Free movement of persons – one of the mammoths in the room

“Neutrality also means keeping your distance from the zeitgeist, political fashions and trends. Those who attach themselves to the ‘fashionable’, the acclaimed and glamorous of today run the risk of ending up in the graveyard of yesterday.” This is Roger Köppel’s warning two weeks after the WEF, where FDFA head Ignazio Cassis embarrassingly distinguished himself as a show master instead of taking his place as a level-headed statesman of neutral Switzerland.¹
  Cassis also lacks “distance from political fashions” when it comes to the EU. After the failure of the Framework Agreement in May 2021, the matter could have been left to rest and more pressing foreign policy issues could have been addressed – there would truly be enough to do in the world for neutral Switzerland and its foreign minister. But far from it! On Swiss television in December, Cassis declared beyond all reality: “I am proud that we now have a broad package approach and, above all, that we are building on the bilateral path and not a framework, a horizontal path, like last time.”² Just like the “peace summit” in Davos, this slogan is a mere smokescreen – everyone knows that the “package” does not differ in its essential content from the Framework Agreement.
  In No. 1 of 16 January, we began to take a closer look at the new version of the failed Framework Agreement that Brussels would like to impose on Switzerland (“Everything completely different – or old wine in new bottles?”). Today we are looking at the free movement of persons, the key agreement for both sides, including the Swiss Federation of Trade Unions’ justified objections to the weakening of Swiss wage protection (and public services).
  “The Federal Council is entering into new negotiations with the EU. It wants to negotiate on a number of secondary issues. But it is ignoring the two mammoths in the room: the free movement of persons will bring Switzerland population growth that is unsustainable for years to come. And the Bilateral Agreements I have brought Switzerland far fewer benefits than the Federal Council and leading organisations have been claiming for more than twenty years. If you look at it rationally, their small advantages are far from outweighing the major disadvantages of the free movement of persons.” This is said by someone who is neither a trade unionist nor a “right-wing” politician: Professor Reiner Eichenberger³.
  The first mammoth takes up by far the most space in the Common Understanding delivered by Brussels.

Implanting the EU
Citizens Directive into Swiss law?

The opening of Common Understanding, paragraph 13, entitled “The free movement of persons” already makes you feel queasy: “The European Commission and Switzerland share the view that in line with the principle in paragraph 9, the Agreement between Switzerland and the EU of 21 June 1999 on the Free Movement of Persons (FMOPA) should be adapted to provide for the dynamic alignment by Switzerland on current and future EU legal acts in the area of free movement of persons.”⁴ It is highly questionable whether we Swiss voters share this view, if we only look at current EU law (insofar as it is comprehensible at all for non-EU law professionals), not to mention the future, unknown law.
  In a nutshell, Directive 2004/38/EC plays a dominant role in the required harmonisation of Swiss law. It is nothing other than the former red line of FDFA head Cassis, the EU Citizens Directive. The EU Commission is almost doing a balancing act to emphasise the alleged exceptions for Switzerland. For us Swiss, however, the political imperative remains that we must not allow a bureaucratic regulatory roller like the Citizens Directive, which is completely alien to our understanding of the law and to our state model, to be imposed on us.

Immigration and residence

• The principle: The EU Citizens Directive grants “the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States”, a fairly comprehensive right that should encourage many more families from 27 EU states to emigrate to Switzerland with its attractive living conditions. This is despite the fact that no EU member state already has to cope with as much immigration from the EU as Switzerland!

• It should be possible to prevent abuse of this comprehensive right, “notably in relation to access to social assistance”. However, the concept of abuse and the procedural provisions of the EU directive would apply, not Swiss law. So, no legal certainty for Switzerland.

• Right of permanent residence for EU citizens after five years of residence as an employee or self-employed person and for their family members, even if they do not come from an EU country. There are also additional declarations that are difficult to understand (Art. 16-18 EU Citizens Directive). The only thing that is clear is that in the future there will certainly be not fewer, but even more people from the EU living on Swiss soil.

• Swiss ID card does not fulfil EU requirements! Our ID cards “could not be used by Swiss nationals to exercise free movement”. We would, therefore, have to introduce EU-approved plain vanilla ID cards in order to be able to work or study in Germany or Italy. And that’s how far we’ll get!

• Protective measures: 1) Switzerland could “refuse access to social assistance” to certain persons under certain conditions or expel them so as not to place “an unreasonable burden on the social assistance systems” of Switzerland. 2) Obligation to declare self-employed persons: Switzerland may “take measures to ensure that self-employed persons do not circumvent the[...] rules.” Question: Who decides what is “unreasonable”? (Answer to follow shortly.)

Three hammers
on the EU Citizens Directive

Hammer 1: “Any dispute on the interpretation or application of these issues should be settled in accordance with the principles outlined in this document.” (i.e., with the involvement of the ECJ!) (Common Understanding, paragraph 13)

Hammer 2: “Switzerland unilaterally declares that, with this exception [i.e. the expulsion of convicted offenders], Switzerland would, in the present state of affairs, be able to take over Directive 2004/38/EC without amending the Federal Constitution of the Swiss Confederation.”  In plain language, this would mean that we would have the entire EU Citizens Directive with its numerous provisions and references to other EU directives or regulations in our Swiss legal system.

Hammer 3: The Federal Council, in the name of the Swiss sovereign, refrains from amending the Federal Constitution with regard to the EU Citizens Directive – it is really not authorised to do so!

