Framework agreement with Brussels

In substance, it is no world-shattering question: Are Swiss helicopter pilots allowed to commercially transport passengers in Swiss airspace until the age of 65, or must Switzerland adhere to the EU age limit of 60? But it is a plausible example of what being forced to adopt EU law would mean for Switzerland’s sovereignty and for the freedom of our parliament to enact Swiss law. The adoption process would result in a massive shift of power from the legislative to the executive power within Switzerland. This case vividly illustrates which side the Federal Council takes when it has to choose between the interests of our country and the approval of Brussels.

Integrating Swiss helicopter pilots into the EU bureaucracy?

The Air Transport Agreement between Switzerland and the EU is one of the seven Bilateral Agreements I of 1999, which entered into force on 1 June 2002. It is also one of the five agreements that are to be subordinated to the framework agreement.
    Background: On 16 February 2021, the National Council Transport and Telecommunications Committee (TTC) submitted a motion to the National Council with the following content: “The Federal Council is instructed to create, in accordance with Article 23 of the Air Transport Agreement, the legal basis for a national professional pilot’s license for Swiss airspace, which will allow pilots to fly until the age of 65.”¹
    From the reasoning of the proposal: “Regulation (EU) No. 1178/2011 obliges Switzerland, like the EU, to limit the age of helicopter pilots to 60. This arbitrary age limit makes no sense. The medical studies published by the European Aviation Safety Agency (EASA) show no increased medical risk for professional helicopter pilots up to the age of 65 that would endanger flight safety, provided they pass the medical tests and are deemed fit to fly.”
    Concerning the time between 2014 and January 2020, the Federal Office of Civil Aviation (FOCA), via EASA applied for and was granted several exemptions from the 60-year age limit by the European Commission. “A further exemption for January 2020 to January 2022 was rejected. Since then, negotiations have stalled.”
    Comment: Why should the EU determine the maximum age for Swiss helicopter pilots to fly in Swiss airspace? Especially considering that many of them also fly missions for Swiss Air-Rescue Rega, which is surely grateful for every experienced helper!

Legislation is a matter for Parliament – the Federal Council is obstructive

For these reasons, the responsible National Council committee instructed the Federal Council, based on Article 23 of the Air Transport Agreement, “to create the legal basis for a national professional pilot license so that this question can be answered permanently and sustainably for Swiss airspace”.

Air Transport Agreement of 1999

Article 23 (1) of this Agreement does not affect the right of each contracting party to unilaterally amend its legislation on a matter regulated by the Agreement, subject to the principle of non-discrimination and the provisions of the Agreement.²
    The Federal Council recommended rejecting the motion. However, the National Council and the Council of States approved the motion on 3 June and 28 September 2021, respectively.
    So this is a clean-cut case. In Switzerland’s democratic constitutional state, Parliament is responsible for legislation. Parliament uses a motion to instruct the Federal Council to “submit a draft decree to the Federal Assembly or to take a measure” (Art. 120 of the Parliamentary Act). The Federal Council is evidently refusing to fulfil its duty – the motion has now been stalled for almost five years. The current parliamentary record contains the cryptic words: “Status of deliberations: Report on the implementation status of the initiative is available.”

Transfer of EU law without consent of the electorate

From the Federal Council’s statement: “Regulation (EU) No. 1178/2011 was transposed into the Swiss-EU Air Transport Agreement in 2012 […] and has been applicable law ever since.”
    It should be added that the aforementioned Regulation No. 1178/2011 is one of numerous EU regulations and directives that have been incorporated into the annex to the Air Transport Agreement since the conclusion of the Bilateral Agreements I and are therefore “applicable law” for Switzerland. The Swiss people approved the Bilateral Agreements I in a referendum in 1999, but they did not agree to the incorporation of future, unknown EU law into the agreements. The Air Transport Agreement essentially anticipates the paradigm shift from bilateral agreements on an equal footing to the planned institutional adoption of EU law.
    Due to the aforementioned regulation, Switzerland is already a member of the European Aviation Safety Agency (EASA), one of the EU’s overly bureaucratic agencies (to which we incidentally also have to pay substantial financial contributions). As a result, the Federal Council has to regularly travel to Brussels to ensure that Swiss helicopter pilots are allowed to transport passengers and conduct Rega emergency rescue missions in Swiss airspace!

