Terrain for EU framework agreement is levelled out

A great game

Dr. iur. Marianne Wüthrich

On 7 December, the Federal Council published the draft of the institutional framework agreement (InstA) with Brussels - after around four years of negotiations in splendid isolation. It is hardly a coincidence that this event took place only a few days after the sovereign’s rejection of the self-determination initiative. For the major effort to sink this initiative was, so to speak, the dress rehearsal for the staging of the Framework Agreement as Switzerland’s admittedly large but allegedly inevitable step towards the EU. So the daily press wrote on the day before the referendum that «a clear no to the self-determination initiative» might be «interpreted as a commitment to Europe» («St. Galler Tagblatt» of 24 November). To put it plainly: if the majority of the electorate could be persuaded to renounce its position as the supreme power in the Swiss state system, then a steady flow of misleading and distorted facts might push them towards a framework agreement with  Brussels that would further piecemeal dismantle their direct democracy and independence and the sovereignty of their own country, until hardly anything would remain ...
The question of whether we should surrender a large part of our political rights plus Switzerland’s sovereignty to Brussels is becoming a question of vital importance for the very existence of the Swiss model. I will first explain here how things could have come to such a pass, and how the Classe politique is trying to push the framework agreement through without consulting the people. We need more time to grasp the full content of the treaties; otherwise our heads will soon be buzzing. Today, the first issue is the central basic principles of the treaty: Adoption of EU law and dispute settlement, and the question of which bilateral treaties should be subject to the framework agreement.
In the spring, the Federal Council intends to address the public again. Until then, we, the citizens, should not only inform ourselves about the content and objectives of the agreement, but also deal with the urgently needed task: What needs to be done?

The Swiss economy has been contractually linked to the EC/EU since 1972, with a very effective Free Trade Agreement for Industrial Goods (FTA), that is still in force today, and around 100 other agreements based on it. However, a treaty of this kind – between equal partners – was soon no longer sufficient for the increasingly centralist and authoritarian EU bureaucracy. The great game of Switzerland’s ever closer political and legal integration into the Brussels power complex began in 1991 with the Federal Council’s application to join the EU. The following year saw a referendum on accession to the European Economic Area (EEA), which Federal Councillor Adolf Ogi described as a “training camp for EU accession”. But as the Swiss people said no to the EEA on 6 December 1992, Federal Bern subsequently took the “bilateral path”. In the year 2000, the Bilateral Agreements I were accepted by the people. The Bilateral Agreements II followed in 2004, including Schengen-Dublin, which the people approved in a referendum on 5 June 2005. At the same time, the Federal Council maintained accession as a strategic goal – against the will of the people - until 2005. However, the formal withdrawal of the membership application did not take place until 2016, being then enforced by parliament.

Brussels calls for ongoing adaptation of bilateral treaties to EU law

Only a few years later Brussels began to push and shove again: A “blanket” for the many treaties was needed, they said, a uniform (EU)-legal superstructure. The EU turbos in Bundesbern willingly jumped on this bandwagon. After the debacle with the EEA, a new name was chosen for the structure, which is in existence today: “Institutional Framework Agreement (InstA)”. Its aim: to “consolidate the bilateral path and access to the EU internal market, to make this path fit for the future and facilitate its further development”. This is the harmless-sounding little cloak for the Federal Council’s new blueprint.1 In fact, with the InstA Switzerland would be so rigorously integrated into the development of EU law that its sovereignty and our people’s rights would shrink to a miserable little rest.
Much of the preparatory work has been done: Using a lot of propaganda and manipulation, the EU turbos in politics, administration and economy have recently succeeded,

  • in 2017, to get a comprehensive energy strategy approved in the national referendum which - as we learned only afterwards from Federal Councillor Leuthard - cannot be implemented without an electricity agreement with the EU,
  • in 2017/18, to quash three popular initiatives on food security and sovereignty and on sustainable and healthy production, which would have made the development of borderless trade more difficult,
  • under constant paternalism by the EU Commission, to effectively not implement the constitutional article on the independent control of immigration adopted by the people on 9 February 2014,
  • to weave such a carpet of lies around the self-determination initiative that on 25 November two thirds of the voters disenfranchised and disempowered the sovereign, i.e. themselves.

