With tricks and knacks to the alleged target?

by Dr iur. Marianne Wüthrich

The first session of the newly elected parliament in Berne has come to an end. As suspected, no miracles have occurred. But some cards in the big game about Switzerland’s integration into the EU and NATO are now more open on the table.
Casting a light on the session:

The tricky way to NATO compatible fighters

On 20 December 2019, the National Council and the Council of States approved a 6 billion credit for the procurement of new fighter aircrafts, without these having already been determined.¹ The deal was rushed through the winter session in an unusual hurry: initial discussion in the Council of States on 24 September, in the National Council on 9 December, then thrice back and forth to settle differences, conciliation conference on 19 December and final vote in both chambers on 20 December.
Actually, this was an unspectacular business, the most part undisputed, because today’s army jets are slowly getting on in years. The differences between the National Council and the Council of States mainly concerned the nature and scope of the compensation transactions to be demanded from the supplier states, as well as a distribution key with regard to these transactions among the language regions, so that French-speaking Switzerland and Ticino do not come off badly.
This parliamentary decision is subject to an optional referendum announced by the SP, GP and GSoA (Group for a Switzerland without an Army).
Background: In May 2014, the Swiss people had rejected the purchase of the Swedish Gripen fighter jet with 53.4%, although it was the most financially advantageous. At that time, not only the opponents of the army, but also several bourgeois politicians and officers advised against Gripen because it was not yet technically mature. Some really thought so, others were more concerned about its non-NATO origin. In any case, their statements contributed significantly to the people’s “no” vote, because most Swiss people actually say yes to their own army.
The Federal Council’s trick: to avoid a second failure, this time it leaves the choice of aircraft open. In the referendum vote, the sovereign will only be able to decide whether or not to purchase new fighter planes for a maximum of CHF 6 billion. The fact remains: Gripen would be the most suitable aircraft for neutral Switzerland, because although Sweden is eager to participate in NATO manoeuvres towards the east, it is not a member of NATO. In June 2019, however, Gripen was surprisingly withdrawn from the race, which Jonas Hjelm, head of aviation at the Swedish manufacturer Saab, described as “somewhat strange and unfair”². Now the Swiss parliament has the choice between Airbus and Dassault from EU-NATO countries and a US fighter jet from Boeing or Lockheed Martin, which means that the Swiss army would in any case remain closely integrated into NATO.
This puts us voters in a real dilemma: should we grudgingly issue the blank cheque to the Federal Council and parliament so that they can purchase NATO-compatible jets “at the will of the voters”? Or should we say no to the ever thinner piece of paper between the Swiss defence army and the NATO war pact, and thus accept being labelled as an opponent of the army? This is a dilemma that basically has to be solved in a different way: With a popular initiative for Switzerland’s withdrawal from the PfP, the NATO-tying agreement with the Orwellian name “Partnership for Peace”. In the annual surveys conducted by the ETH Zurich, 90-95 % of the Swiss population affirms Switzerland’s neutrality status – leaving the PfP would be a logical step.

