Institutional Agreement Switzerland-EU
Shaking the Foundations? Decision by the People and the Cantons indispensable
by Dr iur. Marianne Wüthrich
The Swiss Federal Council is expected to publish the package of agreements negotiated with Brussels, along with the approximately 30 legislative drafts intended for its implementation, before the summer recess of 2025. It will also initiate a consultation process on this monumental proposal, which spans around 1,400 pages. At the beginning of 2026, the Federal Council intends to submit the draft to the Parliament. The Federal Council will announce, at the start of the consultation, whether it will recommend a mandatory or optional referendum to the people, but the final decision will be taken by the Parliament.
Unsustainable decision
by the Foreign Affairs Committee
On 11 February 2025, the Foreign Affairs Committee of the National Council (FAC-N) voted 15 to 10 against a mandatory referendum. Their questionable reasoning was that the EU treaty package does not constitute an “accession to a supranational community” according to Article 140 of the Federal Constitution.1 This argument is dishonest, as the agreement effectively resembles an accession in numerous legal areas and profoundly affects the political rights of citizens and the structural governance of Switzerland, necessitating a decision at the constitutional level by the people and the cantons.
Secondly, it is cowardly for our elected representatives to shirk their responsibility to the sovereign by leaning on the assessment provided by the Federal Bureau of Justice, as commissioned by the Federal Council. This body holds no authority over Parliament. Both the National Council and the Council of States are free to demand a mandatory referendum for a matter of such significance based on their discretion. It would be honest if EU proponents admitted that they avoid the inevitable majority of cantons opposing EU integration like the plague. This is precisely why our prudent constitutional fathers introduced the cantonal majority for constitutional amendments in 1848: to ensure that more populous cantons cannot impose their will on the smaller ones. This reflects the federalist principle, one of the pillars of the Swiss state.
Appreciably diminishing enthusiasm
Even within the business association economiesuisse – formerly one of the most ardent EU proponents – enthusiasm for an EU Framework Agreement 2.0 is noticeably waning. Furthermore, many members of the Swiss Trade Association (SGV) reportedly do not support the agreement according to media reports. An increasing number of Swiss enterprises do not wish to see their entrepreneurial freedom curtailed by the inflated Brussels bureaucracy. For economiesuisse president Christoph Mäder, it is “decisive” that the EU treaty prevents an extension of EU regulation into new areas not covered by the bilateral package in a “watertight” manner.2 However, this desired watertight protection is inherently contradictory, as the hallmark of the agreement is precisely that Switzerland would have to adopt future EU laws that are currently unknown. Claims that a failure of the treaty would spell dire consequences for the Swiss economy are conspicuously subdued: “Certain companies might prefer to invest outside Switzerland, but the effects would likely only become broadly apparent in the medium to long-term,” states the NZZ editorial board. It is all over town: our economy is significantly better positioned than that of most EU states, and Switzerland has every reason to remain as independent and sovereign as possible.
Does the CdC
represent the cantons’ Interests?
The “Conference of cantonal governments”3 (CdC) is scheduled in March to debate its course regarding the consultation. Established over three decades ago to purportedly represent the interests of the cantons in the federal external policy, especially concerning Switzerland’s relations with the EU, one must question whether the CdC genuinely upholds the cantonal interests or if it is more aligned with the streamlined communication methods of Brussels. The fundamental trait of federalism is that each canton speaks for itself, albeit often in mutual consultation, but no centralised “Council of Ministers” akin to the EU model is necessary for this.
In a talk with Current Concerns, Herbert Huwiler, a member of the government of the canton of Schwyz and his canton’s delegate in the CdC, emphasises the essential importance of the autonomous role of Switzerland’s 26 cantons within the federal state and reiterates his call for a mandatory referendum on the EU treaty package. It is reassuring to know that, in his view, individual cantonal governments will scrutinise the treaty draft with the EU meticulously, and there is hope that they will not settle for a unilateral position from the CdC headquarters. •
1 Media release by the Foreign Affairs Committee of the National Council (FAC-N) of 11 February 2025
2 Schöchli, Hansueli. “Ohne Rezession in der Schweiz dürfte es der EU-Vertrag an der Urne schwer haben – sogar in der Wirtschaft ist der Sukkurs nur lauwarm” (Without a recession in Switzerland, the EU treaty would likely struggle at the ballot box – even support from the business sector is only lukewarm.) In: Neue Zürcher Zeitung of 4 February 2024
3 Switzerland’s 26 cantons are the constituent elements of the Swiss Confederation. They possess a wide range of powers and are thereby involved in the development of Switzerland’s policy on Europe when their interests are at stake. The cantons define their positions within the Conference of cantonal governments (CdC), which has a representative at the Mission of Switzerland to the EU. (www.eda.admin.ch)
Each canton will form its own opinion on this important question
Interview with Herbert Huwiler*
(picture Huwiler)
Current Concerns: Cantonal Councillor Huwiler, we spoke almost a year ago when the Conference of cantonal governments (CdC) incomprehensibly approved the draft negotiation agreement between Switzerland and the EU. The canton of Schwyz, the canton you represent in the CdC, was the only one to say no at the time, while Nidwalden abstained. Now it’s time for the next round. In spring, the Federal Council will put out the text of the negotiation package and a series of internal amendments to the law for consultation. As I read in the newspaper, the leadership of the Conference of Cantonal Governments wants to centralise its consultation response. The cantonal governments are to send their positions to the head office without the population finding out their content. In March, the CdC wants to decide how to proceed with the consultation process. Your colleague from the canton Zug in the CdC, Cantonal Councillor Silvia Thalmann-Gut, believes that a statement from the CdC carries much more weight than the statements from 26 cantons. What is your opinion on this?
