Accordo quadro: basta! – The Framework Agreement is at an end

Now Bern is speaking plainly!

by Dr iur. Marianne Wüthrich

The many voices from politics, business and the population that have warned against the serious consequences of a Framework Agreement with the EU for the Swiss state model and the rights of citizens are having an effect: the Federal Council has taken a position vis-à-vis the EU. On 23 April, President of the Swiss Confederation Guy Parmelin held a lengthy discussion with EU Commission President Ursula von der Leyen, which – as was to be expected – did not result in an agreement on the substantive differences, but rather in the willingness of both sides to continue cultivating good relations.
  A pleasing success for Switzerland, on which the Federal Council can build further. Obviously, Guy Parmelin’s calm but clear way of saying what is important is suitable for communicating with Brussels.

“We can’t sign the agreement like this”

The statement of the President of the Confederation at the media conference in Brussels was brief but clear: “The Federal Council has always stated that Switzerland wishes to consolidate and develop its bilateral relations with the European Union. But it has also stipulated [...] that Switzerland will not be able to sign the Framework Agreement without satisfactory solutions on wage protection, on the issue of the Citizens’ Right Directive and on state aid.” He said that after discussions at the technical level, there were still significant differences in the positions of Switzerland and the EU. “It's not just about the three points as such, but about a holistic view.”1 
  That’s how it is. In fact, the “three points” contain the entire problem of the adoption of EU law and the role of the ECJ as the supreme court: Switzerland’s understanding of law and the state is worlds apart from that of the EU. This will be discussed in more detail later.
  Despite their differing views, the EU Commission president and the Swiss president parted on good terms. It had been important to meet in person at the highest political level, Guy Parmelin said. They had agreed to remain in contact and to continue negotiations at the technical level (Livia Leu, State Secretary / Stéphanie Riso, Deputy Head of Cabinet of Ursula von der Leyen). That’s right, parting in peace and no stress – a way to get along will be found even without an EU fence.

Parliament’s foreign policy committees intervene

On 26 April, President Parmelin and FDFA head Ignazio Cassis informed the Foreign Affairs Committees of the National Council (FAC-N) and the Council of States (FAC-S) about the status of clarifications with the EU.
  The National Council’s FAC – which includes some of the fiercest EU turbos in parliament – rejected a breakdown in negotiations by 17 votes to 8 – something the president of the Swiss Confederation had not even called for in Brussels – and called on the Federal Council to intensify talks with Brussels and to submit proposals to parliament on the outstanding points “in a timely manner.” “The majority is of the opinion that a satisfactory result can still be achieved,” FAC-N President Tiana Angelina Moser (GLP/ZH) said after the meeting with the Federal Councilors. However, she also mentioned that a minority of the committee had “fundamental concerns about the agreement.” She also said that some committee members had pointed out that the Federal Council, not the parliamentary committees, was responsible for conducting negotiations and assessing the situation.2 
  The mood in the Council of States committee was quite different. It did not explicitly call on the Federal Council to continue negotiating, but left it up to it to decide how to proceed. Committee President Damian Müller (FDP/LU) was pleased with the Federal Council’s new determination: “Until now, Switzerland was always on the defensive because we only said what we didn’t want.” Now, he said, it was time to make clear demands of Brussels. The statement of committee member Christian Levrat (SP/FR), the former SP party president, is noteworthy. He stated that without the EU changing its position, the agreement would not come about. From his point of view, this would by no means be a disaster.3 
  It is encouraging that more and more Swiss people from various political quarters are noticing this.

“The crucial point of the differences with the EU is the different interpretation of the free movement of persons”

On the evening of 26 April, a joint media conference of the Federal Council and the Foreign Affairs Committees took place. With the harmonious appearance of the two Federal Councillors, the wild rumours that Ignazio Cassis had been quasi dumped as Foreign Minister because President Parmelin had travelled to Brussels without him were buried in Swiss style. The media conference was all about the matter. Switzerland had made many compromises in the course of the negotiations, Parmelin said, but the “differences with the EU are fundamental.” Cassis added the reason: “The crucial point of the differences with the EU is the different interpretation of the free movement of persons.”4
  An excellent analysis of the situation in shorthand – the differences are indeed fundamental because the understanding of the law and the state structure of Switzerland and the EU (which is not a state, but has state-like structures) differ fundamentally. This applies not only to the interpretation of the free movement of persons, but in principle. With regard to the free movement of persons, Federal Councillor Cassis explained the different points of view as follows: For Switzerland, the free movement of persons refers to the employed and their families, whereas the EU demands the free movement of persons for all citizens of the Union.
  Stop! The Swiss “interpretation“ is based on the Agreement on the Free Movement of Persons, one of the treaties of the Bilateral Agreements I of 1999 between the EU and Switzerland, which was approved by the sovereign at the ballot box. On the other hand, the “interpretation” of the EU is based on the Citizens’ Rights Directive, which has no legal force for Switzerland because neither parliament nor the people have approved it. When the negotiations on the Framework Agreement began in 2013, the Citizens’ Rights Directive was not an issue, and in 2017, when Federal Councillor Ignazio Cassis took over as head of the FDFA, he declared the Citizens’ Rights Directive to be a “red line” for Switzerland, which was certainly meant honestly. Now, all of a sudden, we are supposed to adopt this directive unseen, which probably hardly any Swiss have ever seen or read, much less have understood in its full implications.

