Federal Council and Parliament show unusual resistance

Stocktaking at the beginning of the 2018 winter session

by Dr iur. Marianne Wüthrich

The federal referendum on the self-determination initiative (SBI) is over. Only one third of the voters voted in favour. One of the main reasons for the disappointing result is once again an extremely sharp counter-campaign, which was largely based on untruths that were deliberately set into the world. For example, the slogan “No to the anti-human rights initiative” or the absurd claim that acceptance of the initiative would result in the “automatic termination” of hundreds of important contracts for the economy. That and why these statements do not apply has already been explained in detail in Current Concerns. Part of the counter-program was also the propaganda against the authors of the initiative, because the SVP (Swiss people’s party) has been in the way on the path to Brussels for 26 years (EEA vote 1992).
    But the real challenge in the run-up to this and many other referendums in recent and future years is the uniquely strong position of the sovereign in direct democracy. The bringing down of the SBI is merely a piece in the mosaic of the big business game with the aim of breaking open the sovereign states - not just Switzerland. Ultimately, it is therefore the Swiss people themselves who must constantly oppose attempts to crack the system embodying the Swiss model.
    It is the task of every citizen to maintain and strengthen this resistance. We expect our representatives of the people to be attentive and persistent in safeguarding the rights of the people and parliament. After the vote is before the election: The federal elections in autumn 2019 will certainly come - and are already showing some effect!

UN Migration Pact: Council of States demands vote in parliament

On 29 November, the Council of States, as first chamber, refused with 22 no to 14 yes with 4 abstentions to drop the signing of the Pact entirely.1 After all, it clearly decided with 25:15 votes that the Federal Council has to submit the Pact to parliament for approval.2 On 6 December, the National Council will decide on two identical motions.
The migration pact aims at a worldwide free movement of persons, in the sense of global capital, and thus at the weakening of sovereign states and democracy (see Current Concerns from 14 November and 28 November). Already five EU members and other states reject this idea. Switzerland would do well to follow their example. On 29 November, even in the German Bundestag, the proponents of the Pact only very narrowly prevailed (372 in favour out of 644 votes, 153 against, 141 abstentions).3
Actually, the Federal Council is solely responsible for the decision to sign the Pact, because it is so-called “legally non-binding”. Shortly before the referendum on the SBI, however, this prime example of the dominance of executive power rattled many parliamentarians. The Parliament has now taken this important business into its own hands, and Federal Councillor Ignazio Cassis has cancelled his trip to Marrakech.
It is to be hoped that the National Council will at least join the Council of States and thus support the serious objections of its own Political Institutions Committees. The effects of the migration pact on our sovereignty and public welfare would be so serious that the Parliament should actually subject the decision to a popular referendum. That is not yet the case – but it can still be done.

Cohesion billion: A clear sign from the Council of States to Brussels - a fine democratic political lesson!

