Don’t sacrifice the Swiss state under the rule of law and democracy to the EU integration mania

by Dr iur Marianne Wüthrich

The majority in the Parliament in Berne has fabricated a “priority to Swiss residents” light rather than to implement the constitutional mandate of the sovereign to control the immigration (Federal Constitution Article 121a). The resulting law is so weak that the EU Commission not only favorably takes note, but complacently noticed in a press statement it “has accompanied not only the process until today, but steered it a little” (see box).
Or in Swiss optics: whose interests the Swiss Federal Councillors and their entourage actually have represented during their frequent visits to Brussels since the referendum of 9 February 2014 is not entirely clear. Anyway, after two and a half years of commuting between Berne and Brussels the Federal Council communicated the decision of the EU Commission to the Swiss Parliament: because Brussels doesn’t want to newly negotiate the free movement of persons, the Parliament must now implement Article 121a FC to control immigration so that the free movement will not be scratched.

The press release of the EU Commission of 22 December 2016 shows crystal clearly: no negotiations at eye level took place in Brussels, but they were actually “directed”, not to say “dictated”: “The Swiss authorities and the European institutions have worked tirelessly to find a solution that would guarantee full respect for one of our founding principles: the free movement of persons. The Commission will closely monitor the implementation of this solution.” The Commission even says how and where the Federal Council should write its regulations amending law: “The Commission expressed the hope that the transposition and clarification work would be carried out in a spirit of transparency and close cooperation, particularly in the Joint Committee provided for in the Agreement on the free movement of persons.”1. Comment superfluous!

Little resistance in Parliament against breach of Constitution

According to the Swiss understanding of State – or in accordance with the principle of separation of powers which is of the essence of democracy – the Federal Council is not competent for legislation and for this reason not authorized to let themselves “conduct” by the EU Commission in the national legislation. (Not to mention the fact that the Federal Councillors have made their oath of office not on EU law, but on the Swiss Constitution.)
Responsible for the legislation are the National Council and the Council of States as well as the people (and Cantons). There was little resistance against the overthrow of democracy and the rule of law from the Parliament (outside of the SVP): In autumn 2016, some National Councillors tried in vain to save a piece of sovereign control of immigration, so Hans-Peter Portmann (FDP Zurich) and CVP party President Gerhard Pfister (Zug). On 16 December 2016, National Council and Council of States adopted a change of the Foreign Nationals Act which corresponds in no way to the constitutional order of the sovereign – what many MPs openly admit.
This is a cause for alarm! Is this deliberate breach of the Constitution already an approach to the practice of the EU to comply with their own contracts of a constitutional nature (such as for example the debt limit) only from case to case and thus give up the foundations of the rule of law?