This is how the adoption of EU law would work according to the Framework Agreement

In the text of the Framework Agreement5, there is not a word about the Citizens’ Rights Directive – but that is not necessary anyway. According to this agreement, it would no longer be we Swiss, but the EU Commission and the European Court of Justice who would determine which EU law Switzerland has to adopt. According to Article 1(3), the agreement regulates the “procedure for the adoption of legal acts of the European Union” – “only” concerning the five so-called market access agreements and potential future agreements; but that is quite a lot. The Agreement on the Free Movement of Persons alone would already open Pandora’s box. From the EU Commission’s point of view, the Citizens’ Rights Directive is part of the free movement of persons and should therefore have to be adopted by Switzerland with all its future developments.
  If Switzerland does not agree with this “interpretation”, Article 4 of the Framework Agreement would come into play: According to paragraph 1, “the agreements and legal acts of the European Union, [...] will be interpreted and applied uniformly”. If “terms relating to EU law” are involved, “the provisions and acts shall be interpreted and applied in accordance with the [...] jurisdiction of the Court of Justice of the European Union”. (Article 4(2)). You got it? With the Framework Agreement, Switzerland would leave the decision on these and countless other serious “questions of interpretation” to the European Court of Justice ECJ. According to Carl Baudenbacher, President of the EFTA Court of Justice for many years, who knows EU law better than anyone else, legal acts and agreements drafted by the EU practically always involve “terms relating to EU law”. Of course they do.
  The court of arbitration, which was probably brought into play by a few clever EU turbos from the federal administration (because we Swiss have a positive attitude towards arbitration courts from our history), is regulated at large in Article 10 of the Framework Agreement. However, according to Carl Baudenbacher it merely serves as a fig leaf for the all-encompassing power of the European Court of Justice. This court would certainly not often rule in favour of Switzerland, because it is the court of the opposite party. Incidentally, even EU member states very rarely win their case at the ECJ in disagreements with the EU Commission.
  This is all rather far away from Swiss understanding of the state and the law…

A word on the content of the Citizens’ Right Directive

The “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” corresponds approximately, but not entirely, to the right of Swiss citizens within Swiss territory. It gives people from all EU states a far-reaching right of residence in the other EU states, even in the case of unemployment, a permanent right to stay after five years, the right to social welfare also for family members from outside the EU and considerable protection against expulsion for criminals. The purpose of the Citizens’ Rights Directive is a convulsive attempt to “strengthen the feeling of Union citizenship”: “Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union.” (Recital 17) And for the implementation of this ideology (creeping abolition of the nation states for the purpose of developing an EU unitary state, which no one except the EU bureaucrats wants) such a monster law is being constructed ...
  Of course, the rights guaranteed in the Citizens’ Rights Directive do not go out as far as the rights of their own citizens enshrined in the constitutions of the individual countries – that would not be feasible with 500 million people from 27 states. Nevertheless, the grafting on of this construct probably also means serious additional financial and social burdens for many member states.
  For Switzerland, with its high salaries, prices and social benefits, being forced to adopt the Citizens’ Rights Directive would be devastating. Already today it is tempting to immigrate to Switzerland’s social welfare system, because everyone knows that its payments are many times higher than those of nearly all EU countries, in some cases tens of times higher. When it comes to the real thing, even some editors of the “Neue Zürcher Zeitung”, once unanimously zealous supporters of the Framework Agreement, visibly falter. In the online edition of 28 April, Fabian Schäfer’s article on the EU citizenship directive was titled: “Two years of work, then social assistance and finally the right to permanent residence – why the Federal Council is refusing to accept the major point of contention with the EU.” Schäfer continues: “The Federal Council’s revealed negotiating positions on the Framework Agreement show how fundamental the resistance is against the Citizens’ Rights Directive.”
  With the Citizens’ Rights Directive, there would be a danger that the working Swiss population would have to help feed an increasing number of welfare recipients who have never paid contributions to our social services, so that our prosperity would be levelled down to the EU average. For economic reasons, too, it is therefore wiser for a small, direct-democratic and federalist state to go its own way as independently as possible, in collaboration with its neighbours.

