Mandatory adoption of EU law desperately overplayed

In the run-up to the elections – autumn session 2019

by Dr iur. Marianne Wüthrich

On 20 October, we Swiss will elect the National Council, and in most cantons also the Council of States members. Before that, the three-week autumn session of the Federal Assembly will take place, from 9 to 27 September, which will be dominated by the elections. For this reason, many parties have made a fierce effort to leave the most important issue, the Framework Agreement with the EU, out in the open so that they do not have to commit themselves. To the same end, the decision as to whether Switzerland should pay a further 1.3 billion into the EU’s Cohesion Fund was postponed until the December session. However, the relationship between Switzerland and the EU could not be completely omitted. The National Council will discuss the Limitation Initiative, the Council of States will discuss a proposal by a number of Council of States members to reject the Framework Agreement to the EU. These two proposals will be presented here.

“Obviously, the “needs of the economy” for the Federal Council consist above all in the uncomplicated filling of jobs by companies. The accompanying measures negotiated between the trade unions and employers’ associations prior to the conclusion of the Agreement on the Free Movement of Persons on protection against wage dumping, on the other hand, would lapse with the planned Framework Agreement, or at least be greatly watered down.”

 

On 16 September in the National Council

“Limitation Initiative” – yes to the sovereignty of Switzerland

On 16 September, the National Council will vote on the SVP popular initiative “For moderate immigration (Limitation Initiative)”. It was launched in January 2018, and 100,000 signatures were already submitted in July 2018. The initiative follows on the Mass Immigration Initiative of 2014, adopted by the sovereign but not implemented by parliament, and calls for the independent regulation of immigration; to this end, the Agreement on the Free Movement of Persons with the EU is to be terminated by negotiation within one year of the adoption of this initiative, or cancelled if necessary.1
The fact is that Switzerland’s permanent resident population has grown from around 7.1 million in 2000 (entry into force of the FMPA) to over 8.5 million at the end of 2018 and will continue to rise. 25.1% of the total population are foreigners.2 This means that there is an urgent need to increase the amount of land available for construction and the ongoing expansion of infrastructure. Anyone who is concerned about the increase in resource consumption and pollutants should actually support the Limitation Initiative.
Irrespective of such interrelationships, the same circles have taken a stand on combating the initiative as on the yes campaign on the Framework Agreement. Party decisions on the Limitation Initiative have not yet been taken; the respective delegate assemblies will decide on them in due course. For the time being, therefore, we shall confine ourselves to the counter campaigns of the Federal Council and the think tank Operation Libero. They provide enough food for thought.

Counterarguments of the Federal Council remarkable in a number of ways

On the one hand, it justifies its “no” with the “needs of the economy”, because the Free Movement of Persons “allows employers to recruit skilled workers quickly, flexibly and without administrative effort in the EU/EFTA area”. In addition, the Federal Council says that he would make use of the “existing flanking measures”. Moreover, it tells us that immigration would “not have led to an increase in social benefits”.3
Obviously, the “needs of the economy” for the Federal Council consist above all in the uncomplicated filling of jobs by companies. The accompanying measures negotiated between the trade unions and employers’ associations prior to the conclusion of the Agreement on the Free Movement of Persons on protection against wage dumping, on the other hand, would lapse with the planned Framework Agreement, or at least be greatly watered down. It is a bold claim that excessive immigration has not led to more welfare recipients! Statistics and media reports speak a different language. In addition, the Citizens of the Union Directive, which would also apply to Switzerland under the Framework Agreement, would make it easier for immigrants to access our social services. Finally, the Federal Council has made an absurd remark: it wants “only as much immigration as necessary”! This is exactly what the initiators want to achieve with the Limitation Initiative – but with the Agreement on the Free Movement of Persons this is not possible.
On the other hand, the Federal Council repeats for the umpteenth time that after the termination of the FMPA “all other six agreements of the Bilateral Agreements I have been dropped due to the ‘guillotine clause’”.3 This demonstrates once again on which side of the table it usually sits in negotiations with Brussels. If the negotiator accepts in advance what the other side could strive for, he has already lost.
On the repeatedly maintained  “guillotine clause” SVP President Albert Rösti says: “I believe the EU will engage in negotiations because it benefits massively from the six treaties concerned. If that doesn’t succeed, then the loss of the six treaties will have to be accepted. The most important treaty for exports, the 1972 Free Trade Agreement, will not be affected.”4

“It is obvious that the three points on which the Federal Council in Brussels is calling for clarification – state aid, wage protection and the Citizens of the Union Directive – deliberately exclude the two central questions of the Institutional Framework Agreement: The dynamic, i.e. automatic and mandatory adoption of EU law and jurisdiction by the EU Court of Justice.”

