Support from Swiss voters for a proposal to reintroduce immigration quotas may have far-reaching consequences for bilateral relations with the European Union, which considers free movement of people a fundamental right.
Experts predict rising tensions along with countermeasures with unforeseen consequences if the rightwing Swiss People’s Party’s initiative “against mass immigration” passes at a nationwide vote on February 9.
“I imagine there would be a great deal of legal uncertainty and Switzerland would find itself under constant pressure,” said Thomas Cottier, director of the Institute of European and Economic Law at the University of Bern, analysing a possible “yes-vote”.
“This is because the EU would then have the option of terminating the free movement of people agreement and along with that all other bilateral accords that were negotiated with Switzerland in the first package of accords between the two parties [in 1999].”
These Swiss-EU accords come with a so-called “guillotine clause” to ensure they are put into effect together. If one of the agreements is not extended or is cancelled, either party has the right to terminate the others.
“There’s plenty of leverage,” observed Dieter Freiburghaus, a political scientist and Europe expert. “A cancellation of the bilateral accords by the EU would be a last resort measure. I don’t think it would be the most pressing matter but the EU would impose sanctions, and relations between Switzerland and the EU would plummet.”
The result would be a very long time before there would be any new bilateral talks or negotiations about institutional matters between the EU and Switzerland, as planned by Swiss foreign minister Didier Burkhalter, he added.
After Swiss voted against joining the European Economic Area in 1992, the government decided to start sectorial negotiations with the EU.
Switzerland wanted to ensure non-discriminatory access to the internal EU market.
In 1993 the EU declared itself ready to negotiate with Switzerland in seven sectors: free movement of people, technical trade barriers, public procurement, agriculture, land transport, air transport and research. But it was stipulated that the agreements be negotiated in parallel and put into effect simultaneously.
The treaties were legally coupled with a so-called “guillotine clause” to ensure that the agreements come into force as a single unit. Should one of the agreements not be extended or be cancelled, the remaining agreements could also be terminated.
The Bilateral I treaties were accepted by 67.2% of Swiss voters on May 21, 2000 and came into force on June 1, 2002.
The free movement agreement that is the subject of the Swiss People’s Party’s initiative is part of the Bilateral I treaty package.
The Bilateral II treaties are made up of ten agreements, including on internal security, asylum, environment and culture, the Schengen/Dublin Accords, savings tax and pensions. They were approved by the Swiss parliament in 2004.
The official EU position on the free movement of people is clear. In an interview with the Swiss newspaper Neue Zürcher Zeitung José Manuel Barroso, president of the European Commission, stated that member states would “never accept the disentanglement of freedom of movement from the other basic freedoms. I hope Switzerland understands this”.
In other words, should Switzerland decide to no longer abide by the free movement of people agreement, and then other rights - to exchange goods, services, and capital - would also be called into question.
“Freedom of movement is at the very heart of European integration,” said Cottier. “It can be compared to the right of establishment that became part of the Swiss Constitution in 1948.” This gave Swiss the freedom to move without restriction from one canton to another, or to a different language region.
Return to contingents?
Switzerland introduced the free movement of people with EU states in stages, starting in 2008. Since then, up to 80,000 foreign workers per year – 75% from the EU – have come to Switzerland. These numbers are a thorn in the side of the People’s Party and the reason they launched their “anti-immigration” initiative.
The proposal calls for the reintroduction of immigration quotas and the renegotiation of the free movement accord with the EU. The People’s Party argues that Switzerland is in a strong position, as the EU and its economy also have an interest in good relations with the Alpine nation.
“You can never predict how a partner will behave,” said Cottier. “The EU is a complex entity, but it is also pragmatic. But I would predict that the EU doesn’t see much room for manoeuvre on this.” He therefore believes new negotiations are “not realistic”.
However, if there is a “yes-vote” in favour of the initiative, from a legal perspective Switzerland could “leave the free movement of people agreement in place and wait for a reaction from the EU,” said Collier. “It is conceivable that the EU would unilaterally terminate the bilateral agreements but due to it being a so-called mixed accord, this would require a unanimous decision on the part of all EU member states.”
The people’s initiative allows every citizen to propose a modification of the constitution. To be valid it must be signed by at least 100,000 people within a period of 18 months.
In the next stage, the proposal goes before parliament, which can accept the initiative, reject it, or make a counter-proposal. The people get to vote on it in any case.
For an initiative to succeed, it has to carry both a majority of voters and a majority of the cantons.
The view in Brussels is that while the EU countries could cancel the agreement in theory, in practice this would be highly unlikely, as the members themselves do not really agree on this issue. But the EU would not remain inactive.
“The EU would lose credibility if they did not react. But they also have to protect their own interests. Sanctions would not only punish Switzerland,” an EU source told swissinfo.ch.
If the initiative is accepted, the consequences on the Swiss side are also unclear. Various scenarios are plausible. “Put positively, the initiative is extremely open, put negatively, it is badly formulated,” said Freiburghaus.
Although the initiative calls for quotas for all possible groups of foreigners, it does not stipulate maximum numbers. In addition, the quotas must take into account Switzerland’s “general economic interests”.
According to Freiburghaus, it is very possible that in the event of a yes-vote the cabinet and parliament would interpret its implementation “very generously and so comprehensively that limitations would never come into effect”.
(Translated from German by Kathleen Peters), swissinfo.ch