Framework agreement Switzerland-EU Union

Union Citizens’ Directive and ban on state aid as next heavy load

by Dr iur. Marianne Wüthrich

As soon as the institutional framework agreement – at least in its French version – was on the table, the Federal Council could forget its consultation, which was only planned in a small circle (cantons, parties, social partners). In Switzerland, citizens are accustomed to dealing with draft laws or treaties, informing themselves about their contents and taking part in the discussion. Most of them cannot be dissuaded from doing so, even in the face of rough headwinds. This applies in particular to documents such as the framework agreement, the effects of which would be serious in many respects: for the political rights of citizens, for the direct democratic and federal state system, for the protection of employees, for the public service carefully maintained by the commune. One could almost get the impression that certain forces are interested in lowering the high standard of living, the right and responsibility of citizens to participate in shaping the state and society, the cultural and economic strengths of multilingual and small-scale Switzerland to a poor level that is not worthy of the other European peoples either.
Although the majority of the Swiss population cannot even read the draft treaty in their mother tongue for an indefinite period of time (see box), numerous hard to digest lumps have already appeared in the public debate. And the trick: despite all the Cassandra calls, Switzerland would probably do much better without a framework treaty – and would even retain its sovereignty as an equal contracting party to Brussels. More about this clou in a later article.

Arbitration Court as “pass-through” of the ECJ

In Current Concerns of 7 January 2019 it has already been clarified: The creation of an arbitral tribunal is only intended to conceal the fact that it would always have to comply with the case law of the European Court of Justice when it came to the interpretation or application of EU law – i.e. practically in any case, since the incorporation of EU law into Swiss law is precisely the purpose of the framework agreement.¹ This close connection of the arbitral tribunal to the European Court of Justice was recently confirmed by experts in a radio contribution. According to Professor Benedikt Pirker (University of Fribourg), future agreements, such as the electricity agreement, would “certainly be modelled on EU law, which is the point of the matter. And in these cases, the arbitral tribunal will also refer the questions to the ECJ so that the rules can be interpreted in the same way.” The same applies to the five previous agreements underlying the framework agreement, said State Secretary Roberto Balzaretti, Swiss negotiator in Brussels, at the media conference on 7 December 2018. Moderator Philipp Burkhardt summed up the matter in a nutshell: “To put it bluntly, in almost all disputes the arbitral tribunal would not be much more than a pass-through without its own decision-making authority.”²

EU law over Swiss law: Example Union Citizens Directive

The Union Citizens Directive is a vivid example of how EU law would marginalise Swiss law in many areas. It extends the right of citizens of the EU member states and their family members to residence and social assistance far beyond the rules in the Switzerland-EU Agreement on the Free Movement of Persons: permanent right of residence after five years of residence for the Union citizen and his family members (Art. 16), right of residence for social assistance recipients “as long as they do not unreasonably claim the social assistance benefits of the host member state” (Art. 14), expulsion “only for serious reasons of public order or public security” (Art. 28).³
At the beginning of the negotiations on the framework agreement, it was stated that the Union Citizens’ Directive was not even up for discussion, later Federal Councillor Cassis declared that it was a “red line”, but in the present draft the directive is not mentioned, so it is not a “red line”, at least not for the EU. The EU Citizens’ Directive is part of the “dynamic development” of the free movement of persons. If, for example, the arbitral tribunal had to decide whether the social assistance of an EU citizen living here was appropriate or inappropriate or whether a convicted offender may or may not be expelled, for example, the regulation in the Swiss Federal Constitution – decided by the sovereign a few years ago – would no longer be decisive.⁴ Only recently, the Swiss Federal Supreme Court stated with regard to the expulsion “that the legislator wanted to regulate exceptions to the obligatory expulsion restrictively and to restrict the judicial discretion in individual cases as far as possible”.⁵
However, the arbitral tribunal provided for in the framework agreement would not have to comply with the case law of the Swiss Federal Supreme Court in its rulings, but would have to follow the case law of the European Court of Justice. In this way, for example, the Union Citizens Directive would suddenly become part of Swiss law without having been adopted by the people, and our own law would be ineffective, at least vis-à-vis EU citizens.
Those who have not yet understood ought to see clear by now at the latest: That is why the EU turbos had to persuade the Swiss electorate to reject the self-determination initiative! If they had said yes, the framework agreement would have been off the table.    •

1    See “Terrain for EU Framework Agreement is levelled”, in: Current Concerns of 7 January 2019
2    “Controversial Framework Agreement”. Radio SRF, Echo der Zeit, 14 December 2018
3    Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [...].
4    Article 121(3) of the Federal Constitution, adopted in the referendum of 28 November 2010: “Irrespective of their status under the law on foreign nationals, foreign nationals shall lose their right of residence and all other legal rights to remain in Switzerland if they:   
    a. are convicted with legal binding effect of an offence of intentional homicide, rape or any other serious sexual offence, any other violent offence such as robbery, the offences of trafficking in human beings or in drugs, or a burglary offence; or
    b. have improperly claimed social insurance or social assistance benefits.”
5    Media release of the Federal Supreme Court of 20 December 2018. Judgment of 23 November 2018 (6B_209/2018). Criteria for hardship assessment in the case of expulsion from the country

mw. The draft framework agreement, which the Federal Council negotiated with Brussels for four years behind closed doors, was published on 7 December, 2018, but only in French. The Federal Chancellery is responsible for the timely translation of the texts: “The Federal Administration is in the service of a multilingual population and therefore provides its publications and the official texts in German, French and Italian.” (Federal Chancellery homepage, translation).
Since the Federal Council wants to provide information on the results of its “internal consultation” in the spring, I asked the Federal Chancellery about the German and Italian translations, with the comment: “After all, it is a document of great interest to the whole population, which should be read in all official languages.” The Federal Chancellery forwarded my request to the Directorate for European Affairs DEA. Their answer: “All important information can be found on the website of the Directorate for European Affairs (DEA)”, indicating the already known links to the French draft and the German short version of the Federal Council. Closing remark by the DEA: “The German translation of the draft text of the institutional agreement will probably be online in January 2019.”
“Probably” – although the French version is already available since 23 November 2018 – and in the Federal Parliament building legions of translators romp about, but are presumably occupied, primarily, with the transferring of EU right in “autonomous” assumed Swiss decrees.
So we wait patiently for the German version – or put our time in the autonomous translation of the French text ...