Institutional Framework Agreement Switzerland-EU – strategy or confusion?

by Dr iur. Marianne Wüthrich

Although not a single citizen has ever seen the content of the agreement as planned by the Federal Council, the core of the agreement has long been certain:
The automatic adoption of existing and future EU legislation and case law of the European Court of Justice.

This means that the people would no longer be Switzerland’s law-making body. Many citizens probably cannot imagine how deep the breach of our direct-democratic and federalist state structure by an institutional agreement that is legally above Swiss law would be, especially since the Federal Council has carefully avoided making the contents of the negotiations publicly accessible for years.

Basic problem: The EU system is not compatible with the Swiss state structure. Example EU Weapons Directive

We are currently seeing this with the EU Weapons Directive. Switzerland has signed the Schengen Agreement (Bilateral II) to adopt future EU law. The amendment of the EU arms law line is now a further development of EU law on Schengen, which no Swiss who voted in favour of Schengen in 2004 was expecting.
It is well known that bans and restrictions on weapons are no means against terrorism. (To end the NATO and EU wars would bring more benefits.) Nevertheless, the EU wants to impose restrictions on the possession of weapons on the Schengen member states and thus also on Switzerland. A blatant intervention in the tradition of the free Swiss, who has always defended his country with a weapon in his hand. On 13 February 2011, the people reaffirmed this view and rejected the federal popular initiative “For protection against armed violence” with 56.3% votes against.
Interestingly, in this point the Federal Council succeeded in enforcing the will of the people in Brussels and insisted that Swiss soldiers are allowed to retain their weapons even after they have finished their service. (Apparently this is possible if the Federal Council remembers which side of the table it is sitting on during the negotiations).
Recently, however, it became known that the Czech Republic felt discriminated by this exemption for Switzerland and therefore brought an action before the ECJ [“St. Galler Tagblatt” of 14 May 2018]. And now?
In any case, we can see from this example that the imposition of EU directives is incompatible with direct democracy: we Swiss are used to being able to vote on legal changes, and we want to continue to make use of this fundamental right.

More legal certainty with a framework agreement? For whom?

It is astonishing that there are Swiss who claim that a framework agreement brings “more legal certainty”. More legal certainty for whom? For us citizens in any case not – on the contrary we would have no more anything to say. But also not for the Swiss companies. Legal certainty arises only through a contract from equal to equal. One would think that by now we have enough experience with the EU: if something does not suit the masteries in Brussels, they will crack down arbitrarily and in violation of the contract.
For example:

  • expulsion from the student exchange program Erasmus+ in response to the sovereign’s yes to the mass immigration Initiative: without legal basis and without contentual context,
  • Limitation of admission to the stock exchange for EU securities trading, provisionally until the end of 2018, in response to the fact that the Federal Council did not sign the framework agreement quickly enough: also without legal basis and without contentual context.

With a framework agreement, we would not be better protected against such big-power behavior, on the contrary. After all, the purpose of the framework contract is precisely that the EU Commission and the EU Court of Justice could decide whether and how Switzerland should be burdened with EU bureaucracy. The framework agreement would certainly bring more power to Brussels – no talk of more legal certainty for us Swiss and our companies. We claim from our politicians and authorities to represent the interests of the Swiss people instead of talking and acting on behalf of the masteries in Brussels.

For which bilateral agreements should the framework agreement apply?

This is being heavily speculated in the media – but even on this essential point there is no consensus between Berne and Brussels.
Ignazio Cassis, according to the “Neue Zürcher Zeitung” of 3 May, gave the impression of being at one: The framework agreement would concern the so-called “market access agreements” of Bilateral I, namely five agreements: free movement of persons, technical barriers to trade, air and land transport and agriculture (Bilateral I cover only a limited area of agriculture). In addition, the electricity agreement planned by the Federal Council. The agricultural agreement threatened by Federal Councillor Schneider-Ammann is mentioned nowhere, in order not to scare the people, but it would also belong to it.
However, according to the “Neue Zürcher Zeitung”, Brussels also wants to include the Government Procurement Agreement (hence practically all Bilateral Agreements I) and even the 1972 Free Trade Agreement (FTA), which actually covers all trade.
What we can say today: The EU will want to include as many legal areas as possible. This also makes clear why the Federal Council does not want to disclose what should be in the framework agreement. If we citizens can read in black and white, where Brussels wants to reach everywhere, Federal Berne can write off the framework agreement.     •

Key agreements Switzerland–EU

Free trade agreement of 1972

Basis for the economic exchange Switzerland–EU, adopted by the people with 72,5 % and by the Concil of States
Bilateral agreements I (7 agreements)
adopted by the people as a “package”  on 21 May 2000 and in force since 1 June 2002
–    Free movement of persons
–    Technical barriers to trade TBT
–    Public procurement markets
–    Agriculture
–    Research
–    Civil aviation
–    Overland transport

Bilateral  agreements II (9 agreements)

Referendum only against Schengen/Dublin, adopted by the people with 54,4 % on 5 June 2005
–    Schengen/Dublin
–    Taxation of savings/AIOE
–    Fight against fraud
–    Processed agricultural products
-    Environment
–    Statistics
–    MEDIA (Creative Europe)
–    Pensions
–    Education
Informations on the individual agreements: https://www.eda.admin.ch/dea/en/home/bilaterale-abkommen/ueberblick.html/