Negotiating mandate with Brussels: “A paper like that should never be signed.”

Current Concerns: Mr Huwiler, you are the Schwyz government delegate to the KdK (Conference of the Cantonal Governments). I find it incomprehensible that almost all cantonal governments have voted in favour of the draft negotiation agreement between Switzerland and the EU. It was reported that only the canton of Schwyz voted against, and Nidwalden abstained.
Herbert Huwiler: That is correct. And it is even a rarity that this result has been announced.

EU supporters are
more strongly represented in the
institutions than among the population

Does this one-sided result have anything to do with the fact that the cantons were not able to comment individually as in a consultation, but that the management and the secretary of the KdK are EU turbos and the answer came out accordingly?
This consultation is somewhat outside the normal process. The federal consultation procedures in the legislative process, for draft laws that subsequently come before parliament, are still exactly the same. Each canton is contacted individually. But this consultation is about foreign policy: the Federal Council wants to resume negotiations with the EU – strongly encouraged by this very KdK, which was outraged when Federal Councillor Cassis announced the breakdown of negotiations in June 2021. On 15 December 2023, the Federal Council published the guidelines for a new negotiating mandate and sent them out for consultation. The KdK wrote a statement, which the cantons approved in the final vote, with 24 in favour, 1 against and 1 abstention.

Why do almost all cantonal governments agree to such a proposal?
(laughs). You will have to ask them yourself. A qualified majority of 18 votes (out of 26) is required. Each canton has a delegate who puts forward the opinion of the entirety of the government. This means that only in our canton did the government say no. We know that our population sees it the same way as the government. The other cantonal governments probably did not all vote yes unanimously. Some people said that this was just a statement on the start of negotiations, not the outcome. But it is true that EU supporters are more strongly represented in the institutions than among the population. I often experience this myself, in the elected authorities and in the administration, and there is often a discrepancy between the decisions of parliament and the outcome of the referendums.

How did the KdK’s response come about?
The five members of the Executive Board and the General Secretariat under Secretary General Roland Mayer made a proposal at the beginning of December, and the cantons were able to put forward their amendments. These were summarised in mid-January and compared with the Board’s proposal. Version 2 was discussed on 2 February and further proposals were submitted. This was all done in a relatively short space of time and over the festive period. My mandate as a representative of the Schwyz government was this: If we are successful with our applications, we can agree. This was not the case. Some of our proposals did receive a few votes, but when they were then voted on, the majority were against.

No dynamic adoption
of legislation in important areas

Why did the canton of Schwyz say no in the final vote?
The three main reasons:
  Firstly, we do not want a dynamic adoption of legislation, especially in the area of the free movement of persons.

KdK position statement point 32: “[...] the cantonal governments are in principle prepared to agree to a dynamic adoption of legislation in the area of the free movement of persons in corresponding negotiations with the EU.”

Our wording was precisely the opposite: “We do not want a dynamic adoption of law, especially not in the area of the free movement of persons.” What we could live with is the dynamic adoption of law in the area of technical rules, for example how to label the package of medicines.

“Surely it cannot be
that de facto the European
Court of Justice has the last word”

The second main reason is the whole process of dispute resolution; we don’t agree with that.

The KdK president, Markus Dieth, says: “The cantons do not want foreign judges”, and there will not be any, but the arbitration tribunal will decide, and the European Court of Justice (ECJ) has nothing to say, so to speak.
Yes, that is exactly what they say.

KdK position paper point 30: “The cantonal governments agree that the arbitral tribunal should refer questions of interpretation or application of those provisions of the agreements which are taken from EU law to the ECJ. [...] It is also important that the decision on the dispute itself remain with the arbitral tribunal at all events. The cantonal governments are therefore in favour of the arbitral tribunal – and not the ECJ – always making the final decision [...].”

These are sometimes juridical subtleties with major consequences. That is why we put it like this: “It can surely not be that the European Court of Justice de facto has the last word.” The KdK board said that we should not be afraid as there would be a court of arbitration. But the European Court of Justice is de facto above it, and this is who determines the interpretation, while the arbitration tribunal simply adopts it. The rather shady juridical trick is that it is the arbitration tribunal that decides, not the ECJ. Personally, I do not believe that the arbitration tribunal will ever deviate from the ECJ’s decisions. That is why we said: “de facto”, so that nobody can say: You don’t get it in the canton of Schwyz. That was the second main reason.

“The mandatory referendum is in
the fundamental interest  of the cantons –
there is no way we can say no to that”

The third reason for our nay is the mandatory referendum. I am very surprised by the voting behaviour of the cantons. The attitude of the canton of Schwyz is: as cantons, we must demand from the outset that the proposal be subject to a mandatory referendum. This is in the fundamental interest of the cantons and there is no way we can say no to this. This proposal from the canton of Schwyz received the most votes in favour, but unfortunately not a majority. If not even we want a majority of the cantons, who will? This was a dealbreaker for us in the Canton of Schwyz: if that is not included in the KdK statement, then we will say no.