“Internal consultation” instead of extensive discussion in the population

Right at the beginning of the media conference on 7 December, the Federal Council demonstrated that it wanted to avoid a broad public discussion for as long as possible – up to a stage at which there will allegedly be no turning back? For a start, it does not subject the draft treaty to the consultation procedure customary in Switzerland, in which all cantons, political parties and associations, interested citizens’ groups and individual citizens can participate, with all the documents being available to everyone in each case. Instead, on 7 December, the Federal Council opened “a consultation procedure - not for the public, but for “circles concerned”, [referring only to the parties, cantons and the employers’ associations as well as the unions]. According to the Federal Council (SRF News of 7 December), there are still differences with Brussels on a number of important points, such as the accompanying measures on wage protection and the Citizens of the Union Directive.
It should be noted here: In direct democracy, all voters belong to the “circles concerned”, because one day they will vote on the adoption or rejection of the framework agreement. The current “internal consultation”, however, is not intended for us to make a combined effort to participate more actively and decisively in the negotiations with Brussels, but rather to straighten out those involved, so as to conform to the line called for by Brussels. In the spring, the Federal Council will then inform us about the outcome of the consultation. (SRF News of 7 December). It is to be hoped that the trade unions will stick to their wage protection demands. For since the conclusion of the Agreement on the Free Movement of Persons (Bilateral Agreements I), Switzerland has had to cope with an exceptionally high level of immigration into its labour market and its social insurance compared to other countries, because of its high wages and the low unemployment rate. However it is also important that the participants in the consultation do not allow themselves to be distracted by a few individual points - however weighty they may be. It is essential to look at the agreement as a whole, and to acquaint the people in our neighbouring and the other EU countries closer with our political system.
It is downright unconstitutional that the draft treaty text is, on the day of its “disclosure”, only available in French. For an indefinite period, Italian- and German-speaking Swiss will have to content themselves with a paper issued by the FDFA that provides a summary of the treaty contents, but is also peppered with attempts at influencing the reader, without distinguishing between the one-sided comments and the contents of the treaty.1 This is an untenable procedure!

Core of the Agreement: Adoption of EU Law and EU Jurisdiction

In its “Information” paper, the Federal Council praises the outcome of the negotiations: “Switzerland achieved its objectives with respect to the core of the agreement, namely the institutional mechanisms addressing developments in EU law, monitoring, legal interpretation and settlement of disputes. For example, under the InstA Switzerland makes decisions in respect of legal developments in accordance with its constitutional approval procedures, retaining the option of holding referendums (no automatic adoption of EU law). Swiss authorities monitor compliance with the agreements in Switzerland. Furthermore, disputes are to be settled by an arbitration panel comprised of arbitrators appointed in equal numbers by Switzerland and the EU. The jurisdiction of the Court of Justice of the European Union (CJEU) is limited to interpreting EU law adopted by Switzerland.”2
It is not intended here to present in detail the entire flow charts on “dynamic legal developments” and on the “dispute settlement procedure” annexed by the Federal Council to its abridged version.3 If necessary, this can be done later. Here it is merely needful to clarify what follows: It is pure cover-up tactics to give the impression that Switzerland is holding the reins throughout the entire process as if there were no cuts whatsoever in the sovereignty of the country or in the political rights of its citizens.

Legal adoption: preserving one’s own autonomy of decicion?