Federal Council scurries to Brussels to say pretty please

The Federal Council continues: “Since 2014, the Federal Office of Civil Aviation (FOCA) has been requesting exemptions from this age restriction from the European Union Aviation Safety Agency (EASA). The EU Commission has approved these requests so far; however, since 2018, these exemptions have been limited. A further exemption for the period from 2020 to 2022 was granted only to pilots who also conduct emergency medical flights as part of their operations.” Furthermore, FOCA lobbied the Joint Committee of Switzerland and the EU for an increase in the age limit in 2020, and again in a letter to the EU Commission in February 2021.
    Summary of the EU Commission’s response of 1 March 2021: After more than six years since the age restriction came into force, exemptions will no longer be granted to Switzerland. The Commission threatened to “take appropriate enforcement measures in the event of deviations from applicable law.”

The Federal Council even proposes sanctions against Switzerland itself!

Instead of confronting the EU Commission, the Federal Council openly sides with them and even proposes appropriate sanctions against Switzerland on its own account: “For the time being, the EU Commission has left the scope of such measures open. However, based on Article 31 of the Air Traffic Agreement, a waiver of the mutual recognition of pilot licenses, including those for scheduled, business, and private aviation, or even significant market restrictions would, for example, be possible.”
    Article 31 of the Air Transport Agreement: “If a Contracting Party refuses to fulfil an obligation arising from this Agreement, the other Contracting Party may […] take appropriate temporary safeguard measures to maintain the balance of this Agreement.”
    This too is a foretaste of what we are in for with the adoption of the framework agreement, concerning large areas of our law, but also with regard to the principles of our state structure: The authoritarian EU Commission imposes sanctions, and the Federal Council helps them along. This is executive branch rule instead of a liberal model of government.

Under the Air Transport Agreement Joint Committee has command authority

The Federal Council continues: “The motion demands that ‘the legal basis for a national professional pilot license be created in accordance with Article 23 of the Air Transport Agreement.’ However, this provision does not permit unilateral regulations that contradict the principles of the agreement. While Switzerland can unilaterally adapt its regulations, these must be decided by the Joint Committee – that is, also by the EU Commission.”
    Because, unlike in other agreements of the Bilateral Agreements I, the Joint Committee of the 1999 Air Transport Agreement is not a body where representatives of the Swiss Federal Administration and of the EU Commission exchange views as equals and where questions can remain open in case of disagreement. Article 22 stipulates that the decisions of the Joint Committee are binding on the contracting parties and that the EU can “take temporary safeguard measures under Article 31” if it disagrees with Switzerland’s application of its decisions. Furthermore, it is highly doubtful whether the Federal Council’s representatives on the Joint Committee would advocate for Switzerland’s interests.

Let us just please avoid provoking a conflict with the EU…

In its response to the National Council committee, the Federal Council makes no secret of which side of the Joint Committee table its team would be on in such a case: “Should the motion be implemented despite the risk of countermeasures from the EU, a legal basis would have to be created at the legislative level. In practice, Parliament would have to pass legislation reaffirming its intention to deviate from the Air Transport Agreement. Switzerland would thus be deliberately provoking a conflict with the EU and jeopardising the hitherto very successful functioning of this agreement.” (Emphasis added mw)
    The Federal Council’s stance against the Swiss Parliament and its obsequious behaviour towards the EU should serve as a warning sign to us citizens. The fact that it is already so unilaterally advocating for the EU Commission’s position and thus against the independent legislative power of the Swiss legislature is alarming. In Switzerland’s direct democracy, it goes without saying that disempowering Parliament would also disempower the Swiss people, the sovereign. Without a law drafted by the Federal Parliament, there can be no referendum. •

¹ Motion 21.3020 “Creation of a national professional pilot license”

² 0.748.127.192.68 Agreement between the Swiss Confederation and the European Community on air transport of 21 June 1999