On 29 November, the Council of States, as first chamber, approved the payment of a further CHF 1.3 billion over ten years to the EU Cohesion Fund4 only on condition that the EU renounces discriminatory measures against Switzerland - and this practically unanimously, with 38 votes to 1 and 2 abstentions.5
Background: As is well known, last year’s President of the Confederation Doris Leuthard promised EU Commission President Juncker 1.3 billion Swiss francs in November 2017 in front of running cameras - without having been authorised to do so by Parliament and without demanding any consideration in return!
In the summer of 2018, the Federal Council led – after that! – a consultation procedure (Federal Council press release of 29 September 2018). Many participants, including a whole number of cantonal governments, demanded that the Federal Council and Parliament only pay the money “if Switzerland’s interests are safeguarded in the dossiers that are central to their relations with the EU”, for example the Glarus state councilor.6
Along this line, the Political Institutions Committee of the Council of States voted 6 to 4 in favour of a temporary suspension of cohesion payments: “In the view of the PIC new contributions to the EU will only be considered if the EU grants unlimited recognition to Swiss stock exchanges and visible progress is made in bilateral relations”. The Finance Committee followed suit. The Foreign Affairs Committee (FAC), on the other hand, recommended that the Council of States approve the payment with 6 votes to 6 and the President’s deciding vote.7
In the Council of States debate from 29 November, the proposal of the minority of the FAC (six members of the FDP (the Liberals) and SVP parliamentary groups) surprisingly prevailed. The following condition was attached to the federal decree on the framework credit for cohesion: “Obligations may only be entered into on the basis of this framework credit if there are clear signs of improvements in bilateral relations with the European Union and the EU does not adopt any discriminatory measures against Switzerland”.
The Council of States finally voted almost unanimously in favour of this minority proposal from the “centre-right” (by the way, the no vote and the two abstentions came from the SVP parliamentary group, because the latter is fundamentally opposed to payments of cohesion funds). Such a thing rarely happens in the Council of States! According to an insider, this astonishing result is also related to the forthcoming elections: Most voters do not want people’s representatives to fill the EU coffers with our billions in tax revenue for nothing.
For the National Council, which will probably deal with the framework credit for cohesion in the spring session, the stakes have been set.
Negotiations on the framework agreement between Switzerland and the EU are deadlocked
A unique farce has been taking place between Brussels and Berne for four years now. The EU wants to create a “roof” over the more than 100 agreements between Switzerland and the EU in order to create “common rules” (= EU law) and thus “legal certainty” (for whom?). In fact, such a construct was doomed to fail from the outset because the EU system happens to be incompatible with the Swiss state structure. Accordingly, the parties are getting increasingly entangled in the negotiations.
Now the EU Commission has once more painted the town red: According to the press, EU Commissioner Johannes Hahn has once again set the Federal Council a “final date”, 7 December.8 For its part, the Federal Council has postponed the meeting planned for 30 November to 7 December. Because it is now in a completely new situation: For the first time its majority has fallen - against the framework agreement. (The Federal Council is a collegial government and takes its decisions according to the opinion of its majority).

Majority in the Federal Council has turned: No to the current version of framework agreement

For some time now, the discussion in Berne has mainly revolved around the accompanying measures for the free movement of persons, which – not only from the point of view of the trade unions – are indispensable for the protection of domestic jobs from wage dumping and sham service companies. The EU, on the other hand, insists in principle on the adoption of EU law, which protects employees far less against immigration from other EU states. On 27 November, three Federal Councillors met for the umpteenth time with the heads of trade unions and employers’ associations and with cantonal representatives. The programme on the Swiss television news “Tagesschau” lasted 1:02 minutes and brought nothing new: The trade unions insist on the Swiss wage protection measures, the Federal Council wants “to reach agreement with the EU on the framework agreement before the end of the year”.9
But what is absolutely new is that the two SP (Swiss Social Democratic Party) Federal Councillors Simonetta Sommaruga and Alain Berset – who have actually always been in favour of closer integration of Switzerland into the EU – do not want to leave the trade unions out in the rain now and have therefore taken sides with the two SVP Federal Councillors Ueli Maurer and Guy Parmelin, who have always been opposed to a framework agreement. This means that four Federal Councillors are opposed to the other three from the FDP and CVP (Christian Democratic People’s Party), i.e. the Federal Council as a whole is opposed to the current version of the agreement and to Brussels.

Wage protection discussion distractsfrom actual legal natureof Framework Agreement

Despite these new majorities, the Federal Council has still not disclosed what should really be in the treaty. For the mysterious framework agreement would have to overcome the high hurdle of a popular referendum, which would understandably give the EU turbos in the Bundeshaus a headache. However, keeping the contents of the treaty locked up for this reason does not comply with the rules of direct democracy.
Anyway, the essential contents have long been known: Switzerland would have to automatically adopt past and future EU law, and the EU Court of Justice would decide how EU law is to be interpreted. A court of arbitration could at most decide on a few important disagreements. Whatever legal content the Federation of Trade Unions or the Federal Council today refer to as red lines – something quite different is of real central importance: If Switzerland were to commit itself to adopting laws that the EU would not adopt for another 5 or 10 years, we as citizens would waive our political rights in advance. And that applies to an unknown number of laws with unknown contents. Whether in 5 or 10 years EU leaders will allow restricting themselves by the red lines, they once promised Switzerland, is most questionable. It is also still unclear for how many and for which bilateral agreements Switzerland would have to adopt EU law.
So the real reason why the Federal Council won’t tell us what exactly is included is obvious: If we could read it in black and white where Brussels wants to intervene, then the federal government of Berne can forget about signing the framework agreement.