Like fire and water

Very briefly on the other two “open points” in the negotiations on the Framework Agreement. We will take up the issue of state aid, which the EU wants to subordinate to its prohibition of state aid in principle in the Framework Agreement and in agreements to be negotiated in the future, again on another occasion – this is about the threat to the public service, which is of great importance to us for all population groups and parts of the country, as part of our basic cooperative values.
  On the third point, wage protection, Federal Councillor Cassis noted at the media conference on 26 April: “The accompanying measures would also be assessed differently: For Switzerland, the main issue is wage protection. For the EU, on the other hand, these measures represent a distortion of competition.”6 The EU recognises the principle of “equal pay for equal work” said “an EU official” in the press. Switzerland should be able to take measures as long as they are “proportional and non-discriminatory”.7 Two completely different worlds! In fact, the EU’s Directive concerning the posting of workers, with its largely digitalised and wide-meshed monitoring system, is worlds away from the intensive and effective controls on building sites and in the catering industry that are organised jointly by the trade unions and employers’ associations in Switzerland – in a federalist and democratically coordinated cooperation.
  For the Swiss trade unions and the Social Democrats, the accompanying measures were an indispensable condition in 1999 for consenting to the Agreement on the Free Movement of Persons and thus to the Bilateral Agreements I. And they work! No wonder that the Swiss Social Democratic Party and the trade unions want to keep the accompanying measures as designed by the Swiss social partners.

Outlook

One of the many Swiss who has come to the conclusion that we should “not pay any price” for the Framework Agreement is Dr oec. Gerhard Schwarz, for many years head of the NZZ economic editorial department and until 2016 director of the think tank Avenir Suisse. The author continues: “It would be wiser not to raise expectations too high with regard to policy towards the EU and to understand a longer period without new treaties not as a catastrophe but as an expression of strategic patience.” Gerhard Schwarz comes to the same conclusion as SP Council of States member Christian Levrat: “Further treaties and an institutional framework with the EU are not as existential as often claimed.”8
  Switzerland will continue to succeed in taking its place in the midst of Europe, as a cooperative small state that attaches the greatest importance to freedom and its own approaches to solutions. So far, we have been very successful in developing a creative and flexible Plan B when necessary. “The Federal Council is always thinking of alternatives,” President Parmelin replied to a journalist in Brussels. As long as we are not pestered with illegal and treaty-violating sanctions, we will also continue to be happy to make appropriate contributions to meaningful projects in poorer EU states. It’s actually all very simple if you know what you want and what you certainly don’t want.  •



1 “EU-Rahmenabkommen. Parmelin: ‘So können wir das Rahmenabkommen nicht unterzeichnen’”. (EU Framework Agreement. Parmelin: “We can’t sign the Framework Agreement like this”). SRF News of 23 April 2021
2 Point de presse FAC-N: “Schweiz – EU – Nationalratskommission gegen Übungsabbruch beim Rahmenabkommen” (Switzerland – EU – National Council Committee against abandonment of practice on the Framework Agreement) of 26 April 2021
3 Burkhardt, Philipp. “Keine Einigung mit der EU. Rahmenabkommen: Jetzt spricht der Bundesrat Klartext”. (No agreement with the EU. Framework Agreement: Now the Federal Council is speaking plainly.) SRF News of 27 April 2021
4 Burkhardt, Philipp. “Keine Einigung mit der EU. Rahmenabkommen: Jetzt spricht der Bundesrat Klartext”. (No agreement with the EU. Framework Agreement: Now the Federal Council is speaking plainly.) SRF News of 27 April 2021
5 “Abkommen zur Erleichterung der bilateralen Beziehungen zwischen der europäischen Union und der schweizerischen Eidgenossenschaft in den Bereichen des Binnenmarkts, an denen die Schweiz teilnimmt” (“Agreement to facilitate bilateral relations between the European Union and the Swiss Confederation in the areas of the internal market in which Switzerland participates”) of 23 November 2018; https://www.eda.admin.ch/dam/europa/de/documents/abkommen/Acccord-inst-Projet-de-texte_de.pdf
6 Burkhardt, Philipp. “Keine Einigung mit der EU. Rahmenabkommen: Jetzt spricht der Bundesrat Klartext.” (No agreement with the EU. Framework Agreement: Now the Federal Council is speaking claimly). SRF News of 27 April 2021
7 sda report. “Federal Council expects EU to make concessions on Framework Agreement”. Südostschweiz online of 27 April 2021
8 Schwarz, Gerhard. Die Schweiz hat Zukunft. Von der positiven Kraft der Eigenart (Switzerland has a future. From the positive power of uniqueness). Zurich 2021, p. 84. ISBN 978-3-03810-446-9

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