“Under the draft InstA, Switzerland and the EU undertake to incorporate relevant developments in EU law into the agreements.”4
The EU Weapons Directive as a so-called “continuation of Schengen law» is an example of how the framework agreement would work. During the vote on Schengen/Dublin, no voter came up with the idea that twelve years later, based on Schengen, the EU could interfere in the handling of weapons ownership in the individual EU states and also in Switzerland. Today we should be smarter: Nobody can foresee what legal changes we would have to adopt from the EU in five, twelve or twenty years’ time with a framework agreement, and how serious these changes might be!
Various groups have taken up the referendum against the adoption of the EU Weapons Directive 2017/853; the deadline for the collection of signatures is 17 January 2019. On 19 May 2019, the Swiss electorate will be able to vote on the proposal.
What is already clear: The Swiss EU lobby will bring its concentrated power to bear in the voting battle, EU headquarters will roll out its artillery if the voters decide not to adopt the amended Weapons Directive, and Federal Council and Parliament will try to get things back on track with Brussels. By now we have “gained” sufficient experience with this.  With a framework agreement we would have to fight a ceaseless and much fiercer battle for our direct-democratic rights, and we would clearly be sitting at a shorter end of the lever than we are today.
Whether we can preserve our strong people’s rights also depends on us, the citizens: Neither EU bodies nor politicians and media in our neighbouring states can be expected to understand or even anticipate the importance of being free citizens in a direct-democratic state. How can they, when even in our own government and parliament there are people who speak out in favour of a framework agreement with the EU that will certainly make us more dependent and less free ...

Impartial arbitration?

In the history of Switzerland, arbitrators have always fulfilled the extremely important function of mediating between divided and disunited cantons – and the disputes were sometimes fierce, often even carried out by force of arms.
The fact that the Confederates were able to maintain cohesion for centuries, even through the difficult period of the religious division with the Wars of Kappel, and finally united to form the Federal State in 1848, is largely due to a number of personalities who succeeded in mediating. The best known of these was Niklaus von Flüe. Even today, referees are usually generally respected, for example concerning differences between employers and trade unions and, of course, on the football field.
An arbitral tribunal to be set up for “disputes” between Switzerland and the EU if the responsible Joint Committee were not to find a solution would be of a completely different nature. It is true that equal representation is envisaged, i.e. composed of arbitrators appointed in equal numbers by Switzerland and the EU. But the Federal Council will hardly choose a Martin Schubarth or a Hansjörg Seiler (two personalities of different political provenance who, as Swiss federal judges, have retained their independent thinking), but rather a Helen Keller. She is the (only) Swiss judge at the European Court of Human Rights in Strasbourg, but whether she represents Switzerland’s interests there is at least questionable.
For example, she has for years been campaigning in the media against the self-determination initiative and warned against popular initiatives that “have a problem with the fundamental values contained in our constitution”,5 or she untruthfully claimed that the initiators wanted to terminate the ECHR and would thus send a devastating signal to other states.6 We would probably have to face Swiss arbitrators of this kind.

