Framework agreement with Brussels or self-determination of Swiss citizens?

Direct democratic freedom of choice as a red line

by Dr iur. Marianne Wüthrich

Amazing developments are currently taking place in Swiss EU policy. For years politicians and entrepreneurs from various political factions have been calling for an institutional framework agreement with Brussels in order to have alledgedly more legal certainty in their business relations and cultural exchange projects. So loud were their voices that some EU bodies believed that “Switzerland” really wanted such an agreement and could therefore be put under pressure in many ways. For years, too, critical contemporaries have drawn attention to the incompatibility of such an agreement with the direct democratic rights of the citizens, without being noticed by the mainstream so far.
    Thus it is a pleasure that some trade unionists and social democrats come to realize that the obligation to take over EU law and the decisions of the European Court of Justice are not abstract ideas that we would somehow manage, but that social partnership and the entire state structure would be quite shaken up.

After the Federal Council had not revealed for years what he was actually negotiating in Brussels, head of FDFA1 Ignazio Cassis recently tried to address the growing discontent in the population by attempting to draw different “red lines” towards the EU; however, it reacted without any accommodation.2
Now finally movement has come into the matter. Paul Rechsteiner, President of the Swiss union federation (SGB) and SP member of the Council of States, has set out the markers by declaring the current accompanying measures to the free movement of persons agreement AFMP to be a real, that is, inalienable, red line. Shortly thereafter, the presidents of the major parties SP, FDP and CVP followed suit (the SVP is against a framework agreement anyway) and all of a sudden they unanimously demanded a provisional stop to negotiation with the EU. But now one thing at the time.
Controversial  red line:

Accompanying measures to the Free Movement Agreement AFMP

As a reminder: The 1999 Bilateral I were supported by the Social Democrats and the Swiss union federation only under the condition that the immigration of workers from EU countries would be accompanied by measures to protect domestic workers. Because it is well known that Switzerland has the lowest unemployment rate and the highest wages. The immigration was then also much larger than the Federal Council claimed in advance, a great burden especially for the border cantons, which are attractive especially for cross-border commuters (currently more 300,000). Therefore, the accompanying measures are indispensable for the domestic workers in today’s design.
They have been in force since 1 June 2004 and “allow the monitoring of compliance with minimum or usual conditions of work and pay at the place of work”. These controls mainly take place on construction sites and in the catering and hotel industry and are working more or less. There are also additional measures and sanctions.3 What could not be foreseen: since the first days after Bilateral I became operative, a flood of so-called self-employed people poured into the border cantons. In order to curb abuse, the Confederation laid down in the Posted Workers Act4 that service providers have to prove their independence on request (Article 1a) and have to comply with a notification period of 8 days (Article 6 (3)).

The EU lays down the law, the Federal Council knuckles under…

The Swiss accompanying measures have already been a thorn in the side of the EU for a long time, because they are much stricter than the EU regulation in several respects. For example, according to the EU, the 8-day rule is discriminatory for foreign companies. Furthermore, the EU makes the strange demand that Switzerland is allowed to control a maximum of 3 percent of companies and self-employed persons from the EU. An open invitation to take a chance on infringements? According to the daily press, today the Swiss inspectors check approximately one third of the companies and question the wages of one sixth of them, With 7 percent of the self-employed, they suspect bogus self-employment. Should we promote fraud and corruption henceforth? Finally, the EU is bothered by the fact that the legality of the accompanying measures is controlled by Swiss administrative authorities and courts and not by its own.5
In a nutshell: as in many other areas, the EU wants to impose its own rules and jurisdiction on Swiss worker protection. After all, that is the purpose of the framework agreement! In any case, Federal Councillor Johann Schneider-Ammann, head of the Federal Department of Economic Affairs, Education and Research (EAER) has understood the message from Brussels: he wants to shape the accompanying measures in “an EU accepted form”, which has to withstand “a possible assessment by the Court of Justice of the European Union (CJEU)”.6 Savvy?