Bridging-pensions for older unemployed persons – an idea with stumbling blocks

In Current Concerns from 12 December 2019, the bridging-pension was presented, which the Federal Council wants to bring through parliament swiftly, before the referendum in May 2020 on the SVP’s limitation initiative.³ After all, a yes vote by the Swiss people on this initiative with the aim of renegotiating immigration with Brussels would herald the certain end of the framework agreement – which is in agony anyway. The bridging benefits are intended to lull Swiss employees into a false sense of security that unimpeded immigration of working people from the EU area will not affect them negatively, even if the Framework Agreement calls into question the strong accompanying wage protection measures. Although some older employees could still lose their jobs to young immigrants with lower wage costs, the new pension would protect them from heavy financial losses. The corresponding bill should pass through the Council of States in December and the National Council in March without any problems, because after all, nobody can object the better social security for long-term domestic employees. So much for the idea from the Federal Council’s bag of tricks.
Now on 12 December 2019, the Council of States has already put obstacles in the way of this ambitious timetable – which was to be expected. For the Swiss model not only includes strong direct democratic rights, but also a very differentiated democratic negotiation in the National Council and the Council of States. An extensive and complex draft law such as the one on bridging benefits is never waved through as a whole, but is discussed and adopted in detail.
Although the Council of States has approved the introduction of a bridging-pension in principle, it has added a number of aggravating provisions to the federal council’s draft: For example, the amount of the pension has been substantially reduced and a seemingly harmless sounding sentence has been added as a condition for receiving it: “Recipients of bridging benefits must prove each year that they are making efforts to integrate into the labour market.”⁴
As a result of these changes by the Council of States, the Federal Council’s timetable is becoming tight: for now the Social Security and Health Committee SSHC of the National Council will first of all deal with the draft, and in the spring session, not only would the National Council have to vote on it, but both councils would have to resolve their differences at top speed so that the electorate can be told before the referendum in May: Immigration into Swiss jobs is not so bad, because older Swiss employees are financially secure, thus the limitation initiative is not needed. – Whether parliament will have the new regulation in place by then is, however, an open question.
In addition, a muddle with EU law is predictable, which certainly does not please the Federal Council. After all, the bridging-pension should be watertight against so-called “immigrants in the social security system”: At least 20 years of employment in Switzerland as a prerequisite for the bridging-pension should ensure this. The Federal Council was of the opinion that these should be regarded as “ early retirement benefits” under EU law, so that Switzerland would only have to credit those years in which someone worked here. However, with the insertion of the clause by the Council of States that benefit recipients must prove their efforts to find a job, the “early retirement benefit” could suddenly mutate into an “unemployment benefit”. In that case, immigrants who become unemployed in Switzerland could have their years of employment in EU states credited to their account. So, will Switzerland one day have to pay out the new social security benefits to immigrants who have not been here long? According to Rolf Camenzind, spokesman for the Federal Social Insurance Office, this risk exists: “The courts will decide on that one day.”⁵ It should be added that the deciding court will either be the ECJ, which is not familiar with Swiss circumstances and is not impartial. Or it will be the Swiss Federal Supreme Court, which would be obliged under the institutional framework agreement to apply the case law of the ECJ in the almost infinite area of the free movement of persons.
Complex facts and legal situations arise here, don’t they? This is just a minute and simplified sample for the confusing EU bureaucracy to which we would be exposed to – if we were so unwise to sign the framework agreement. In any case, with its strategy against the limitation initiative, the Federal Council seems almost to be walking into the very trap it wanted to set for others.

The tricky thing about marriage as “a legally regulated life-community of man and woman”