Democratic separation of powers versus rule of the executive

The EU is an authoritarian and centralist structure that knows no separation of powers, but is based on the domination of the executive. The EU bureaucracy does not think much of decisions of national parliaments or referendums in the Member States. The EU Council consists of the heads of State of the Member countries and takes the political decisions. The EU Commission, whose members aren’t elected, but appointed by the respective Governments, is the executive branch of the EU, which tells the EU States what they should do. Therefore the Commission thinks obviously to have this right towards Switzerland. If the individual States are not willing, the Commission sues them at the European Court of Justice (ECJ) which “ensures that countries and institutions comply with EU law”. The European Parliament is not an independent legislature: it has only a right of co-decision in addition to the EU Council and no right of legislative initiative – this belongs to the Commission alone. (See ec.europa.eu)
Following the EU system, the Commission operates primarily with the respective head of State of a member or non-member State. But in Switzerland, there is no head of State. Its executive consists of seven equal Federal councils; the annually changing President of the Confederation has mainly representative duties in addition to the leadership of his department. As Mr Juncker must necessarily have a “head of State”, he meets with the respective President of the Confederation (2015 Simonetta Sommaruga, 2016 Johann Schneider-Ammann, 2017 Doris Leuthard).
Mrs Sommaruga and Mr Schneider-Ammann should have had to tell Mr Juncker that not the Federal Council, but the Parliament decides on the law for the control of immigration, and that the specifications of the sovereign are in Article 121a of the Federal Constitution. The Parliament could have decided – as this was discussed for a time – for example a “unilateral safeguard clause”, so the temporary introduction of quotas in the event of exceeding a certain threshold, as well as a genuine priority of residents. Or based on federalism the “Bottom-up” - model the former State Secretary Michael Ambühl developed on behalf of the canton of Ticino and the KdK (Conference of Cantonal Governments) and that would focus on the specific situation in branches and regions.
Later an agreement with the EU could be sought on such a basis. Fact is: the majority of the Parliament was unwilling to implement the constitutional order, although even EU Parliament President Martin Schulz advised this summer in conversation with some Councillors of State to find an “intermediate solution”: “How to solve this problem? This is the art that we must achieve. Whether we can reach that by a transitional solution aiming at the end to make again Constitution and treaties compatible, is worth at least much brain work. That’s why I think we should think about it.” (SRF on 29 June, 2016) Being taught so by a certainly not exemplary democrat and still not being able to show even this bit of courage – embarrassing, isn’t it!

Hardly any interest in the EU to apply the Guillotine Clause

Why many Swiss politicians gaze towards Brussels like hypnotized rabbits, is not rationally explicable. If it were really about agreeing with the EU on the basis on the vote of the Swiss people in the referendum, the Parliament could have implemented the constitutional mandate quietly and sit back. But as already experienced, punitive actions by Brussels are usually illegal but mostly less expensive for Switzerland.2
In a “guillotine”, i.e. the simultaneous annulment of the seven agreements grouped under “Bilateral I”, the EU is at the very least interested. Because Switzerland is an important – and in particular a solvent! – trade partner for the EU, as the EU Commission writes in a factsheet: “Switzerland is a very close neighbour of the EU – geographically, politically, economically and culturally. It is the EU’s third largest economic partner (trade in goods and services taken together), after the US and China, ahead of Russia and Japan. In turn, the EU is by far the most important trading partner for Switzerland, accounting for 65% of its imports and 44% of its exports of goods in 2015. In commercial services and foreign direct investments, the EU’s share is equally dominant.”3
From an economic point of view, the Bilateral Agreements I are not of very great importance to the EU, as well as for Switzerland as the important Free Trade Agreement of 1972 between the EFTA and the EC-countries is still in force with many later additions. On top, the tariffs and trade barriers for goods and services have already largely expired within the framework of the WTO (with the exception of agriculture).
Hardly in the interest of the EU, would be for example the abolition of the agreement on overland transport, which is part of the bilateral agreements I (actually over a million trucks annually in transit on the Swiss roads through the Alps – instead of the initially claimed maximum of 650,000! ahead of the vote). But above all, the EU won’t intent to terminate the Free Movement of Persons agreement. Because it isn’t the case that the new Swiss Constitution article issued 2014 requires a migration stop or even expulsion of EU-citizens living here. According to the factsheet of the EU Commission “over a million EU citizens live in Switzerland [in addition to a further million foreigners from non-EU countries; at a total of 8.4 million inhabitants], and another 300,000 cross the border daily for work.” These can still live and work here and can take their families over. The Swiss sovereign set in its constitution a reduction of the excessive immigration (roughly 80,000 net immigrants annually, 10 times more than predicted!).
All in all the question should be examined all over again, whether the bilateral agreements I and II are actually of importance to Switzerland. The presumption that it is primarily to bring Switzerland under the control of the EU institutions and not least to get financial contributions in various Brussels money pots, can’t be denied. Anyway, on 22 December 2016, after praising the Swiss implementation law created under its direction – the European Commission comes to the point: next, the Federal Council has to pass his message on the Institutional Framework Agreement: “Such an agreement is needed to provide legal certainty in EU Swiss bilateral relations (that is, to put Switzerland under the law of the European Court of Justice) and to express its support for Switzerland’s participation in the European Cohesion Programme” (to add further billions to the already payed 1.3 billion francs to EU projects in Eastern Europe).4