… and SUF President Rechsteiner is in opposition

SUF President Paul Rechsteiner: “It would be naive to assume that the EU Commission is only concerned about the pre-registration period of eight days. Much more, the Commission wants a lever to influence Swiss wage protection as a whole, in order to weaken it.”
Responding to the EU having substantially tightened its Posting Directive: “The level of protection of the EU and Switzerland is not comparable. Our country needs independent and strong wage protection because we have the highest wages by far. The European trade unions are warning us not to make concessions. Ask the Austrians how glad they would be about our options for wage protection.”
On the warning against further reprisals by the EU: “The EU has just as much an interest in good relations with Switzerland as vice versa. I’ll keep calm.”
And more fundamentally: “If Brussels makes the framework agreement conditional on wage protection, then we make do without it. When negotiating, it is useful to keep calm anyway. Otherwise, our interests cannot be defended effectively.”
7
Remarkable tips for Swiss Federal Councillors and negotiators in Brussels!

Radical change of course of the party presidents

Half a year ago, it still has sounded like this: “Move on with the institutional framework agreement!” SP party president Christian Levrat and CVP foreign affairs politician Elisabeth Schneider-Schneiter announce the timetable desired by their party leaders: The referendum on a package deal including the Bilateral III, and the framework agreement, is to take place before the federal elections in October 2019. (“Neue Zürcher Zeitung” from 6 January 2018)
Today, FDP President Petra Gössi: “In my opinion, the Federal Council must now break off negotiations with employers and the cantons.” Without trade unions, “a solution based on social partnership would be hopeless”. In this way, “no majority can be found in Parliament for a framework agreement.” Gössi concludes: “If the Federal Council does not reach an agreement on the contents with Brussels, negotiations with the EU should be suspended for the time being.”
SP President Christian Levrat and CVP President Gerhard Pfister also call for the suspension of negotiations and the negotiation of a “standstill agreement” with the EU in order to avoid further reprisals on the part of Brussels.8

The red line for us as citizens

Just electoral tactics, to lose not too many voters to the SVP, which has always been against a framework agreement? Will the suspension be cancelled immediately after the parliamentary elections in October 2019 and will we continue on the one-way street to Brussels? If only the gentlemen don’t miscalculate!
The consequence for the vast majority of Swiss citizens is clear: we draw the red line where our direct democratic freedom of choice would be curtailed.

1    Federal Department of Foreign Affairs
2    see “Institutional Framework Agreement Switzerland-EU – Strategy or Confusion?”, In: Current Concerns Nr. 14, 29.6.2018
3    Swiss Confederation, Free movement of persons, Accompanying Measures (https://www.personenfreizuegigkeit.admin.ch/fza/de/home/aufenthalt_und_arbeitsmarkt/flankierende_massnahmen.html)
4    Bundesgesetz über die flankierenden Massnahmen bei entsandten Arbeitnehmerinnen und Arbeitneh- mern und über die Kontrolle der in Normalarbeits- verträgen vorgesehenen Mindestlöhne (Entsendegesetz, EntsG) of 8 October 1999 (as of 1 April 2017) (Federal Act on the accompanying measures for posted workers and on the control of the minimum wages stipulated in standard employment contracts)
5    “Es geht um mehr als um die 8-Tage-Regel”( It’s about more than the 8-day-rule), Tages-Anzeiger, from 10. 8. 2018
6    “Kampf um Lohnschutz. Von ‘Verrat’ und ‘Ver- trauensbruch’” (Struggle for wage protection. On ‘betrayal’ and ‘breach of trust’), St. Galler Tagblatt, from 9 August 2018
7    “Wir werden die Demontage der Löhne stoppen”, Interview mit Paul Rechsteiner (Stefan Schmid) (“We will stop the dismantling of wages”, interview with Paul Rechsteiner (Stefan Schmid)) , St. Galler Tagblatt, from 9 August 2018
8    “Drei Bundesratsparteien blasen zum Rückzug”, (Three parties of the Federal Council are sounding the retreat) SonntagsZeitung, from 12 August 2018

Former Federal Councillor Micheline Calmy-Rey changes her compass

mw. The former SP Federal Councillor has never made a secret of her support for Switzerland’s accession to the EU. Today it sounds quite different: “If the bilateral path comes to an end, accession to the EU would be possible. But the EU currently has no unified foreign policy, difficulties in financial and economic policy, no migration policy. I am therefore more cautious than before about this alternative.”
And continues: “The EU demands: We’re supposed to take over their regulation. Do we want the protection of our wages to be governed by European law? That the accompanying measures are subject to the European Court of Justice (EJC)? The European Court of Justice has so far placed freedom of competition above the protection of workers. If the Federal Council now considers exactly this, I understand the resistance of the trade unions.”1
Does this objection to Micheline Calmy-Rey‘s adoption of EU law also apply to other issues? Let‘s hope so!

