Squaring the circle

^{Summer session – 14 June in the Council of States / 20 June in the National Council}

Parliamentary commissions call for additional negotiations on Framework Agreement with EU

by Dr iur. Marianne Wüthrich

So far, with its “internal consultation” among the “most important actors”, the Federal Council has tried to prevent an open and honest discussion with the population about the Framework Agreement called for by Brussels. Fortunately, the Economic Affairs and Taxation Committees EATC of the Council of States and the National Council are now intervening and submitting motions to their respective councils to put the most crucial points on the table. The Federal Council is called upon to “improve” the institutional agreement with the EU in additional negotiations. The catch in the matter is that the EU bodies will have little interest in additional negotiations on any subject whatsoever. This is precisely why the EU wants to push through the Framework Agreement, so as to settle the eternal discussions with insubordinate Swiss once and for all. The Framework Agreement is intended to introduce a mechanism for this purpose, based solely on EU law and EU court rulings, not taking side into account any special requests of the Swiss. Our members of parliament are thus trying, so to speak, to square the circle with their motions: they are calling for a discussion about the contents of this agreement, which from the EU’s point of view are not up for debate. For Brussels there is only the acceptance or the refusal of the complete structure, or rather: there is only acceptance. The fact that a concept of this kind does not fit into the structure of the Swiss state (direct democracy, federalism, decentralised and small-scale organisation, preservation of as much sovereignty as possible) is clearly expressed in the two motions.

Motion 19.3416 – Additional negotiations on the Institutional Framework Agreement with the EU (submitted by the Economic Affairs and Taxation Committee of the Council of States (EATC-S ) to the Council of States on 9 April 2019)

“The Federal Council is instructed to conduct additional negotiations with the EU or to take other appropriate measures to improve the institutional agreement with the EU as follows:

• Wage protection: wage protection must be ensured at the current level and further developed as required. The social partners must be involved in any required improvements.
• Citizens of the Union Directive: This is not acceptable for Switzerland and must be explicitly excluded. An indirect adoption for Switzerland by way of individual cases brought before the ECJ must be precluded.
• State aid: It must be ensured that the subsidies currently known in Switzerland will not be excluded and that the necessary scope is maintained for the future.
• Follow-up legislation: It must be ensured that Swiss voters continue to have the final say despite dynamic adoption of law. This must be ensured either by the institutional agreement itself or by national follow-up legislation.
• Dispute resolution: It must be clearly defined which elements of current and future EU law may lead to consultation of the ECJ by the arbitral tribunal. Indirect cancellation of Swiss court rulings by the ECJ must be precluded. Provision must be made for periodic reporting on pending disputes and their settlement. […]”

Motion 19.3420 – Additional negotiations on the Institutional Framework Agreement with the EU (submitted by the Commission for Economics and Taxes of the National Council (EATC-N)

The (EATC-N motion has the same wording as that of the Council of States Commission, but is limited to the first three points (wage protection, Citizens of the Union Directive, state aid).

Statement by the Federal Council: Draft agreement criticised from many sides

It is true that in its statement of 22 May, the Federal Council requested that these two motions be rejected: A decision by the Federal Council on further negotiations with the EU was said to be premature because the evaluation of consultations with the parliamentary commissions (EATC and Foreign Affairs Committees FAC), the cantons, parties and social partners on the draft agreement was still in progress.
Nevertheless, the Federal Council notes that the Commissions for Economic Affairs and Taxes of both councils are not the only critics of the agreement content: “The concerns mentioned in the motion were also raised by many other participants in the consultations, in particular the guarantee of wage protection, the question of the adoption of the Citizens of the Union Directive and the question of the rules on state aid effects.
The Federal Council itself had therefore refrained from initialling the agreement for the time being: “In particular due to open points with regard to the accompanying measures and the Citizens of the Union Directive [...]”.
As is well known, Swiss Federation of Trade Unions and the Social Democratic Party of Switzerland continue to insist on those strong accompanying measures which they had made a condition for their approval of the free movement of (Bilateral I, referendum of 21 May 2000).¹ Strong resistance also comes from the cantons against the expected massive restriction of state (above all cantonal and communal) subsidies. In a radio interview, attorney Simon Hirsbrunner, who advised the cantons on the Framework Agreement, among other things expresses his fear of serious consequences for cantonal economic development.²

Conclusion

We can look forward to the debates in both councils on the numerous controversial points and imponderables that would sweep across us as well as across our understanding of law and state with the adoption of the Framework Agreement. It is plainly impossible to make a square out of a circle. This may be illustrated with a statement made by Director of the Swiss Association of Small and Medium-Sized Enterprises and National Councillor Hans-Ulrich Bigler: “The question is not whether the registration deadline for foreign companies can be reduced from eight to four days. It is a question of whether Switzerland will in the future have to dynamically adopt the EU’s posting of workers and enforcement directives . This is out of the question for trade unions and employers alike.³
It is to be hoped that the National Council and the Council of States will refer the motions to the Federal Council. The reactions of the EU Commission and the EU Council to the Swiss Parliament’s demands will be revealing. Let us wait and see.    •

1    See “Framework Agreement with Brussels or self-determination of Swiss citizens?” in: <link internal-link seite:>Current Concerns from 10 September 2018
2    “What exactly does the Framework Agreement comprise?” SRF 4 News, 13 December 2018. Interview with lawyer Simon Hirsbrunner: Oliver Washington. Transcript in: “State economic development would be jeopardised” in: Current Concerns from 11 January 2019
3    “This result must be further negotiated.” Interview with SGV Director Hans-Ulrich Bigler in “Neue Zürcher Zeitung” of 21 January; also see “Institutional Framework Agreement as an instrument of European state-building – Prominent Swiss figures on the Framework Agreement”. in: <link internal-link seite:>Current Concerns from 12 February 2019