Trade unions want to prevent a yes to Limitation Initiative

On 31 August 2018, the SVP and the Auns (Action for an Independent and Neutral Switzerland) submitted their popular initiative “for a Moderate Immigration” (“Limitation Initiative”). This initiative calls for the termination of the Agreement on the Free Movement of Persons (FMPA) if the Federal Council is unable to negotiate a cessation with the EU within one year. This is why, according to recent newspaper reports, union leaders are insisting so firmly on the Swiss accompanying wage protection measures. Not that their trade unionists should come up with the idea that by managing immigration independently they could protect themselves even better against wage dumping.
By the way, the limitation initiative is the result of the parliament’s failure to implement the constitutional article on controlling immigration (mass immigration initiative). And the reason for the non-implementation is that the majority of our elected representatives have stared transfixed like rabbits at every frown of the ladies and gentlemen in Brussels when formulating their changes to the law.

The small state of Switzerland is much more flexible than some people think

In fact, the EU states themselves have a great interest in a neighbourhood on good terms with Switzerland. Although it is small, it has a great deal of purchasing power and, above all, financial solvency. Brussels would also be reluctant to forego most bilateral agreements. In addition, the small state of Switzerland has the enormous advantage of being very flexible and, thanks to direct democracy and a certain inherent thrift, is usually able to make ends meet better than other countries. We could live well without an FMPA and especially without the land transport agreement. We can certainly also live without EU stock market recognition, just as we found a viable way after being thrown out of Erasmus+ to organise student exchanges much less bureaucratically and even cheaper – and in addition we were even able to financially support foreign guest students. It goes without saying that we want to continue to engage in a lively economic and cultural exchange with the other European states and their peoples, as we have always done, but please on an equal footing.    •

1     Motion Germann 18.3935. UN Migration Pact. No signature by Switzerland. On the decision of the Council of States: SRF News of 29 November 2018
2    Motion Political Institutions Committee of the Council of States PIC-S 18.4103 and Motion Foreign Affairs Committee of the Council of States FAC-S 18.4106. UN Migration Pact. Submitting the approval decision to the Federal Assembly
3    Neue Zürcher Zeitung from 30 November 2018
4     FDFA. Business 18,067 “Economic and social disparities in the enlarged EU. 2nd Swiss contribution to selected EU countries”.
5     SRF News from 29 November 2018
6     Consultation response Canton Glarus 19 June 2018 www.admin.ch/ch/d/gg/pc/documents/2948/Zweiter-Schweizer-Beitrag_Stellungnahmen.pdf
7     Press releases of the PIC-S from 12 October 2018, of the FC-S from 19 October 2018, from the FAC-S of 26 October 2018
8     St. Galler Tagblatt from 30 November 2018
9    SRF News from 29 November 2018

An institutional framework agreement with the EU must be subject to mandatory referendum

The Federal Constitution stipulates

    Art. 140 Mandatory referendum
    1 The following must be put to the vote of the People and the Cantons:
    [...] b. accession to organisations for collective security or to supranational communities:

If the National Council and the Council of States should ever approve a framework agreement – which we hope will not happen – then, from the point of view of constitutional law, an obligatory vote by the people and the cantons is necessary. For although the Framework Treaty is not identical with EU accession, it would result in massive restrictions on the direct-democratic and federalist rights of citizens in broad areas of law that are not yet known. The expected cutbacks in people’s rights are comparable to those that would occur if we were to join the EEA. In 1992, Parliament therefore made this subject to a mandatory referendum.
This classification under constitutional law is confirmed by the current preliminary draft of the Federal Council for an extension of the mandatory referendum to
“international treaties whose implementation requires an amendment to the Federal Constitution or which contain provisions of constitutional rank in one of the following areas [...]” (Federal Constitution Art. 140 para. 1 b to new).1
It is to be expected that some parliamentarians hope that the optional referendum (without a majority of the cantons) will reduce the risk of failure somewhat. But keeping the people’s rights small in the election year is not a favourable option. And to postpone the referendum beyond autumn 2019 for tactical reasons would be too transparent a manoeuvre. So, either an obligatory referendum – or much better: an abort of the whole exercise.

1     “Mandatory referendum for international treaties of a constitutional nature; implementation of Motion 15.3557 Caroni”. Explanatory Report of the Federal Department of Justice and Police FDJP of 15 August 2018