On 10 April 2019, the Federal Supreme Court for the first time declared a popular vote at federal level invalid because the Federal Council had published massively incorrect figures in the voting booklet and thus violated the freedom of voters.⁶ On 21 June 2019, the Federal Council subsequently annulled the result of the popular vote. Now the vote on the popular initiative “For marriage and family – against the marriage penalty”, which aimed to abolish the discrimination of married couples against unmarried couples living together in terms of federal taxes and OASI pensions, would have to be repeated. Since the initiative was rejected by the people on 28 February 2016 by a very narrow margin (50.8%) and achieved a comfortable approval by 16 ½ against 6 ½ cantons, it would be quite possible to be accept the second time.
However, the very originator of the initiative, the CVP, is turning itself completely upside down to prevent a second referendum from taking place. Why that? Quite simply, because the initiative text defines marriage as a “community between a man and a woman”.⁷ If the initiative is accepted, this definition of marriage would be placed in the Federal Constitution, which would stand in the way of the mainstream “marriage for all”. This is because today’s Article 14 FC merely states: “The right to marriage and family is guaranteed”, a revision of Article 54 paragraph 1 of the Constitution of 1874: “The right to marriage is under the protection of the Confederation”. Of course, this always meant marriage between a man and a woman.
The party leaders of the Christian Democratic People’s Party (CVP) – who, by the way, are seriously considering removing the “C” from their name – declare themselves today, like almost all other party leaders, to be supporters of “marriage for all”. They would therefore be happy if they could withdraw the popular initiative with all due respect, so that they do not have to face a discussion about the definition of marriage in the voting campaign.
The second ballot is scheduled for 27 September 2020, and the deadline for withdrawing the initiative expires at the end of May. The CVP therefore hoped for an acceptable counter-proposal in parliament. This hope will most probably not be fulfilled. Because on 18 December 2019, the National Council rejected - as the Council of States had already done in September – a proposal by the Federal Council that did not want to tax married couples more heavily than couples cohabitating.⁸ Instead, the FDP, GLP, SP and the Greens are calling for the introduction of individual taxation in which each and every person, regardless of marital status, pays taxes for himself. This would further weaken the importance of marriage and family as the basis for a prosperous social coexistence, and at the same time would create numerous substantive and administrative problems, including for the cantons. The only beneficiaries would be the fiduciary and tax accountancy companies, which would have their hands full.
Because there was no majority in favour of the Federal Council’s proposal, the National Council followed the decision of the Council of States on 16 September and rejected the deal with 113 votes in favour, against 80 votes by the CVP/EVP/BDP and SVP thus returning it to the Federal Council.⁹
Will the CVP have a brainwave for withdrawing its initiative by May? If not, we will have the chance in September to say yes to a federal tax tariff and to OASI pensions that do not discriminate against married couples, and at the same time to write into the Constitution of the Swiss Confederation: “Marriage is the long-term and legally regulated community between a man and a woman”.
* * *
So much in a nutshell to three important parliamentary topics in the winter session. All three will continue to occupy us in the future.    •

1    National Council: 123 yes from bourgeois fractions against 68 no from SP and Greens, with 5 abstentions; Council of States: 33 yes against 10 no, with 1 abstention
2    Rhyn, Larissa. “Neuer Kampfjet für die Schweiz: Der Gripen ist aus dem Rennen” (New fighter jet for Switzerland: Gripen out of running). Neue Zürcher Zeitung from 13 June 2019.
3    “First parliamentary session after the elections: Probably not a grab bag. Current Concerns No. 26/27 from 12 December 2019
4    19.051 “Gesetz über Überbrückungsleistungen für ältere Arbeitslose” (“Law on bridging benefits for older unemployed persons”). Fahne Council of States from 12 December 2019, Article 3 paragraph 5
5    Schäfer, Fabian. “Sozialausbau auch für Zuwanderer?” (“Expansion of social services also for immigrants?”) Neue Zürcher Zeitung from 20 December 2019
6    see “Protection of free will formation in direct democracy” and “An extraordinary Federal Supreme Court decision. A discussion with Prof. Dr Rainer J. Schweizer”, in: Current Concerns from 14 May 2019
7    Initiative text: “Die Ehe ist die auf Dauer angelegte und gesetzlich geregelte Lebensgemeinschaft von Mann und Frau. Sie bildet in steuerlicher Hinsicht eine Wirtschaftsgemeinschaft. Sie darf gegenüber anderen Lebensformen nicht benachteiligt werden, namentlich nicht bei den Steuern und den Sozialversicherungen.” (“Marriage is the permanently and legally regulated community between a man and a woman. From a tax point of view, it forms an economic community. It must not be put at a disadvantage compared with other forms of life, in particular with regard to taxes and social security”.
8    18.034. Federal law on direct federal tax (balanced couple and family taxation)
9    “Pläne für Abschaffung der Heiratsstrafe im Parlament gescheitert.” (“Plans to abolish the marriage penalty in parliament failed.” Debate in National Council. SDA-release from 18 December 2019