Switzerland-EU negotiations – familiar content in new packaging

by Dr iur. Marianne Wüthrich

Before the parliamentary elections in October, there was no word on the status of the tug-of-war between Bern and Brussels. On 8 November, the Federal Council announced that it had concluded its internal talks with the cantons and the social partners as well as the exploratory talks with the EU Commission. The Federal Department of Foreign Affairs (FDFA) will now prepare the draft for a negotiating mandate. In terms of content, the Federal Council is keeping a very low profile; formally, the whole thing should be structured somewhat differently to the framework agreement that failed in May 2021.1
  However, the trade unions – who had been involved in the planning phase – already gave away internal details at their media conference on 6 November. They have a lot to find fault with in the Federal Council’s dossier. By way of their criticism, they are making a helpful contribution to informing the population in an unvarnished manner.

“Package approach” or
“institutional framework agreement”
– all the same difference

The Federal Council is still far from fulfilling its constitutional mandate, namely to represent the interests of the Swiss population. Instead, it is expecting us to accept a practically unchanged new version of the failed institutional framework agreement in a new guise.
  With the “package approach”, the institutional rules of the EU system, which would apply to all existing and future bilateral agreements between Bern and Brussels, are no longer contained in a central agreement. Instead, the basic rules of EU law would be discreetly incorporated into each individual existing or future agreement (in each package).
  Brussels has insisted on the following well-known basic rules for ten years now, because they are part of the EU system: Switzerland’s obligation to adopt the EU’s current and future legal developments, Switzerland’s de facto subordination to the jurisdiction of the EU Court of Justice (“Neue Zürcher Zeitung”: “For the EU, that is like a holy relic”) and adoption of the EU ban on state aid (in plain English, liberalisation/privatisation of the Swiss public service). So it makes no difference to us whether this thing is to be called a “framework agreement” or a “package approach”. In this sense, the “Neue Zürcher Zeitung” states: “Nothing has changed in central elements compared to the failed framework agreement.”2 What is and remains essential for us citizens is that the Swiss state model does not fit in with the undemocratic and bureaucratic EU system.

  • According to the Federal Council’s press release, the overall package (Bilaterals III) would include the five existing market access agreements of Bilaterals I (free movement of persons, land transport, air transport, agriculture and mutual recognition of production standards), each supplemented by the rules of EU law.
  • But on the other hand, a whole series of new agreements would be added: “electricity, food safety and health, participation in EU programmes (in particular Horizon Europe), the resumption of regulatory dialogue in the financial sector and the establishment of a structured political dialogue.” (Federal Council press release dated 8 November 2023) These new agreements would withdraw further extensive areas of life from Swiss law and subject them to the jurisdiction of the EU Court of Justice – what exactly they should contain and what they would bring us is as yet unclear.
  • The Federal Council mentions Switzerland’s “regular contribution to cohesion within the EU”, which Brussels expects, in a subordinate clause. Personally, I have nothing against this as long as we have a say in the amount and purpose of the payments (e.g., for the promotion of vocational training). It is one of the tasks of neutral Switzerland to assist other countries in word and deed where they need it. In any case, we would prefer this to having our freedom and sovereignty restricted by the superpower EU.

The Federal Council’s press release does not mention the EU Citizens Directive, which Federal Councillor Ignazio Cassis described as a “red line” when he took over as head of the FDFA a few years ago. According to the “Neue Zürcher Zeitung”, Switzerland “wants to avoid two things in particular here: immigration into social welfare and unconstitutional restrictions on deportations”.3 According to the “Neue Zürcher Zeitung”, these goals have been “achieved according to information from Bern”. But let us see that in black and white first!

It is our Federal Councillors
duty to explain the Swiss
state model to their colleagues

Instead of explaining to their colleagues in our neighbouring countries and elsewhere why the two systems do not fit together, our federal councillors allow the Brussels bureaucrats to inconspicuously package their rules into the individual treaties. Treaties, nota bene, some of which we do not even need because they are not in our interests, or which we would like to help shape as equal partners. We sometimes hear that Switzerland cannot expect to be treated as an equal partner by the EU because the EU is much bigger and more populous, and this opinion is not only expressed by some EU politicians themselves far removed from democracy, but also, surprisingly, by some Swiss citizens – what a peculiar argument! The Swiss cantons, for example, enjoy rights which are absolutely equal, even though their populations are extremely different in size. Explaining the basics of Swiss democracy to EU politicians would be a more urgent task for our politicians and diplomats than constantly travelling back and forth between Bern and Brussels to catch up on the latest command.

