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Switzerland ‘heading for a breach of contract with EU’

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Swiss immigration quotas passed by voters in February could violate EU law Keystone

Switzerland will “clearly” violate its contract with the European Union if it implements voter-backed immigration quotas as literally as possible, says a European law expert.

Christa Tobler, professor of European Law at the European Institute of the University of Basel, says that the anti-immigration initiative passed by Swiss voters in February goes against EU law.

In July, the EU made ​​it clear to Switzerland in an official letter that it would not grant Switzerland any exemption regarding the free movement of people accord, which such quotas would require.

Tobler tells about the dilemma facing the Swiss government and also explains why the EU is much more important for the Swiss economy than vice versa. Former parliamentarian Christoph Blocher [and mastermind of the so-called mass immigration initiative] has claimed in a newspaper interview that the EU is contractually obligated to negotiate an amendment to the free movement of people agreement. Is that so?

Christa Tobler: No, no way. The agreement says that each party can make a proposal for amendments. But there is of course nothing which says that the other side has to support it or even say yes.

On one occasion in the past, Switzerland didn’t support a request from the EU. That was with the very same agreement.   

The claim that you’re forced to negotiate is, legally speaking, nonsense. It would be pointless and a waste of time to negotiate if the other side knows that it cannot support this issue. Christoph Blocher is himself a lawyer. Shouldn’t he know that no party to a contract can be forced to negotiate?

C.T.: That really surprises me. Anyone who reads the relevant articles of the agreement cannot come up with this idea. To some extent, it is probably wishful thinking. I can imagine that it could have something to do with political objectives. By this means, certain messages are spread which have no legal basis. So negotiating with the EU on an amendment to the free movement of people accord as required by the so-called mass immigration initiative is definitely off the table…

C.T.: Yes, and we have known that for months. … The EU said it from the beginning, and now has been made official. So the Swiss government is deeper than ever in a dilemma as to how to implement the initiative without violating this agreement. The justice ministry plans to draw up a draft law this year. What could this law look like? 

C.T.: The cabinet has indeed outlined certain guidelines: For filling vacancies, it wants to introduce foreigner quotas for stays of more than four months as well as priority for Swiss nationals, and that will be retained in the proposed legislation. However, this contradicts the free movement of people accord. However you twist and turn it? 

C.T.: … it remains a contradiction. Any provision which includes a national priority and/or quotas – no matter how high or low, no matter how fixed or flexible the maximum numbers – is contrary to the accord and is therefore not acceptable to the EU.  Will it terminate the agreement with Switzerland? 

C.T.: The agreement states that either party may terminate at any time. But termination is a political not a legal  decision. Whether the EU will make this decision, we do not know at the moment. How likely do you think it is? 

C.T.: I consider it rather unlikely, not least because the termination procedure is relatively complex. A decision to terminate would require the consent of every member state in the council and a majority of the European Parliament. So I don’t think we’re going to have a termination tomorrow. Does Switzerland have to terminate the agreement if it passes a law which breaches the deal? 

C.T.: Switzerland now plans to pass a law that quite clearly violates this agreement. If it does not want to honour the agreement, it would be logical to renounce it. But there is nothing in the agreement which says that you must cancel it, if it is not respected.

The practice in other fields of international law shows that many countries have signed something that they cannot adhere to and yet would not dream of terminating. So it is possible that both sides could live with a violation of contract?

C.T.: We are clearly headed for a breach of contract and then the question arises what to do about it. And what is your response to that? 

C.T.: Again, this is less a legal than a political issue. I can imagine that the EU says, ‘Now this country cannot even respect the most basic principles of one of our most important agreements. That must have consequences in other areas’. For example?

C.T.: The most obvious consequence is that the EU will not continue cooperation in the field of research. With the Horizon 2020 project, the EU and Switzerland have in the meanwhile found a solution . . .

C.T.: . . . a solution in which Switzerland is not participating as a full member as it was before and which only remains valid as long as the free movement of people is still maintained. Back to the option ‘defaulting status’. Couldn’t Switzerland live with that?

C.T.: At first glance, an attractive temptation. But I think you underestimate the consequences of such a state.

We now face a time of great uncertainty. Companies do not know what rules will apply, and that is not without economic consequences. But Christoph Blocher, who is himself a successful business figure, says that the EU would suffer the greater damage if it obstructs economic relations with Switzerland. His argument is that in 2013 Switzerland imported goods worth CHF170 billion [$187 billion] from the EU, while it only exported goods worth CHF96 billion.

C.T.: This argument completely neglects the significance of this CHF170 billion for the EU compared with the importance of the CHF96 billion for Switzerland. Expressed as a percentage, Switzerland’s economic dependence on the EU is far higher than that of the EU on Switzerland. Everything else is a meaningless misrepresentation.

On February 9, 2014, the Swiss electorate adopted the so-called mass immigration initiative, with 50.3% voting in favour. The initiative seeks to curb migration by introducing foreigner quotas and giving priority to Swiss nationals when it comes to filling vacancies. Because it violates the free movement of people accord, the Swiss government invited the EU to renegotiate the treaty. In July, the EU rejected the request. 

Various researchers at Swiss universities, among them European law expert Professor Matthias Oesch of the University of Zurich, are convinced that Switzerland can only extricate itself from the dilemma if the controversial Article 121a of the Constitution (mass immigration) is voted on again, provided a renegotiation of the free movement agreement does not succeed and the consequent implementation of Article 121a leads to the termination of the free movement deal, and thus of the whole package of Bilaterals I.

Various government ministers have implied that the people will have to decide within two and a half years over the continuation or end of the bilateral approach in its present form. “In the bill, it would probably specifically speak about retaining Article 121a and terminating the free movement agreement, or striking this Article off or amending it in such a way  that the treaties with the EU can be complied with,” says Matthias Oesch. As a third solution, the researchers could also imagine a new “European Article” that would fundamentally govern the relationship with the EU. 

They justify a new vote on the article by saying that the people should have the final word on the retention or termination of the bilateral approach. The vote on February 9 did not lay it out exactly like this, they say.  

A conference on this topic is taking place in October at the University of Zurich.

Translated from German by Vincent Landon

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