The negotiations are over. The European Union makes concessions when it comes to the free movement of people, while Bern makes concessions when it comes to money.
With the new protective clause, Switzerland could restrict immigration from the EU, but it would not be free.
Joel Hunn / NZZ
It's worked out. After nine months, Switzerland and the EU have formally declared their negotiations over. The exact texts are not yet available, but the Federal Council published fact sheets on the most important questions on Friday. An overview of the most important points:
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Protection clause on immigration: This was one of the last big questions: Will Switzerland have the opportunity to temporarily restrict the free movement of people if immigration takes on problematic dimensions? The short answer: yes. The longer answer: Switzerland could actually restrict immigration without provoking a political scandal, but it wouldn't be free. There are two variants:
- With protection clause: The agreement on freedom of movement already states that Switzerland can introduce remedial measures in the event of “serious economic or social problems”. But today this is only possible if the EU gives its blessing. The procedure is now being expanded: If the EU says no, Switzerland can take the case to an arbitration tribunal. This decides whether the requirements are met. If the answer is yes, Switzerland can impose restrictions as it sees fit. Immigration taxes, stricter priority for nationals or quotas would be conceivable. But: The EU would be entitled to restrict freedom of movement to the same extent as Switzerland. This would primarily affect Swiss people who want to move to an EU country. Switzerland will regulate the details unilaterally: the Federal Council wants to anchor the criteria for invoking the protective clause and the specific protective measures in the Aliens Act.
- Without protection clause: If Switzerland loses in the arbitration court, it can still restrict immigration. However, the dispute resolution, which is part of the new contracts, then takes effect. In this case, the EU's countermeasures do not have to be limited to the free movement of people, which becomes more uncomfortable for Switzerland. The EU could also restrict other agreements related to the EU internal market, but not cooperation such as in research or education (see below).
What will be crucial is what role the European Court of Justice (ECJ) plays in the safeguard clause. The Swiss side assumes that he has nothing to say about it because no EU law is affected. But apparently the EU did not want to give an explicit guarantee. Therefore, in the first application case, the arbitration court must decide whether to involve the ECJ.
Immigration in general: It is now clear which parts of the Union Citizens' Directive Switzerland must adopt. What is certain is that it can maintain its rules for deporting criminals and that direct immigration into social welfare will not be possible. And: In contrast to the EU, freedom of movement in Switzerland still only applies to people who work here or can provide for themselves, as well as their families. On the other hand, Switzerland must now grant permanent residence to all EU citizens after five years of gainful employment. This actually already applies to citizens of the “old” EU states, but it is new for the others. The five-year period is extended if someone lives on social assistance for more than six months. Unemployed people without permanent residence must leave the country if they do not cooperate with the employment agency.
Dispute resolution/assumption of rights: Switzerland is committed to dynamically adopting EU law in the five existing and new internal market agreements such as the one on electricity. The EU should not be allowed to unilaterally change the scope of application. Bern decides on every legal transfer without automatism; A referendum also remains possible. In addition, Switzerland is allowed to have a say in the drafting of new EU law, but not to have a say in the decisions.
If the two parties disagree politically about whether Switzerland needs to adopt a legal change, one side can bring in an arbitration tribunal. The same mechanism applies if one side believes that the other is not implementing an agreement correctly. The arbitral tribunal must obtain an opinion from the European Court of Justice (ECJ) if it is “relevant and necessary” to interpret EU law in a dispute.
If one party does not adhere to the court decision, the other side can take compensatory measures. This also applies in the event that the Swiss people reject the adoption of the law in a referendum. The measures are possible within the treaty concerned and other internal market agreements, but not in research or elsewhere. The arbitration tribunal decides independently of the ECJ whether the measures are proportionate. During the negotiations, Switzerland brought out certain restrictions. Measures may only be applied three months after their announcement. At the request of a party, the arbitral tribunal may extend this suspensive effect, for example if there is a risk of irreparable damage. Switzerland has not succeeded in limiting the measures to the agreement in question.
Cohesion contribution: Switzerland should pay 350 million francs annually from 2030. The money does not go to the EU headquarters, but to selected member states with which the federal government implements joint projects. Contributions to date have amounted to 130 million per year. Switzerland should also pay this much in the transition phase until 2029 – but only retrospectively if the package is accepted. The EU sees the contribution as the price of entry into its internal market. The EEA states already pay more than Switzerland.
Wage protection: Many problems have been solved here, but at least two remain: Companies from the EU would now only have to pay a deposit when operating in Switzerland if they have already been fined. And they could pay their employees the same expenses as in their home country – depending on the case, much less than usual here. The unions are exerting massive pressure. They demand domestic compensation in dossiers such as collective employment agreements or protection against dismissal. Employers reject this. The Federal Council wants to present proposals in the spring.
Bahn: Switzerland is opening international passenger transport to competition. In the future, foreign railways will be able to offer cross-border trains to cities like Zurich on their own initiative. However, conditions apply: the regular timetable has priority when Switzerland allocates travel options. Local wage and working conditions must be adhered to, and foreign railways can be obliged to integrate into the Swiss tariff system. During the negotiations, the EU had apparently questioned the priority of the regular timetable. Switzerland seems to have secured this. However, international passenger transport should have priority when allocating remaining travel options. Cooperations, for example between the SBB and the DB, should explicitly remain possible, as is also the case in the EU.
Strom: Switzerland will be integrated into the European internal electricity market. It participates on an equal footing in the EU platforms and other committees that are responsible for security of supply or trade. This is intended to increase grid stability and avoid unplanned electricity flows – and secure market access for Swiss suppliers. Switzerland is also opening its electricity market to private individuals and small companies, whereby they can continue to choose whether they want to switch to the free market or switch back to the regulated basic supply or remain in it.
The construction of reserve power plants (e.g. with gas) to prevent electricity shortages should also be possible in the future under certain conditions. To this end, Switzerland should be granted an exception to dynamic legal adoption. The current practice regarding water rates and the granting of concessions for hydroelectric power plants should also be maintained in order to reassure the Alpine OPEC. This means that hydropower should continue to be in public hands. Bern does not commit to adopting EU environmental law, but guarantees a level of electricity equivalent to that of the EU.
Research, health: With a new agreement, Switzerland can secure participation in EU funding programs. An association should be possible as early as next year. So far, Brussels has primarily used the research program to put pressure on Switzerland by discriminating against local universities. This should no longer work. This also applies to health protection, where Bern wants to secure cooperation with EU authorities with another new contract, which was important in the corona pandemic, for example.
Agriculture: The agricultural agreement is being expanded to address issues of food safety and trade. In terms of domestic policy, the exceptions are primarily important: agricultural policy, including subsidies, tariffs and quotas, is not affected. Important parts of agriculture are also protected from the compensatory measures within the framework of dispute settlement.
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