Statements by the opponents of the negotiations in a fact check: what the EU opponents are keeping quiet

Autonomous Switzerland: The exploratory result (“Common Understanding”) of December 15 did not bring any significant benefits to Switzerland. The result is “materially old wine in new bottles”. The institutional rules are “almost unchanged part of the package solution,” compared to the 2021 framework agreement, which the Federal Council rejected. Therefore, the current exploratory result is unacceptable, according to the group led by Hansjörg Bertschi. The SVP argues the same.

Tobler: Yes, it is true that the basic features of the institutional elements have remained unchanged. What Autonomysuisse hides is that there have been “clarifications and adjustments to specific, substantive questions”. These exceptions are significant and also important for the Federal Council. Two examples: first, the Swiss practice of wage controls by the joint committees of employers and trade unions, second, the restrictions to protect the social security system for unemployed EU citizens.

Autonomous Switzerland: Switzerland would adopt the rules on the free movement of persons and the Union Citizens Directive. A dynamic legal takeover is planned. Switzerland therefore “cedes a lot of sovereignty to the EU”. Direct democracy is in danger.

Tobler: That’s right, the dynamic adoption of laws is part of the institutional innovations, and Switzerland is committed to that. However, it only affects those parts of bilateral trade law that substantively adopt EU law. The regulatory approval is intended to ensure that Switzerland’s bilateral law remains at the level of EU law. This benefits companies and people who derive rights from bilateral law. In an emergency, Switzerland could also say no. This could lead to a dispute settlement procedure and appropriate countermeasures from the EU.

Autonomous Switzerland: The arbitral tribunal is not free to decide in the event of a dispute. It must consult the European Court of Justice (ECJ) to interpret the contract and is bound by its decision.

Tobler: It is also true that this obligation exists. This is explained by the fact that Switzerland adopts and applies EU law regarding the content of important bilateral agreements. The ECJ case law is already binding on Swiss authorities and courts, especially in the area of ​​free movement of persons, albeit to a lesser extent.

Autonomous Switzerland: The FTA must be institutionally integrated. It will lose its status as a bilateral treaty. It should be explicitly excluded from the arbitral tribunal and the assessment by the European Court of Justice.

Tobler: That’s wrong. According to the exploratory outcome (“Common Understanding”), the next round of negotiations will only concern five specific agreements where institutional rules need to be adjusted: the free movement of persons, land and air transport, agricultural products and conformity assessments. “The free trade agreement is not one of them,” says Tobler. This would require separate negotiations.

Autonomous Switzerland: The agreement does not contain an equitable termination clause. It needs to be replenished.

Tobler: This statement misses the point because – unlike in the previous round of negotiations – the institutional issues now are not about concluding a new agreement. According to the exploratory results, only the institutional rules in the five existing agreements mentioned should be adjusted.

Autonomous Switzerland: The agreement to be negotiated is not subject to the mandatory referendum on the state treaty. But this must be the case.

Tobler: Autonomysuisse makes a false assumption. According to the Federal Constitution, a mandatory referendum on the state treaty “applies exclusively to membership of collective security organizations or supranational communities.” That is not the case here. When it comes to institutional issues, it is not about accession to the EU, but about a revision of selected bilateral agreements. In practice, proposals were subject to a mandatory referendum because they seemed particularly important to Parliament, such as free trade agreements or accession to the EEA, but this was not mandatory.

According to Christa Tobler, Autonomysuisse is only right in half of the criticism, and wrong in the other half. According to Tobler, it is important to know that the Federal Council still lists many outstanding points for the upcoming negotiations. The draft negotiating directives show where the Federal Council still wants to achieve something. “This also includes several clarifications and improvements over the exploratory results.”