Former Ambassador Paul Widmer: Major loss of sovereignty

In the Echo der Zeit of 14 August 20182 Paul Widmer, former Ambassador and Lecturer for International Relations at the University of St. Gallen, commented in fundamental terms on Switzerland’s loss of sovereignty due to an institutional framework agreement with the EU:

Paul Widmer: First and foremost, a nation always defends its own interests. And of course you have to try to get as close as possible, but you also have to know where your limits are.

SRF: Where would you say are these own limits?

Paul Widmer: In my opinion, our own limits are in a very great loss of sovereignty, which consists of Switzerland automatically having to adopt EU law in certain areas, and we would have nothing more to say about it. That is the real core problem and not the accompanying measures.“ And further: „[...] the loss of sovereignty affects our whole nation. We cannot continue to exist as Switzerland if we allow ourselves to be too restricted in our democratic rights.“

1    “I understand the resistance of the trade unions”, in: SonntagsBlick, 12 August 2018, interview: Florian Wicki and Simon Marti
2    “How to proceed with the EU Framework Agreement?” Radio SRF, Echo der Zeit from 14 August 2018

«Swiss law instead of foreign judges»

Federal Referendum of 25 November 2018

(Self-determination Initiative)

mw. The self-determination initiative addresses the very question raised here: How can Switzerland’s sovereignty vis-à-vis the EU and other powers be preserved as far as possible? The initiative requires in no way that Switzerland should “be in breach of contract” or that it should no longer respect the human rights of the European Convention on Human Rights (ECHR) – which are, incidentally, also contained in the Federal Constitution. (Thought-terminating cliché used by the opponents!) Instead, it is about the provisions of the Federal Constitution, ie the decisions of the People and the cantons, being implemented by legislation, and applied by administration and justice, which should actually be a matter of course in any democratic constitutional state. However, ever since the majority in the Federal Council, in parliament and the Federal Court has increasingly been focussing on the EU and other foreign powers, it bypasses and violates the constitution wherever it gets in the way of “international law”. For example, international law also includes bilateral treaties with the EU.
Here only this much: The dilemma between Switzerland’s obligations under international law and the sovereignty of the People and the cantons will have to be discussed and resolved anyway, as Federal Administrative Court Judge Simon Thurnheer points out in a remarkable and clarifying guest commentary in the Swiss newspa Federal Referendum of 25 November 2018
per “Neue Zürcher Zeitung.”1 A closer examination of the self-determination initiative will follow in one of the next issues of Current Concerns.

1    “Landesrecht und Völkerrecht. Die EMRK und die Selbstbestimmungsinitiative  (Federal state law and international law. The ECHR and the self-determination initiative)”, guest commentary by Simon Thurnheer. “Neue Zürcher Zeitung” from
18 July 2018


Text of the initiative

The Federal Constitution shall be amended as follows:

Art. 5 (1) and (4)

1. All activities of the state are based on and limited by law. The federal constitution is the highest legal source in the Swiss Confederation.
4 The confederation and the cantons shall comply with international law. International law is subsidiary to the federal constitution, subject to the mandatory provisions of international law.

Art. 56a obligations under international law

1 The Confederation and the cantons shall not enter into any obligations under international law that are contrary to the Federal Constitution.
2 In the event of conflict, they shall ensure that the obligations under international law are adapted to the prescriptions of the Federal Constitution, if necessary by termination of the relevant international treaties.
3 This is subject to the mandatory provisions of international law.

Art. 190 Applicable Law

Federal laws and international treaties subordinated to the referendum for the decision on approval are binding for the Federal Supreme Court and other law enforcement authorities.

Art. 197 (124)

12 The transitional provision for Art. 5 (1) and (4) (Principles of the rule of law),  Art. 56a (International law obligations), and Art. 190 (Applicable law)With their approval by the People and the cantons, Article 5 paragraphs 1 and 4, 56a and 190 shall apply to all existing and future provisions of the Federal Constitution and to all existing and future obligations under international law of the Confederation and the cantons.