 

Confusion of terms: Operation Libero “defends our freedom in Europe”

“Will you defend our freedom in Europe? Become a Braveheart and help us dump the Cancellation initiative.” With this slogan, Operation Libero called for the online collection of 100,000 dissenting votes in January 2019, when the Initiative Committee began collecting the 100,000 signatures for the Cancellation Initiative.
The dubious backgrounds of the political movement Operation Libero were presented in this newspaper on 21 August.5 It reveals its goals on its homepage: Operation Libero has risen like a phoenix from the ashes of the NEBS (New European Movement Switzerland) and has taken up the cause like once before the latter: “Switzerland must finally discuss its position in Europe without mindcuffs [...]”. Updated, this means: “Possibly an extended bilateral treaty [ment is the Institutional Framework Treaty, mw] can regulate the outstanding issues. Should this not be possible, however, accession to the EU could be in Switzerland’s interest.”6
Why would Operation Libero choose “Braveheart”, the title character of a Hollywood film, as its symbol? The hero is a Scottish freedom fighter against powerful England in the 13th century. Doesn’t this role fit better with the Swiss freedom fighters against the powerful EU? We defend however our freedom by not allowing ourselves to be politically integrated into the EU – are we not? But Operation Libero obviously means a completely different “freedom”: not the freedom as opposed to the EU, but the freedom whithin the EU, the freedom of global corporations to operate within the borderless EU internal market – without being bound by the law of a sovereign state like Switzerland.

On 17 September in the Council of States

Rejection of the Institutional Framework Agreement to the EU

“The Swiss Confederation shall protect the freedom and rights of the people and safeguard the independence and security of the country. Rejection of the Institutional Framework Agreement to the EU”.

What many Swiss people want from federal politicians has been done by a handful of Council of States members: Peter Föhn (SVP Canton of Schwyz) and five co-signatories submitted a motion in June to reject the Framework Agreement to the EU. In doing so, they are disregarding the stage directions of the other parties.
The text of motion 19.3746: “The Federal Council is called upon not to conclude bilateral or multilateral agreements neither with the EU nor with other states which contain an obligation to adopt the law in a dynamic, i.e. automatic and compulsory manner or which provide for the jurisdiction of the other party to decide on a dispute, as this would be a flagrant violation of the purpose article of the Federal Constitution (Art. 2 para. 1 FC: ‘The Swiss Confederation shall protect the freedom and rights of the people and safeguard the independence and security of the country’).”
From the explanatory statement: “It is obvious that the three points on which the Federal Council in Brussels is calling for clarification – state aid, wage protection and the Citizens of the Union Directive – deliberately exclude the two central questions of the Institutional Framework Agreement: The dynamic, i.e. automatic and mandatory adoption of EU law and jurisdiction by the EU Court of Justice. The Swiss would thereby lose (the) legislative power in their own country. It would no longer be possible to organise our cohabitation according to our rules of direct democracy.
The EU should be kindly and unequivocally explained that Switzerland is interested in good bilateral relations at eye level, but cannot sign any treaty that violates the purpose article of the Federal Constitution, which guarantees the independence of the country and the rights of the people [...]”.
Cultivate narrow-minded way of thinking or politicise honestly?
An urgent question arises: Do the members of our parliament want to continue to cultivate narrow-minded thinking, or do members of the Council of States (and later National Council) from other parties give each other a “push” and join in this motion? We citizens should take a close look at whom we want to elect on 20 October: Not tacticians who turn their coats to the wind, but upright, honest personalities. They exist in every party.                        •

1    Text of the initiative see www.begrenzungsinitiative.ch/initiativtext/
2    www.bfs.admin.ch/bfs/de/home/statistiken/bevoelkerung/stand-entwicklung/alter-zivilstand-staatsangehoerigkeit.html
3    “Bundesrat sagt nein zur Begrenzungsinitiative”. Press release of the Federal Council of 7 June
4    “There is no half independence”. Interview with SVP President Albert Rösti, in: St. Galler Tagblatt of 4 September, Interview: Tobias Bär
5    “How much freedom does ‘Operation Libero’ bring?”, in: Current Concerns from 21 August
6    “Operation Libero seeks 100,000 no-sayers!”, in: Blick from 22 September 2018, Andrea Willimann

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