Wage protection and public service
instead of a liberalisation programme

With this apt title, the Swiss Federation of Trade Unions (SGB) addresses not only employees but also a large section of the population. In his press release, Chief Economist Daniel Lampart summarises: “In the talks [with Brussels], the Federal Administration in charge of the exploratory talks has agreed to a reduction in wage protection and a liberalisation of the electricity market for small customers as well as market access for Flixtrain and other providers in cross-border passenger transport.”4

  • Wage protection: The SGB points out that Switzerland has the highest wages in Europe and yet one of the most open labour markets, to which far more workers are posted than vice versa from Switzerland to the EU. Wage dumping and temporary work that is difficult to monitor have increased: “Around a fifth of companies get caught in wage inspections” (emphasis mw). This is because Switzerland has “by far the most wage inspections in Europe”, says Lampart, and these are not left to the state, they are executed by the social partners (employers and employees together). If Switzerland were to adopt EU law on wage protection, this would inevitably mean a weakening of today’s well-functioning wage protection.
      Vania Alleva, President of the trade union Unia, reports on an example that “got caught in the wage inspections”: around 90 workers from Poland, Latvia and Lithuania were employed by a Dutch contractor on a construction site in the Basel region, earning an average of just nine francs an hour instead of around 27 francs – some of them as little as five francs an hour. Vania Alleva comments: “The impending social upheaval is unacceptable for the workers in this country and for us trade unions. And the political damage of such a dam break would be immense.”5
  • Public service: Adrian Wüthrich, President of the independent employee umbrella organisation Travail.Suisse, is clearly opposed to the liberalisation of the electricity market in connection with an electricity agreement. He reminds the Federal Council that in Switzerland, the voters have the say: “The Federal Council must not make any commitment to open up the electricity market for private households as part of the negotiations without separately waiting for the domestic discussions and referendum votes on this.”6

Let us here insert the Federal Council’s press release of 8 November in its own words: “So, the public service, for example, will not be affected by the negotiations.” A bold claim! It is a good thing that the Swiss trade unions speak plainly.

“Swiss public transport
must not fall into bad EU ways”

All trade union representatives at the media conference also clearly rejected the EU’s demand to open up passenger transport to private companies. Adrian Wüthrich: “Opening up passenger transport to private companies represents a paradigm shift and a threat to the Swiss public transport system.” Matthias Hartwich, President of the Transport Workers’ Union (SEV): “Switzerland’s public transport system is a success story. […] This well-functioning and good system is the envy of our neighbours […]. People and goods reach their destinations reliably, punctually and in an environmentally friendly way.” Hartwich warns: “The liberalisation that has been forced on the rail sector in parts of Europe has generally led to poorer services, worse working conditions for employees, unpunctuality and unreliability. We want reliable railways in Switzerland in the future, too – for people and goods. This is necessary in order to transfer traffic from road to rail; the opposite is happening in the EU.”7
  Hartwich reminds us that in Switzerland, public transport is part of the public service: “The Swiss electorate and parliament have repeatedly made it clear that Switzerland wants to retain the existing public transport system. The people do not want conditions like those in Germany. They therefore reject the liberalisation of public transport as demanded by parts of the EU Commission. They do not want a reduction in the public service.”