Herbert Huwiler: So far, I have only learnt from the newspaper that the CdC’s Executive Committee plans to submit a central consultation response. The Executive Committee has not yet officially commented on this. And it can only remain a request, because the cantonal governments decide for themselves whether they want to send their consultation directly to the federal government or limit themselves to submitting a statement to the CdC. Because the documents the Federal Council will send will be sent to each canton individually. Therefore, this can at most be a request from the Steering Committee and never an order. Even if the CdC were to hold a vote and a majority of the cantons were to decide in favour of a central statement, this would never be binding for each individual canton. That would go far beyond the CdC’s competence. Therefore, the government in each canton decides for itself whether it wishes to endorse the CdC’s central statement or send its own separate statement to Bern.
Based on your experience so far, don’t you think that many people would agree with a centralised response from the CdC?
My guess is that they would not. Because the last time there was a centralised response, which you reported on1, it was not an official consultation procedure, even though it was called a consultation because the Confederation wanted to hear what the cantons thought in principle about its draft guidelines for the negotiations. This time, we have to deal with an official consultation procedure because the package contains various legislative amendments. Draft amendments to legislation must always be submitted to the cantons, so that they have the opportunity to submit their consultation responses. We have about two consultations per week on various legislative amendments that are planned in Bern, and most cantons give their opinion on even the most insignificant draft legislation. It would be very surprising if, for the first time, cantons suddenly decided to dispense with individual opinions and favour a collective majority opinion on this central project. I don’t think that will happen. It is difficult to estimate, but it is important to know: Each canton can decide for itself how it wants to handle it, and if there are any votes by the CdC bodies on this topic, they will definitely not be binding on the cantonal level.
That’s good to hear.
I must add that we have not yet made a decision as the cantonal government of Schwyz, as the consultation process will not start until May. Experience shows that we respond to every consultation we receive. In theory, any government could decide against it in this case, but in my opinion it would be the wrong place to set such a precedent for such an important project.
Is it already certain that the consultation process will start in May?
That’s what we were told. In December 2024, we were told that the negotiations had been finalised and that the treaties would now first have to be translated into all national languages. We then need to examine the legal amendments necessary to fulfil this treaty, and these legal amendments need to be drafted. In total, it will be a package of around 1,400 pages, which will take some time. I think May is ambitious, but the Federal Council has said it will manage it.
There is talk of a consultation period of only three months. Is that correct?
Yes, that’s what was communicated. The plan today looks like this: The package will be sent out in May and then the consultation period will last three months.
Half of this period is during the summer holidays.
That’s right, it’s a short deadline.
… for so much text! Isn’t it to be feared that some participants, for example some cantonal governments, will be happy if the CdC secretariat presents them with a sample template that can be completed without having read everything? Or what do you think?
That would be a nasty insinuation. Of course, that would be the easiest way, but I think that every canton will form its own opinion on this important issue by reading through the documents. We have not yet talked about the details among the cantons. We have simply said among ourselves that it is a short deadline, but we have to do this work. And it can also be distributed. Not all employees are always on holiday and not everyone has to read all 1,400 pages, but the work can be distributed among different people. I can’t speak for others, but I assume that the documents are read. Of course, it is possible that some of the 1,400 pages will be prioritised. Everyone knows roughly what the controversial points in this treaty will be, and it is foreseeable that the main focus will be on these points.
In addition to the fundamental concerns that the institutional link poses a threat to Switzerland’s political system, many voices can now be heard, even within economiesuisse and the trade association, that are sceptical about the EU treaty from a business perspective. Shouldn’t this be a reason for our cantonal representatives in the CdC to take a closer look? Is this a topic of discussion that the business community is no longer so enthusiastic about?
I have also read that there are sceptical voices in the business community. I don’t know whether these voices are capable of winning a majority within the associations, but I’m sure that not everyone will simply applaud them. We also don’t yet know the details of the contract and the detailed drafting of the legislation. That’s why it’s difficult to predict anything with certainty. What will certainly influence the position of individual cantonal governments, however, is the opinion of business organisations on this entire package. The opinions of individual stakeholders will certainly be noted with interest.
Is there anything else you would like to add?
No, I can’t say any more at the moment because only the broad outlines are known and nobody has yet seen the actual content of all these papers. Only a few people can claim to know everything.
But the basic points are known and we must not be distracted by the details. You mentioned the key issues in the last interview: Adoption of law, jurisdiction...
That’s right. We are looking closely at how this is now being organised.
I would like to briefly return to an important question for the cantons: whether the bill should be subject to an optional or mandatory referendum. The Federal Council has not yet said what its position on this will be.
Yes, I can really speak on behalf of the canton of Schwyz. We have already expressed our opinion in the consultation, which you are familiar with, that we are fundamentally of the opinion that the majority of the cantons should apply to such an important issue. And my personal opinion is that, as a cantonal representative, we should always be in favour of giving greater weight to the interests of the cantons.
Thank you very much for the interview. •
1 Negotiating mandate with Brussels: “You should never sign something like this” Interview with Councillor Herbert Huwiler. In: Current Concerns No. 5 from 12 March 2024. https://www.zeit-fragen.ch/en/archives/2024/nr-5-5-maerz-2024/verhandlungsmandat-mit-bruessel-so-etwas-duerfte-man-nie-unterschreiben
* Herbert Huwiler is a member of the cantonal government of Schwyz and representative of the Schwyz government at the Conference of Cantonal Governments CdC.