An alternative to the RASA initiative: the Federal Council ignores once again the will of the people

Knowing that the implementation act on the immigration article, which the Parliament has adopted on 16 December 2016, does not meet the constitutional mandate, the Federal Council is already planning the next step ignoring the will of the people. By adapting the Constitution to the deficient law, so to speak, its unconstitutional content should be aligned. Got that?
The popular initiative “Get out of the dead end (RASA)” was launched as a backlash against the acceptance of the Mass Immigration Initiative and includes the deletion of Article 121a and transitional Article 197 point. 11 of the onstitution. Well, the great majority of citizens doesn’t appreciate such “toughing out” (pushing through?), but please, if they want to give it a try.
Far more difficult to digest is the undertaking of the Federal Council, not simply and clearly to recommend denial of the RASA initiative, but to confront it with a counter-proposal. Two variants are currently in preparation by the FDJP (Federal Department of Justice and Police), the Parliament should consult on them and finally present one of them to the people together with the RASA initiative for voting. By this the Federal Council wants to “provide a broad discussion”.5 From the point of view of the direct democracy this is a most disturbing approach: the wide-ranging discussion took place already before voting on the 9 February 2014, including the usual giant state propaganda against the initiative financed by taxpayers. Nevertheless, it was accepted by people and cantons.
Of the two variants for a counter-proposal, only the “basic parameters” are known: the first one claims that “treaties under international law, which are of great importance for the position of Switzerland in Europe, are to be obeyed” when the control of immigration is concerned. In plain language: The bilateral agreements of Switzerland with the EU should be seen as constitutional, the right of initiative should be restricted and control of immigration should be made impossible – the opposite of the will of the people.
The second variant wants to remove the prescription of a three-year time limit from the Constitution, in which the control of immigration must be implemented by the Parliament or by a Federal Council regulation. That means Federal Council and Parliament wouldn’t be bound to a deadline and could postpone it ad infinitum – until the cows come home. A real alternative would be an extension of the time limit to three or five years.
A small consolation in these turbulent times for the Swiss model: None of these proposals will be accepted by the people and the cantons. Given the massive damage to the direct democratic and constitutional principles of Switzerland through our federal authorities, it is quite a cold comfort only.     •

1    European Commission welcomes progress in relations between the European Union and Switzerland, Pressrelease, Brussels, 22 December 2016
2    cf. “Switzerland as a research and training center and the EU bureaucracy”. Current Concerns No 26/27, 5 December 2016
3    European Commission. Factsheet. Relations between the EU and Switzerland, Brussels, 25 September 2016
4    European Commission welcomes progress in relations between the European Union and Switzerland Pressrelease, Brussels, 22 December 2016
5    Federal Council decides on the basis on the RASA Initiative, Berne, 21 December 2016

The EU directs

Spokesperson of the European Commission:
I’ll “[...] explain the role of the EU Commission, which it has played in this context.
President Juncker met with the Swiss Federal President, Mr Schneider-Ammann, at five occasions, and his predecessor, Mrs Sommaruga, three times, and he had, if I’m not mistaken, 8 telephone calls with Mr Schneider-Ammann to prepare the discussion of the law.
And I think one can say that the Commission has accompanied not only the process until today, but steered it a little, so that the matter is in a good direction. […]”
”[…] We could safely say, that President Juncker is very much enrolled and hasn’t spent more time with the President of any other country.”

EU Commission, Press Conference live  (LIVE EC Midday press briefing of 20/12/2016) http://ec.europa.eu/avservices/video/player.cfm?ref=I131398