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The EU expects the Bundesrat to quickly give a yes or no to the draft framework agreement. A yes would require corrections to the free movement of people. At the same time, the vice president of the EU, Dombrovskis, remembers the first episode of a no.
If the Swiss Federal Council this Friday about the He faces a dilemma similar to the withdrawal agreement of British Prime Minister Theresa May with the EU. A draft treaty that has not yet been published, but which is fundamentally known, is on the table and there is a lot of internal opposition, while the EU rejects any recast. As in the Brexit negotiations, EU officials said the negotiations were over and the Federal Council expects a yes or no to the project.
Four days is enough?
The framework agreement aims to ensure a more uniform and efficient application of existing and future contracts for Switzerland's participation in parts of the EU's internal market. For the EU, the treaty is a prerequisite for the consolidation and development of the bilateral path.
Measured by access to the economically central market, the outstanding issues are of secondary importance – but politically charged. After the recourse to an arbitral tribunal to defuse the dispute over "foreign judges", two critics are at the center of criticism in Switzerland, both concerning the free movement of persons: the measures of accompaniment (Flam) of the Switzerland and the EU directive on citizenship.
Switzerland has presented FlaM 2004 as an "extension" of the Free Movement of Persons Agreement (FZA), which determines the free movement of people and a limited freedom of services between Switzerland and the EU. . FlaM aims to ensure that wages and working conditions in Switzerland are also respected by EU companies which, by using this freedom to provide services, send employees to Switzerland for a limited period of time. in order to carry out a contract (during construction, for example).
The same objective is pursued internally by the EU in its 1996 Posting of Workers Directive, which has been adopted but not yet implemented, and in the 2014 Enforcement Directive, which is aimed at to improve the enforcement of the Posting of Workers Act. The differences between Bern and Brussels do not concern the objective but the means to achieve it:
- Deadline for progress reports: According to the FlaM, EU employers who send workers to Switzerland must in principle provide information such as the identity, salary and place of residence of each assignee eight days in advance . Above all, the unions insist on this prerequisite, necessary for the organization of controls. The EU considers that this rule is disproportionate and discriminatory for EU companies compared to Swiss competitors. In the case of a detachment within the EU, the application directive also provides for notification, but only "at the latest at the start of the service". However, in the event of a problem, the Directive allows for "additional" measures, provided that they are justified and proportionate.
- bail: From the EU's point of view, deposits requested by foreign suppliers in Switzerland are also disproportionate. They must ensure that all buses can be driven in case of FlaM infringement. EU legislation does not provide for deposits.
- The offer of compromise: The EU regards these points as a violation of the FZA, which makes explicit reference to the (former) EU directive on the posting of workers. It has long called for an adaptation of Swiss law to European law, which is now evolving, as the framework agreement now generally provides for all market access agreements. At the same time, however, the EU has decided to take into account the special situation of Switzerland. Switzerland is one of the leading destination countries for detachments in Europe (see chart), but detachments are limited to 90 days a year and are therefore on average shorter than in the EU. The draft agreement therefore explicitly stipulates that Switzerland may impose four-day security and notice periods in sectors or regions where the risk of abuse is objectively higher. However, he should regularly review these risks. In addition, the proportionality of their proceedings before the proposed arbitral tribunal could be challenged.
Switzerland must now ask itself whether it can maintain the previous level of wage protection on this basis, or whether it is really unable to organize controls on construction sites within four days instead of from eight to the digital age.
The saga of European citizenship ends?
The European Union's Citizenship Directive (UBRL) of 2004 is also sensitive in domestic matters: it contains rules on the right of EU citizens and their families to stay in the EU. from other Member States. The EU has also lobbied for a very long time, but to no avail so far, to recapture many of these provisions, as most of the time it was to further develop the right of free movement of persons which is relevant. for FZA.
- What would change with the UBRL? Among the recent discrepancies identified by the State Secretariat for Migration between the FZA and the UBRL, three issues are particularly sensitive. The first is access to social assistance, the last social safety net. Anyone who loses his job as a citizen of the Union during the first year of his stay in the host country can, under UBRL, benefit from assistance benefits. social welfare state for six months. However, the FZA does not plan to do so until the first twelve months of residency. From a numerical point of view, the difference would probably be minimal because, according to the FZA observatory, newcomers rarely find themselves unemployed in the first year. In addition, according to the UBRL, inactive people (retirees, students) could benefit from social assistance for three months or more, which excludes FZA. Second, after a five-year stay in the host country, the UBRL provides for a right of permanent residence. On the other hand, Switzerland grants a settlement permit with good integration to the citizens of the 15 old EU Member States after five years, the others only after ten years. In addition, the permission may be withdrawn in case of durable and substantial social assistance. Third, the UBRL regulates the conditions of expulsion more restrictively than the FZA.
- The solution: Berne has not achieved the objective of explicitly excluding the UBRL from the envisaged framework agreement. Instead, the directive is simply not mentioned in the project, according to both sides. For the EU, however, the demand for recovery of important parts for the ZF has not disappeared. Because it is a further development of the right to free movement, argue the EU representatives. And the Framework Agreement provides for the dynamic adoption of new EU legislation in market access agreements such as FZA. The charm of this "solution" however lies in the fact that Switzerland could take its time in the process of adaptation and claim the latitude of its content. However, if it does not do too much or not long enough, under the new regime, the EU could also appeal to the arbitral tribunal in this case.
The price of the framework agreement is therefore known. It must be weighed against its benefits, the preservation of the bilateral path and the costs of not using the project. The latter should start, but not end, by the stock market equivalence, end of 2017, for a limited period of one year, to the recognition of the equivalence of the Swiss exchange regulations with that of the EU. This was recalled Wednesday by a response from Valdis Dombrovskis, Vice President of the European Commission, at the request of MEP Markus Ferber (CSU). At present, negotiations with Switzerland (on the framework agreement) are not advanced enough to extend the decision of equivalence of Swiss stock exchanges beyond December, notes Drbrovskis sharply.
You can contact the editor René Höltschi twitter to follow.
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