The trade unionists’ conclusion

“An agreement with the EU with a simultaneous weakening of wage protection, as well as a liberalisation in rail transport and in electricity supply is doomed to failure from the outset.” (Adrian Wüthrich)
  “Destroying the functioning Swiss public transport system in order to reach an agreement with the EU Commission is out of the question for the SEV.” (Matthias Hartwich)
  “The Federal Councillors must correct these flaws and represent the interests of the Swiss people in their negotiations with the EU. The Federal Council must safeguard wage protection and the public service in these negotiations.” (Daniel Lampart)  •

1 “Der Bundesrat beschliesst, ein Verhandlungsmandat mit der Europäischen Union (EU) zu erarbeiten” (The Federal Council decides to draw up a negotiating mandate with the European Union (EU)). Federal Council press release of 8 November 2023
2 Schöchli, Hansueli. “Schweiz/EU. In Kernpunkten bleibt Brüssel hart” (Switzerland/EU. Brussels remains firm on key points). Neue Zürcher Zeitung of 8 November 2023
3 ibid.
4 Lampart, Daniel. Media conference on 6 November 2023. (SGB-Position zum Verhandlungsmandat mit der EU-Kommission) (SGB position on the negotiating mandate with the EU Commission)
5 Alleva, Vania. Unia Central Secretariat. “Stand Europa-Dossier: Lohnschutz nicht gesichert” (Status of the European dossier: wage protection not secured). Point de Presse of 6 November 2023
6 Wüthrich, Adrian. Media conference on 6 November 2023 “Europapolitik: Lagebeurteilung und Forderungen der Gewerkschaften. Nur ein echt verhandeltes und ausgewogenes Vertragspaket hat vor dem Volk eine Chance.” (European policy: assessment of the situation and trade union demands. Only a genuinely negotiated and balanced treaty package has a chance before the people)
7 Hartwich, M.. “Öffentlicher Verkehr der Schweiz darf nicht unter die Räder der EU kommen” (Swiss public transport must not fall victim to the EU). Address at the media conference on 6 November 2023

Michael Ambühl: Overall package is expected to facilitate swallowing bitter pills!

mw. The main difference between the ominous new “package approach” and the failed framework agreement was recently explained by former FDFA negotiator for the Bilaterals II, Michael Ambühl, on SRF radio: “Now we have an agreement that not only regulates institutional issues none of which are really in our interests and all of which would only mean concessions by Switzerland to the EU” (emphasis mw).
  “Now there is a Bilateral III package [...], in which there is a better balance between give and take. For example, it is possible to negotiate positive agreements for Switzerland, such as an electricity agreement, also in the food sector, in the health sector, where we can help shape things. Then the overall package can more easily include the odd bitter pill or two, which may be easier to swallow.”

  • Dynamic assumption of rights: “This is a tricky issue in terms of democratic policy, but we will probably have to give in here.” Says Michael Ambühl. (Do we have to, indeed?) It is easier to achieve a derogation with regard to certain issues in individual agreements, such as wage protection or the Citizens’ Rights Directive. Michael Ambühl mentions a whole series of such exemptions that he believes he can obtain in Brussels. Do the EU bodies see this the same way?
  • Dispute settlement procedure (not mentioned in the Federal Council’s press release): “If one party does not want to give in, the other [...] could impose compensatory measures [...], for example a fine. This measure must be ‘proportionate’.” An “independent body” is needed to determine what is proportionate. Ambühl believes it should be possible to “find a solution to the satisfaction of both sides”. Interviewer’s question: “Is this one of the bitter pills that Switzerland has to swallow, that it has to accept the ECJ?” Michael Ambühl: “It is important to the EU that there is not just any independent court, for example a court of arbitration. Because the ECJ has a monopoly on interpreting EU law. A solution will certainly be found here that does not infringe on the Court of Justice’s monopoly on interpretation.” It will be interesting to see out of which hat we will conjure up an “independent body” that does not infringe on the ECJ’s monopoly.

On a positive note, Michael Ambühl recommends not allowing the EU to pressure us into a timetable and points out that Switzerland is an “problem-free partner” for Brussels, reliable, without large debts and without corruption.

Source: Karasek, David. “Michael Ambühl: Wieso soll es jetzt klappen?”
(Michael Ambühl: Why should it work now?).
Radio SRF Tagesgespräch (daily talk) of 9 November 2023

Our website uses cookies so that we can continually improve the page and provide you with an optimized visitor experience. If you continue reading this website, you agree to the use of cookies. Further information regarding cookies can be found in the data protection note.

If you want to prevent the setting of cookies (for example, Google Analytics), you can set this up by using this browser add-on.​​​​​​​