Posting of workers –
big question marks at the
Swiss Federation of Trade Unions SGB

Common Understanding point 14 deals with the extent to which the high-quality Swiss wage protection, which Switzerland negotiated with Brussels in 1999 to get the Bilateral Agreements I through the referendum, would be preserved in the new version. In the usual bureaucratic manner, Brussels has included so many principles and exceptions as well as EU directives that the President of the Swiss Federation of Trade Unions and National Councillor (SP), Pierre-Yves Maillard, understandably has major reservations: “Yes, we are on board. We have finally moved on wage protection and are prepared to discuss the dynamic adoption of the law, provided that the current level of control and the current protection instruments are guaranteed. This is risky for us. That is why we also have very specific demands as to what is needed in return: more generally binding collective employment agreements, better rules for temporary work, no adoption of  EU expense regulations.”⁵ The umbrella organisation Travail Suisse also stated in its press release of 15 December 2023 that “wage protection would be significantly weakened by the agreement. This is not acceptable”.
  With regard to the first two quid pro quos – more generally binding CEAs and better protection for temporary workers – the SGB holds the employers’ associations and Swiss legislators to account. The trade unions could save the tug-of-war over the expenses’ regulation (country of origin or Switzerland?) as a possible compromise with Brussels. Swiss employers will probably fight tooth and nail against further generally binding (i.e., state-controlled) agreements with the trade unions. This is because in free  Switzerland it has been customary since the “labour peace” of 1937 for the social partners to reach agreement by peaceful means or to turn to a genuine court of arbitration organised on an equal footing according to Swiss standards. The co-operative, direct-democratic tradition is also effective in this area, with the result that practically no strikes are necessary in Switzerland.
  The head of the SGB, Pierre-Yves Maillard, has every reason to demand that the very good Swiss level of control and effective protection instruments be maintained. Point 14 of the Common Understanding does indeed refer to the “principle of equal pay for equal work in the same place”, but only in the context of “fair conditions for the free provision of services” à la Brussels.
  This means that the existing Swiss monitoring systems may be applied by the “monitoring and enforcement bodies under national law”. However, Switzerland would have to “transpose” the EU law on the posting of workers into its national law “within three years”. We leave the effort of studying the content of the relevant directives to the experts from the Swiss trade unions.

The fight of Swiss SMEs
against the bogus self-employment
of foreign providers

The draft from Brussels would only half-heartedly support the fight of Swiss SMEs against so-called self-employed workers, who have been crossing the border in droves after the introduction of the free movement of persons in order to work here at lower prices and under worse working conditions than the Swiss (point 14). The seven-day registration period required by the Swiss authorities to check whether a company is really self-employed is to be reduced to “a maximum of four working days”, although Switzerland would still be able to demand the relevant documents and, if necessary, a deposit. In this respect, Switzerland would not be bound by the EU law on the posting of workers or any amendments to it.
  But: Next hammer: “Any change in the level of protection of posted workers should be examined in its entirety, taking into account all the relevant provisions described above.” A rubber term par excellence! And who would carry out this assessment? “The dispute settlement mechanism set out in this document should apply.” This brings us back to the ECJ as the supreme authority …

A no-go for the SGB is the
liberalisation of rail transport
and the opening of the electricity market

In addition to the condition of high-quality wage protection, SGB President Maillard also took a firm stand in the interview against the liberalisation of the very well-developed and citizen-friendly public service in various areas desired by the EU: “The planned liberalisation of rail transport and the opening of the electricity market are a no-go for us.” Interviewer: “First you say you are on board. Then you come straight out with a catalogue of demands. You say yes, but you mean no.” Maillard: “We are honest. The trade unions are the only ones to put their demands clearly on the table. What other players are doing that? We don’t hear anything from the employers. We don’t hear anything from the Federal Council. We only ever hear how important an agreement is.”
  Maillard adds: “It is not our decision that the liberalisation of rail transport should suddenly also be part of the new European package. That was decided by the national government. The real aim of the Federal Council and the employers does not appear to be an agreement with Europe. They want to push through a liberalisation programme here in Switzerland.”⁶ (emphasis mw)
  It should be added that the EU elites and large corporations also want the same thing – the Swiss EU turbos and the committees in Brussels have long been in agreement on this. It’s hard to believe that there is so little resistance from the left! You can’t leave Pierre-Yves Maillard and Adrian Wüthrich from Travail.Suisse and their teams out in the cold!  •

¹ “Die Schweiz, gerne klein” (Switzerland, gladly small). Editorial Weltwoche of 25 January 2024
² Christen, Nathalie. “Verhandlungen Schweiz-EU. Cassis: ‘Ich bin stolz, dass wir auf den bilateralen Weg bauen’” (Switzerland-EU negotiations. Cassis: “I am proud that we are building on the bilateral path”). Interview SRF News, 10 vor 10 of 15 December 2023
³ Eichenberger, Reiner. Professor of Finance and Economic Policy at the University of Freiburg. “Liberale Politik. Bitte konkreter und glaubwürdiger” (Liberal politics. More concrete and credible, please). In: Handelszeitung of 23 November 2023
⁴ https://www.eda.admin.ch/eda/en/fdfa/fdfa/aktuell/newsuebersicht/2023/europa.html
⁵ Humbel, Georg and Kučera, Andrea, “Gewerkschaften. ‘Elisabeth [Bundesrätin Baume-Schneider] hat die Chance, in die Geschichte einzugehen’”. (Trade Unions. “Elisabeth [Federal Councillor Baume-Schneider] has the chance to go down in history”). Interview with SGB President Pierre-Yves Maillard. In: NZZ am Sonntag of 7 January 2024)
⁶ loc. cit.