The controversial dossiers in the EU negotiating mandate
Published: Friday, Dec 15th 2023, 17:10
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Disagreements on issues such as wage protection, immigration, dispute settlement and subsidies contributed to the failure of the framework agreement: the proposals for the controversial dossiers in the new negotiating mandate at a glance:
Wage protection: Switzerland wants to adopt the EU Posting of Workers Directive in principle. This concerns employees who are posted to Switzerland by an EU employer for a certain period of time. Many of the conditions that would apply to postings to Switzerland would also apply in the EU. However, Switzerland could agree a three-stage protection concept: For example, the principle of "equal pay for equal work in the same place" should continue to be implemented and trade unions and employers should continue to be able to monitor compliance with it. There should also be exceptions, such as the pre-registration period for foreign companies and the deposit requirement. These exceptions would remain in place even if EU law were to change. In addition, Switzerland would not have to adopt future amendments to EU law if these worsened the level of protection for posted workers. The issue of expense regulations would have to be discussed again in the negotiations. The aim is to maintain the current level of protection.
MIGRATION: The EU would like to supplement the Agreement on the Free Movement of Persons with the so-called EU Citizens Directive (UBRL). Switzerland has received a concession from the EU that Swiss special features will be taken into account if the UBRL is adopted: For example, the right of permanent residence for EU nationals after five years should only be open to employed persons. Switzerland should be able to terminate the residence of unemployed persons without permanent residence if they do not cooperate with the employment agency in order to find work "within a reasonable period of time". It is also planned that EU nationals will only be able to apply for a permanent residence permit after five years - just like Swiss citizens in the EU today. Wage protection is to be maintained with a registration procedure for employees on short stays and a registration requirement for self-employed persons. It should be possible to comply with the provisions of the Federal Constitution in the event of expulsion from the country.
INSTITUTIONAL ELEMENTS: This involves the dynamic adoption of legislation, the uniform interpretation of agreements, their monitoring and dispute resolution. These elements are now to be regulated individually in each internal market agreement - from the free movement of persons, land transport, air transport, agriculture and recognition of conformity assessments (MRA) to electricity and food safety. The Swiss and EU courts are to interpret and monitor the agreements independently on their own territory.
DYNAMIC ADOPTION OF LAW: When adopting new EU internal market law, the possibility of a referendum should be guaranteed. In the area of internal market agreements, Switzerland is committed to a dynamic adoption of legislation. However, this does not mean automatic adoption. Switzerland would continue to be able to decide "independently" on any adoption of legislation and pass the corresponding laws. It could also reject EU law. In addition, exceptions are to be defined that are not influenced by EU legal developments.
DISPUTE RESOLUTION: The dispute resolution should first be discussed in a joint committee of the agreement concerned. This would be followed by a joint arbitration tribunal. The European Court of Justice could be involved under certain conditions. However, it would not be allowed to decide. The dispute would always be decided by the arbitration tribunal. If, in the opinion of the other party, one party does not comply with a decision of the arbitration tribunal, it can "take compensatory measures". These must be proportionate. Suspension of an agreement is not "explicitly" mentioned as a possible compensatory measure.
STATE AID: This involves state subsidies or other financial benefits for companies, structurally weak regions or environmentally friendly technologies. In Switzerland, state aid is only monitored in the aviation sector, whereas in the EU, state aid above a certain threshold must be approved by the EU Commission. Switzerland is now to monitor its state aid in three internal market agreements: The Electricity Agreement, the Air Transport Agreement and the Land Transport Agreement. This means that the federal government, cantons and municipalities would have to report new state aid to a Swiss monitoring authority if it exceeds a threshold value. However, public services could be maintained. There are also numerous exemptions.
AGRICULTURAL TRANSPORT: Switzerland already has an overland transport agreement with the EU. This agreement secures important exemptions for Switzerland, such as the ban on trucks driving on Sundays and at night and the performance-related heavy vehicle charge (HVC). During the exploratory talks, the EU promised that these and other points would be excluded from the dynamic adoption of legislation. These include the limitation to 40-tonne trucks, the ban on the transportation of passengers and goods with origin and destination in Switzerland (cabotage) and the safeguarding of the Alpine Initiative, i.e. no expansion of road capacity through the Alps. On the other hand, Switzerland should open up international rail passenger transport. This would mean that foreign rail companies would be able to offer their own rail connections to Switzerland in future. However, they would have to comply with Swiss wage and working conditions.
ELECTRICITY: Switzerland and the EU have agreed to "resume negotiations on the electricity agreement". However, this should remain limited to electricity trading. Households and small companies would not have to purchase electricity on the free market and could continue to count on a basic supply. From Switzerland's perspective, an electricity agreement with the EU would regulate access to the European electricity market, reduce risks such as unplanned electricity flows and ensure greater security of supply. This would allow Swiss players to participate in the European internal electricity market on an equal footing in future.
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