Factual subordination of the arbitral tribunal to the CJEU

The highlight of the deception in the Federal Council paper is the presentation of the role to be played by the European Court of Justice (CJEU): It says that the Mixed Committees and the arbitral tribunal called upon by Switzerland or the EU to settle disputes would be able to resolve these independently. The ECJ would only have to be consulted by the arbitral tribunal if “resolving the dispute requires clarification of a question concerning the interpretation or application of EU law.”7.
Let me pose a small question for your consideration: When it comes to the incorporation of EU legal developments into the bilateral agreements between Switzerland and the EU, where is it supposed to be about something other than the “interpretation or application of EU law”? In fact, the CJEU) would always be involved: the arbitral tribunal would have to decide on the question in dispute “on the basis of the interpretation of the CJEU)” and “the parties are bound by the arbitral award [or the interpretation of the CJEU)]”. This supreme court of the EU, whose decisions cannot be appealed against, is a veritable foreign judge. So what is the difference between an arbitration decision “based on the interpretation of the CJEU)” and a direct judgment of the CJEU)?
This strongly reminds us of the so-called “EFTA Court”, which was set up by the EU to ensure the uniform application of EU law by the three EEA states Norway, Iceland and Liechtenstein. The “Efta Court” was described by its former President, Carl Baudenbacher, as the “little brother of the ECJ” because it makes all its decisions in accordance with ECJ case law.
By the way, it is all over town that even the individual EU member states practically never win their case against the EU Commission before the ECJ – in a “dispute” with the EU one cannot therefore speak of two equal parties.
If Switzerland did not recognise the ruling (for example because it was rejected by the people in a referendum), the other party could take so-called “compensatory measures” (sanctions). We already have some experience with the EU’s sanctions, which are contrary to treaties and to international law.
Which bilateral agreements would be subject to the Framework Agreement?
According to Article 2 of the InstA, these would be the five so-called “market access agreements” of Bilateral Agreements I: Free Movement of Persons, Overland Transport, Air Transport, Technical Barriers to Trade/MRA and Agriculture as well as future agreements on market access (e.g. the Electricity Agreement currently under negotiation).8 For the moment, I shall make only two comments on this: Firstly, according to the will of the people (Art. 121a of the Federal Constitution) the free movement of persons should actually be controlled independently. As is well known, this article has not been implemented. Instead, the EU wants to severely restrict the relatively well-functioning accompanying measures (frequent checks of employment contracts and conditions, prevention of the activities of fictitious service providers by means of an eight-day registration period). Whether the Union Citizens Directive is also to be imposed on Switzerland remains to be seen. I shall come to this later. Secondly, it remains a mystery in what way the land transport agreement is supposed to be a market access agreement for Switzerland: In reality, it is a transit agreement for trucks from the EU and brings Switzerland nothing but avalanches of trucks and masses of bad air. What can the EU possibly want to change here? (Night and Sunday driving bans and a maximum of 40-tons for vehicles are recognised in the framework agreement). This is just food for thought.
According to the Federal Council, the Agreement on Public Procurement and the 1972 Free Trade Agreement (FTA) are not covered by the institutional agreement. But the EU wants to make them subject to the InstA, too. This would be no bagatelle. According to a brand-new overview by the FDFA, the FTA has been creating a free trade area between Switzerland and the EU for industrial goods for decades and is “central to the Swiss economy”.9 Numerous other treaties are based on the FTA. Bern and Brussels have apparently agreed to raise this ponderous mass of topics only after having finalised the InstA:
Using of a kind of piecemeal strategy, they now want to make a “political declaration of intent” according to which they would then start negotiations on the “modernisation” of these two important agreements. These must therefore already be considered today.

A broad and honest discussion is necessary!

Even before we have included all the details of the planned institutional framework agreement, it is clear that this construct has great similarities with an accession to the EEA. Despite all the attempts at glossing things over and despite the velvety wording, we would do well to read the Treaty – which should be [?] available in all the national languages - carefully and to discuss it widely.
We, the citizens, are called upon to consider very carefully whether we want to engage in closer integration into the centralist European Union. The EU, for its part, would do well to abandon its centralisation plans and instead merge into a “Europe of the Fatherlands” - in the true sense of growing together, not on the basis of coercion and pressure.        •

1    FDFA (Federal Department of Foreign Affairs), DEA (Directorate for European Affairs) 7. Dezember 2018. “Institutional agreement between Switzerland and the EU: Key points in brief”, p.1; https://www.fdfa.admin.ch/dam/dea/en/documents/abkommen/InstA-Wichtigste-in-Kuerze_en.pdf
2.    “Key points in brief”, p. 1
3    “Key points in brief”, p. 2
4    “Key points in brief”, Appendix I: “Dynamic adoption of EU law developments”, and Appendix II: “Example of dispute settlement procedure”
5    “Versuchen Sie mal ‘fremde Richter’ auf Englisch zu übersetzen”. „Just try to translate ‚fremde Richter‘ into English“. Interview with Helen Keller. Tages-Anzeiger of 29 June 2015. Interview: Felix Schindler
6    “SVP-Initiative müsste ungültig sein” (“SVP-Initiative should be invalid”). Blick of 7 October 2018. Interview: Reza Rafi
7    “Key points in brief”, p. 2
8    “Key points in brief”, p. 2
9    Eidgenössisches Departement für auswärtige Angelegenheiten, Direktion für europäische Angelegenheiten DEA. Die wichtigsten bilateralen Abkommen Schweiz–EU, November 2018 www.eda.admin.ch/dam/dea/de/documents/folien/Folien-Abkommen_de.pdf, (FDFA, Federal Department of Foreign Affairs, DEA, Directorate for European Affairs, “The most important bilateral agreements between Switzerland and the EU”, November 2018)