Cantonal representatives who do not demand a mandatory referendum – they should in fact be sent home, don’t you agree?
The small cantons in particular should insist on this, in my opinion. After all, the requirement of a cantonal majority gives power to us small ones. Otherwise we only have to let the populous cantons such as Zurich, Bern and Geneva vote, as the majority is roughly constituted by them.
  Those who want the EU treaty know themselves that they have fewer chances at the ballot box if they are subject to the majority of the cantons, which is why they want to eliminate this from the outset. It was therefore stated that it would only be possible to assess the question of a mandatory or optional referendum once the result of the negotiations was available.

Why can’t it be assessed? The Common Understanding already contains practically all the supposed result.
Yes, the outcome of the negotiations will be roughly the same, that is also my opinion. It has always been our argument that no matter what the final outcome is, a mandatory referendum is definitely needed for such an important proposal. The final decision will be made by parliament, and that will take the cantons’ views into account.

“A paper like that
should never be signed”

Isn’t also the package approach an smokescreen? They say that there would no longer be a standardised regulation, but that we could then negotiate exceptions in the individual treaties.
Yes, of course it is a smokescreen, that is the purpose of this full package that the EU supporters want. It is of course possible to agree on everything, but then you would have to be sure that what has been agreed will remain the same. However, the dynamic adoption of legislation means that everything newly regulated in Brussels in the future will also be adopted. A paper like that should never be signed.
  The only area where the KdK is still offering some little resistance is the Citizens’ Rights Directive. There are already a few critical statements, and the KdK is at least demanding some clarifications:

KdK statement point 34: “In particular, the cantonal governments welcome the fact that the adoption of the UBRL [Citizens’ Rights Directive] is limited only to gainfully employed persons and their families and that to the other groups of persons, the previous provisions of the Agreement on the Free Movement of Persons continue to apply. This is intended to prevent abuse of the Swiss social security system and to ensure that the granting of permanent residence permits continues to depend on gainful employment without comprehensive social assistance. The cantonal governments expect that in the course of the negotiations, terms that are still largely unclear according to the current state of knowledge, such as duration of gainful employment, extent of dependence on the social welfare system, (non-)co-operation in the search for work, will be specified [...].”

It is of course true that social welfare particularly affects the cantons, because in the end it is they who will pay.

The KdK says yes to the UBRL or to wage protection or to other areas if they are regulated in such and such a way. But the EU does not want to conclude a framework agreement with us so that we can then come up with 100 exceptions, does it?
No, of course the EU does not want that. But of course we will be consulted again on the outcome of the negotiations. Theoretically, there is the hope that the cantons will then suddenly say no after all. Foreign policy is actually a matter for the federation. But much of this draft treaty would encroach deeply on the sovereignty of the cantons, so we should put up a fight. But we are not fighting!

Centralised superpower EU does
not fit in with the Swiss state model

The KdK published a study on this 20 years ago: “The cantons facing the challenge of EU accession”. At that time, the really fundamental questions were discussed. On the one hand, we have the EU with an acquis communautaire, which even at that time comprised 80,000 pages and was designed to be centralised and large-scale, and on the other hand, we have Switzerland, which is designed to be direct-democratic, federalist and small-scale. A number of experts pointed out at the time that this did not fit in together – that Switzerland would have to be completely reorganised. The adoption of the law refers to EU law of the past, present and future. That can simply not work, Switzerland would suffer damage.
Yes, I fear that like the devil fears holy water. But back then it was about Switzerland’s full accession, not so?

Yes, but today’s proposal tends to go in the same direction, just not in relation to all areas of law. Not yet. But the contradiction is there, too: The EU and Switzerland do not suit.
Yes, this will never suit. But it always takes two to make a treaty. I am prepared to conclude a treaty on an equal footing. If one of the two partners does not agree, there will be no treaty. And anyone who violates the contractual obligations must not be penalised with extraneous measures, such as the withdrawal of stock market equivalence.

Some people say that an agreement would give us more legal certainty and that the EU would no longer be allowed to do such things. How do you see that?
I agree with the supporters on this point: The contractual, legal path is better for the small state than power politics, where the big state is simply the stronger one. The consequences of deviating from the treaty are more clearly regulated in the new draft, they say. On the other hand, we have seen with the EU that when the going gets tough, they will not stick to treaties but pursue power politics instead.

The draft states: If Switzerland violates a provision (for example, because the people voted against it), the EU can take “appropriate compensatory measures”. What is “appropriate” is determined by the arbitration tribunal, says the paper, but in practice it is settled by the EU Commission and the ECJ.
Then this is a political decision, not a legal one. And what upsets me is that the EU member states are breaking their own laws. If we were to sign something, we would be the paragons. But the big EU countries care nothing about their rules. That was already evident with the Maastricht criteria. They said that nothing could happen to the euro, it would be safe, but hardly anyone adhered to the criteria. Also the ban on state aid is not adhered to, whenever this happens to suit.

So we are agreed, legal certainty is only possible on an equal footing, on the basis of good faith. Thank you very much for this interesting interview, Mr Huwiler.  •

(Translation Current Concerns)

* Herbert Huwiler is a member of the cantonal government of Schwyz and representative of the Schwyz government at the Conference of Cantonal Governments.