The current version of the framework agreement clearly has more disadvantages than advantages for Switzerland. It is not a majority in the assessment of the political actors concerned. The Federal Council therefore wishes to “clarify” questions relating to the protection of wages, the Union’s citizens’ directive and State aid to the EU. These aspects are important.
For the overall assessment of the framework agreement, however, it is much more decisive that the future EU law relevant to the agreement also applies to Switzerland. The technical term for this: “Dynamic legal adoption”. This mechanism applies not only to the updating of existing market access agreements (free movement of people, technical barriers to trade, agriculture, air transport and land transport), but also to all new agreements.
Thus, even if the new chief negotiator returns with concessions on the aspects mentioned, the framework agreement will not be able to convince the population.
Because so far, the internal political debate on the real “elephant in space” has hardly been conducted:
According to the draft framework agreement, Switzerland undertakes to integrate EU legal developments into the five market access agreements and into any future agreements. In the event of a dispute, the ECJ decides in the last resort. It could therefore judge important political decisions of Parliament or of the people, provided that they only marginally affect EU law or the treaty law that derives from it.
Given its tendency to constitutionalize European law on an ongoing basis, the ECJ will probably make extensive use of it – with far-reaching consequences for our direct democratic system. The framework agreement is therefore not a further development of the bilateral path. This is a new path that our country would take in relation to the EU.
And it is irreversible: the comprehensive “guillotine clause” provided for in the agreement means that there is in fact no way out of the framework agreement for Switzerland – unless we join the EU.
This observation clearly shows that the real problem with the framework agreement is the loss of sovereignty. This would change the proven Swiss processes in all important policy areas. Whether in labor, commercial or immigration law: important decisions would ultimately be taken in Brussels or, in the event of a dispute, by EU judges.
They would provide the framework within which local institutions could engage in politics. The elected authorities in Switzerland – and those who can be dismissed – would in fact become “enforcement agents” who would be obliged to convert European law into domestic law.
Switzerland can decide on each adjustment individually – the right of referendum is preserved. It would therefore remain free in principle not to adopt new European legislation, but it would then have to face “proportionate compensatory measures” from the EU.
The fact is, however, that Switzerland would hardly have the courage and, in terms of good relations with the EU, it would not be advisable to take this route often either. This would in effect make the EU our legislator in important areas and the European Court of Justice our constitutional court, which also approves or collects the laws of our country.
The price is clearly too high
The “total price” we would have to pay for updating existing market access agreements and for new ones as a whole is clearly too high from the point of view of a sovereign state in which voters are accustomed to. to have the last word. In this context, the Federal Council must be honest with our most important foreign policy partner and end the negotiations with this clear reason.
It is a matter of honesty. The more we leave the EU in the dark about domestic policy’s lack of chances to pass the law and resolve disputes with the ECJ, the greater the damage to foreign policy. Interrupting the negotiations would harm the credibility of the Bundesrat less than if our negotiating delegation continued to claim that this agreement could be executed correctly and in one way or another between the citizens and the cantons.
Switzerland has concluded a free trade agreement with the EU which gives us unhindered market access. Existing bilateral agreements can also be further developed in this way without the risk of erosion of bilateral relations.
Breaking off negotiations simply means admitting that new trade agreements and their benefits must not come at the expense of co-determination rights and our democratic institutions. In the future, we should consider the issue of sovereignty from the start of the negotiations.
With which we could approach the EU
We could offer the EU a renewal and extension of the free trade agreement. As between Britain and the EU, neither a unilateral passage of the law nor the opposing court as mediator is necessary. All it takes is a mutual will to develop good relationships from which people here and elsewhere benefit.