markets for many years and can hold their grounds successfully against the strong international competitors.” As reasons for this success she names the stable political, juridical and macroeconomic circumstances as well as the good commercial relations to the foreign markets, whereby the most important sales market for Swiss products naturally is the EU domestic market.
Precisely, and with the EU Switzerland has since 1973 a specially tailored free trade agreement which is valid up to now. It is all over town that Switzerland goes so well especially because freedom and sovereignty of the country are in the first place for population and enterprises.

More legal security? Jo chasch dänke! (You can tell this to the marines)

For what a frame agreement with which our successful country submits itself to EU-law? Monika Rühl: “The value of the bilateral agreements for the enterprises lies above all in the access to the European domestic market being free of discrimination. Three out of four enterprises emphasise that legal security in relation to the EU is absolutely pivotal for the economy.” [emphasis mw]
As regards the illusion of legal security by a closer integration into the centralistic major power see Current Concerns of 29 June⁸.
Let me just say this: Legal security for the economy and for single persons develops merely by legal relations on an equal footing. One would think we have enough experience with the EU up to now: if something does not fit the concept of the masteries in Brussels, they take drastic measures, despotic and in breach of the contract.     •

1    European policy: state of negotiations on institutional issues and how to proceed. Press release of the Federal Council of 4.7.2018
2    Dispute over framework agreement. Agreement possible – but Switzerland must move. srf.ch of 7.6.2018. Author: Oliver Washington
3    See “What does ‚EU adoption’ mean? Concrete examples.” Current Concerns No 14/2018 of 29.6.2018 [<link en numbers no-14-29-june-2018 what-does-the-adoption-of-eu-legislationmean-concrete-examples.html>www.zeit-fragen.ch/en/numbers/2018/no-14-29-june-2018/what-does-the-adoption-of-eu-legislationmean-concrete-examples.html]
4    Dispute over framework agreement. Agreement possible – but Switzerland must move. srf.ch of 7.6.2018. Author: Oliver Washington
5    “Accompanying measures – Cassis receives support of unexpected side.“ srf.ch of 15.6.2018. Author: Priscilla Imboden
6    “Fortschritte beim Schiedsgericht”. In St. Galler Tagblatt of 24.4.2018
7    “Fortschritte beim Schiedsgericht”. In St. Galler Tagblatt of 24.4.2018
8    “Institutional Framework Agreement Switzerland-EU – Strategy or confusion?” Current Concerns No 14 of 19.6.2018[<link en numbers no-14-29-june-2018 institutional-framework-agreement-switzerland-eu-strategy-or-confusion.html>www.zeit-fragen.ch/en/numbers/2018/no-14-29-june-2018/institutional-framework-agreement-switzerland-eu-strategy-or-confusion.html]

mw. In their commentary on the “White Paper Switzerland” of the think tank Avenir Suisse2, Konrad Hummler and Tito Tettamanti correct some basic things in a refreshing way. The White Paper calls for an “unbiased discussion” on Switzerland’s path from a “standstill in reform efforts” to “integration into the European and global market”. At the same time, accession to the EU as the favoured solution is “detabooed [...]”. (blurb)
Hummler and Tettamanti: “In short: the more integrated (into the EU) we are, the better off we would be, according to Avenir Suisse.” The two authors disagree because of their firm conviction in the historically grown nature of Switzerland.

“It does really exist, the Swiss substance, 
and it differs from the historically largely untested substance of the EU [...]”

“Freedom, the rule of law, direct democracy and federalism are indispensable qualities of our country and force sufficient sovereignty, even in a complex and interconnected world. It is not just about an intellectual exercise. On the contrary, it does really exist, the Swiss substance, and it differs from the historically largely untested substance of the EU to such an extent that further integration inevitably would mean the self-abandonment of the typically Swiss. “We are a bottom-up country; the rest of Europe is of a more or less authoritarian nature.”

“Switzerland enables closeness to citizens, cost efficiency and cultural diversity.”

It is “a unique, subsidiary intended form of organisation, in which many tasks of social and economic policy can obviously be solved well. Switzerland has always enabled closeness to citizens, cost efficiency and cultural diversity.”

“In what kind of EU would or should we integrate?”

“To take only the best from the EU development is not serious. Rather, one has to ask: in what kind of EU would or should we integrate ourselves? Is it really so unwise to maintain a sufficient distance from Brussels? Realistically, we should give up the illusion that we are able to influence the developments somehow. However, in view of the factual balance of power in the EU, it seems to be rather naive that loss of sovereignty could be compensated by opportunities for involvement.”
Hummler and Tettamanti recommend “also for the forthcoming outcome of negotiation, to forego restrictions on free thought in accordance with the White Paper, to balance carefully the objectively ascertainable advantages and disadvantages and to include possible unfavourable developments of the EU in the considerations.”
Konrad Hummler is former Chairman of the Board of Directors of the “Neue Zürcher Zeitung”, today partner of M1AG, a think tank for strategic issues; Tito Tettamanti is former member of the government of the Canton of Ticino, today a lawyer and entrepreneur.

1    Hummler, Konrad; Tettamanti, Tito. “Die Schweiz und die EU: Substanz statt Performance”. Guest commentary in “Neue Zürcher Zeitung” of 3.7.2018
2    “Weissbuch Schweiz. Sechs Skizzen der Zukunft”. avenir suisse 30.5.2018. editor: Peter Grünenfelder und Patrik Schellenbauer

mw. In April 2018 State Secretary Roberto Balzaretti promoted the (EU) framework agreement at the Swiss Society for foreign Affairs (SGA-ASPE). Out of touch with any reality, he advertised the Arbitral Tribunal, offered by Juncker. So, one should know, who is the SGA-ASPE?
In June 2018 the SGA-ASPE celebrated its 50th birthday with a speech on “Enthusiasm for Europe – in spite of Headwinds“ by Christoph Wehrli. (For many years, Christoph Wehrli was the editor for Swiss matters at the “Neue Zürcher Zeitung”).
At the celebration Gret Haller (former SP-National Councillor and passionate advocate for EU membership) handed over the chairmanship to Christa Markwalder (FDP National Councillor and president of the New European Union Movement (nebs) which aims on Switzerland’s membership to the EU). Also, the SGA aims to this (see also the inaugural editorial by Christa Markwalder, July 20181). Also, Ignazio Cassis was invited to the celebration of the “EU promoter“ SGA and gave an welcoming address (two months later than Balzaretti, who was nominated before from Cassis for State Secretary).
As far as I know, never ever before any Federal Councillor congratuled an EU-critical association. And this shall be the team, negotiating for our country in Brussels?

1    Editorial. “Verhältnis Schweiz – EU: unde venis et quo vadis?” [where are you from and where will you go?] from Christa Markwalder, president of SGA, July 2018