Wanted: Representatives who are not casting one eye at Brussels

Elections for the National Council and the Council of States on 18 October 2015

by Dr iur Marianne WŁthrich

In three weeks’ time, the National Council will be elected in Switzerland, and in almost all cantons the Councillors are up for election. A key electoral topic for the continued existence of the federal, direct democratic and neutral Switzerland is Switzerland’s relationship with the European Union. Whereas several political parties had previously included the EU membership in their programme, today only the Social Democrats (SP) and the Greens openly advocate the fact that they are seeking membership of the EU in the 2015 elections, claiming that Switzerland would then have its “full say” according to SP position paper. (How much say the many, only theoretically “equal” small states will have beside the great powers in the EU is in the lap of the gods, however!) The other political parties favour the “continuation of the bilateral way”, however with very different span. So the ones ask for – in spite of the federal authorities’ duty, determined by the sovereign, to regain independent control of immigration – the continuation of the free movement of persons and the extension of the bilateral agreements at any cost. Many candidates do not even shrink back from an outline agreement dictated by the EU. By contrast, there is the requirement of other candidates: “no connection with the EU and no recognition of foreign judges, so that we can determine our destiny independently”. We citizens will have the choice on 18 October.

It has become obvious well enough for those who did not realise it prior to the votes on the Bilaterals I (May 2000) and the Schengen-Dublin Agreements (June 2005): Switzerland is not regarded and treated as an equal party to the contract by the EU, but should kindly adapt to the respective state of mind and so-called legal developments of the powerful partner. Unfortunately, the Federal Council and its team in the federal administration and diplomacy as well as some parliamentarians have been busily engaged in complying with the current requests by the superpower for the last few years. “Autonomous reenactment” is the euphemism used for the implementation of EU bodies’ suggestions into Swiss law.
Do you remember the “Great Stucki”? In Current Concerns No. 23 of 15 September 2015 we presented this great Swiss negotiator, who as fearlessly opposed the Nazi regime in the thirties as he opposed the three Western Allies in New York in 1946. Regrettably, today’s Swiss leaders are rarely cut from the same cloth.

Institutional outline agreement: farewell to sovereign Switzerland

Apparently, the obedient “autonomous reenactment”, adopted by the majority of the Federal Council and the Federal Assembly members, is not enough for the EU rulers. With their peculiar lust for basic and supposedly indisputable rules – such as the ideal dimensions of a cucumber or a rabbit hutch – the EU Commission insists on “mechanisms to ensure a more uniform and efficient application of existing and future agreements in the market access area”. Translated into understandable (Swiss) language: The European Commission does not approve of the Swiss authorities having their electorate breathings down their necks, who also want to have a say and sometimes refuse the “uniform” adoption of EU law on Swiss territory. And the EU bureaucracy could proceed “more efficiently” – assisted by our federal administration – if with each weightier regulation they did not have to wait for the referendum deadline of 100 days and perhaps even a referendum whose outcome woud be equally uncertain.
Well, we cannot expect anything better from a great power structure. It is however much more serious that the Federal Council does obviously not object to moving away from the Swiss sovereign state by granting the EU fundamental interventions into our constitutional state. An institutional outline agreement is intended to regulate first how the bilateral agreements could be adjusted to unilateral changes of the EU acquis, secondly how the EU can monitor the correct application of the agreement (on Swiss territory), and how thirdly, “a homogeneous interpretation of bilateral agreements [can be] ensured” and fourthly, which body should decide in case of discrepancies between Switzerland and the EU (see “Institutionelle Fragen: Informationsblatt”, in: www.eda.admin.ch).
The body that would monitor and interpret the Swiss application of EU law consistently and decide on disputes, would certainly not be the Swiss Federal Court, but the European Court of Justice, which only very rarely decides in favour of the Member State in processes between the EU Commission and EU Member States – let alone for the non-member Switzerland. Or it would be the so-called EFTA Court, which has actually nothing to do with the EFTA, but – according to its (Swiss) President Carl Baudenbacher – ensures that its decisions with respect to the EEA countries Norway, Liechtenstein and Iceland will comply with the ECJ decisions. Baudenbacher himself calls the EFTA Court the “little brother of ECJ” (see Current Concerns No 26 of 28 August 2013).
To summarise in one sentence: with an institutional outline agreement the EU could unilaterally change and interpret “homogenously” those agreements, that Switzerland settled with the EU, at any time. And if we were not willing to do so, the ECJ would determine the law: foreign law and foreign judges!

