Tasks for the Swiss Government after the vote

At this step, we are going to identify the tasks that resulted for the Swiss Federal Government from the popular vote on the initiative against mass immigration, as it called itself. These tasks arose from the text of the articles that were introduced into the Swiss Federal Constitution through the vote. The first task is the implementation of the new principles through federal legislation. According to Art. 121a of the federal constitution, the national law shall provide for autonomous control of the immigration of foreign nationals through quantitative limits, quotas, and national preference, whilst taking into account Switzerland’s general economic interest. In the Swiss legal system, it is normally the federal government — that is, the Federal Council — that makes proposals for federal laws.

Accordingly, Art. 121a(5) of the Federal Constitution gives it the task to do so in order to implement the new constitutional principles. The making of a federal law takes time. There is, however, an additional provision that is of relevance in this context. Art. 197(11)(2) of the Federal Constitution demands that: ‘If the implementing legislation for Art. 121a has not come into force within three years of its adoption by the People and the Cantons, the Federal Council shall issue temporary implementing provisions in the form of an ordinance.’ This means that, in fact, for implementation through legislation, there are just three years. And if by then no law has come into existence, the Federal Council must take action on its own.

Next, the new constitutional provisions also states certain tasks with respect to international agreements. As for new agreements, Art. 121(a)(4) of the Federal Constitution provides: ‘No international agreements may be concluded that breach this Article.’ In the Swiss legal system, it is the Federal Government that is in charge of Switzerland’s external relations. In fact, it is here that the Federal Council acted first. At the time of the vote, it had not yet signed the protocol extending the Swiss-EU Agreement on the free movement of persons to the youngest EU Member State, namely Croatia. The document was ready for signature. However, the Federal Council now decided that it could not sign it because of Art. 121a(4) of the Federal Constitution.

As you can imagine, this did not please the EU, and Croatia in particular. Croatia understandably felt discriminated against. The reaction was swift in that the EU decided in turn not to renew certain agreements with Switzerland. Switzerland and the EU had concluded a number of agreements providing for the participation in certain EU programmes, in particular in the fields of education and research. Since these EU programmes have a limited lifetime, each time that the EU sets up a new programme, a new agreement has to be concluded in order to make Swiss participation possible.

As it happened, notably two such agreements were due when the vote on mass immigration came up, namely the agreement on research relating to the EU’s Horizon 2020 programme and the agreement on education relating to the EU’s Erasmus Plus programme. They were not concluded. The result for Switzerland was unpleasant. First, students suffered because they could no longer participate in the same manner in the EU’s study abroad programme. The Swiss Federal Government took unilateral measures in order to mitigate these consequences. Second, research cooperation with the EU became much more difficult. Here, the Federal Council was eventually able to conclude a transitional agreement with the EU that somewhat mitigated temporarily the consequences of the lack of the agreement.

The Swiss Federal Government also concluded a transitional agreement with Croatia. Eventually, it even felt that it could sign the protocol after all. The signing happened in March 2016, clearly with the hope that this would pave the way for a return of Switzerland into the former full cooperation with the EU in the field of research. However, the EU has made it clear that the long-term return is dependent on respect of the obligations under the agreement on the free movement of persons. In addition, the EU pointed out that it sees the free movement of persons as a precondition for Switzerland’s Schengen association, which would therefore also be in danger should the free movement of persons be given up.

Since the Schengen and the Dublin Agreements can only apply together, this also applies a danger for the latter. Finally, Art. 197(11)(1) of the Federal Constitution mentions already-existing international agreements. International agreements that contradict Art. 121a must be renegotiated and amended within three years of its adoption by the People and the Cantons. The new principles under Art. 121a of the Federal Constitution are contrary to the idea of free movement as enshrined in the EFTA Convention and in the Swiss-EU Agreement on the free movement of persons. In addition, there is a separate agreement with Liechtenstein which we have not yet mentioned so far. All of these agreements, therefore, should be renegotiated. So far, steps have been taken only with respect to the EU.

In summer 2014, the Federal Council sent a letter to the EU requesting negotiations on the change of the agreement on the free movement of persons in order to allow quantitative limits and national preference. The EU stated that it was not interested in such a change since this would, in fact, mean the end of free movement. It did, however, agree to informal consultations on the situation.