This is how it would probably operate with an institutional outline agreement

A recent example is the “advancement” of the Schengen-Dublin Agreement by the EU-Commission: For the placement of refugees in the EU Member States, a permanent distribution key is to be fixed. According to EU Commission President Juncker Switzerland – together with the EEA countries Norway, Iceland and Liechtenstein – is to be included into the distribution key dictated by Brussels and “accept the Dublin legislation and its development without exception”. Otherwise, “the agreements in question would be terminated”, the EU Commission announced in the daily press.
Not that we Swiss were not prepared to take in refugees or other people in need of protection. We have always done so, since the protection of persecuted people is part of our understanding of the state. As the depositary state of the Geneva Conventions and the seat of the ICRC it is quite normal of course for Switzerland and for us Swiss to contribute, either by granting the right to asylum or temporary admission for people from war and crisis areas, or by means of humanitarian aid in the refugee and IDP camps on site.
However, turning the distribution model of the European Commission – which has not even been approved by the Member States yet – quite easily into the “advancement” of the Schengen-Dublin Agreement and suppressing any opposition in advance by threatening opponents with dismissal, that’s a bit thick. Although we actually might take the threat easy, because we do not need Schengen-Dublin: We have indeed mastered our border patrol and our asylum law as well as the bureaucrats in Brussels, no problem.
For us, the citizens, the current superpower roar of the European Commission is a good example for what we would have to face in an institutional outline agreement. The European Commission could then come every day and impose on us the so-called “development” of the numerous bilateral agreements (there are more than 120 of them). Each kicking against it would be regulated by the EU Court (see above). There they are totally wrong! The Swiss people will never ever agree on their own disempowerment! Federal Councillor Burk≠halter and his top negotiator Jacques de Watteville should always remember this.
“Autonomous pre-enactment” –

the Federal Council lets it through on the nod, even in advance

Mr Juncker and his troupe will rejoice: his authoritarian style is not even necessary towards Switzerland, since the Federal Council has already settled matters in advance. On 18 September 2015, the Federal Councillors Sommaruga and Burkhalter met the media. While Didier Burkhalter announced the sensible decision of the Federal Council to use an additional 70 million francs for the refugee assistance locally, Simonetta Sommaruga revealed astonishing facts: Without waiting for the official request from the EU to Switzerland, she announced that the Federal Council had already “decided” on the EU’s claims in advance. Switzerland would participate in the 1st Relocation Programme (distribution of 40,000 people in need of protection) with the inclusion of 1,500 persons, and also in the 2nd Relocation Programme (120,000 people in need of protection), after consultation with the cantonal governments (https: //www.admin.ch, media conference, 18 September 2015).
So no “autonomous reenactment”, but as it were, an “autonomous pre-enactment”. Really autonomous, because the unilateral adoption of law happened voluntarily before it was clear whether the EU would find an agreement among themselves.

Renunciation of the national state: “There are no more national solutions”

Cleverly Ms Sommaruga made use of the EU’s difficulties to proclaim a kind of Socialist International. At the media conference she diagnosed the lack of a common European asylum policy and engages for (even) more power to the party headquarters, sorry – the headquarters in Brussels. Yes, she even offered the EU to go ahead in this direction:
“We are well prepared, highly legitimised, because we have demonstrated in Europe that you can perform a credible, consistent asylum policy. But now it is clear: There are no more national solutions. Although we have done our homework: There are no national responses to this European problem. And that’s why we want to do our part as well.” (Simonetta Sommaruga at the media conference, 18 September 2015)
Where is the logic? If the small country Switzerland brings about a better asylum policy (which has even been praised by the mightiest EU lady during her recent visit to Bern) than the Schengen Dublin program, – which was highly praised before its introduction but then soon turned out to be practically useless, – the National State Switzerland is nevertheless obviously superior to the EU’s centralized system, isn’t it? No, Sommaruga said, additional instruments “for special cases” were needed in addition to the Dublin mechanism, in short “a common, fair European asylum policy”. In any case she wanted to hurry Brussels up: “The Federal Council has also decided to commission the FDJP and the FDFA, to engage in the ongoing discussions with the EU for a lasting and binding distributing mechanism of people in need of protection within Europe.” (Media conference 18 September 2015)
We can only hope that chief negotiator de Watteville does not forget to demand something from the EU in return for the concessions that Switzerland made.
After this press conference, we can imagine that many people already have a vision of how they will take their seats in the EU headquarters, one day. Only the electorate was able to stop them up to now and we will continue to do so.
As I said: We Swiss have the choice on 18 October. And do not forget: The elected National Councillors and Councillors of States will elect the Federal Council in December.     •