‘Switzerland is playing a very dangerous game on EU deal’: Foreign minister

The Swiss foreign minister says Switzerland risks a worse bilateral treaty with the European Union in future if it does not agree to the current draft agreement on the table, in a row that has echoes of Britain's fraught Brexit negotiations with the EU.

'Switzerland is playing a very dangerous game on EU deal': Foreign minister
Swiss Foreign Minister Ignazio Cassis in November. File photo: AFP

“Switzerland is playing a very dangerous game,” said Swiss Foreign Minister Ignazio Cassis in a lengthy interview with Swiss daily NZZ.

“We run the risk of having to agree to a worse treaty,” he stated.

Read also: What you need to know about the new Swiss-EU deal

The Swiss government and the EU recently came up with a draft treaty designed to update bilateral relations between Bern and Brussels, which are currently based on around 120 agreements dating back two decades.

The EU is pushing hard for Switzerland to approve the deal but in the face of internal political division on issues including measures to protect Switzerland’s high wages, the Swiss government announced a consultation period.

But Cassis, a member of Switzerland’s centre-right Liberals party, defended the new deal, noting that it contains “80 percent of what we wanted”.

The minister also fears a failure to sign the deal could backfire on Switzerland.

“In the current situation, one can’t expect the EU to be more accommodating two years from now,” he warned.

“Because of Brexit, the EU has to show member states what it means to leave [the Union] or – as is the case of Switzerland – to not be a member,” he added.

Read also: Switzerland signs off on post-Brexit trade agreement with UK

He said that for the EU, Brexit and the Swiss negotiations were essentially “twin themes.”

“They [Brussels] have to lay down the law internally. The EU can only retain its credibility if it is tough on third-party countries like Switzerland,” he told NZZ.

Cassis also used the interview with the paper to defend Switzerland against an attack launched by Brussels earlier this week.

On Monday, European Commissioner Johannes Hahn warned Brussels wouldn’t be coming back to the negotiating table regarding a deal it considers final. He said there was “no such thing as an à la carte framework agreement” between Brussels and Bern.

“The ball is now in Bern's court,” he said.

But Cassis said the comments from Hahn came down to a “misunderstanding” over what constituted negotiations.

He said Switzerland had not actually negotiated with the EU on its wage protection measures or over the controversial possible future adoption by Switzerland of the Citizens' Rights Directive – an agreement which gives citizens of the European Economic Area (which includes the EU and Switzerland) and their families a wide range of rights in terms of freedom of movement and entitlement to welfare benefits, and which Switzerland has consistently refused to sign.

Instead, according to Cassis, what the EU had presented was an “offer”. 

In a comment that is sure to send chills down the spines of many observers, he also said negotiations were never over. They could always begin again although “not with the same mandate” and with “an uncertain outcome”.

At present, internal political divisions in Switzerland over the new draft deal on bilateral relations with the EU are focused on the fact that it puts limits on how far Switzerland can go to protect its workforce against cheaper foreign labour, given these measures contravene EU rules on the free movement of persons.

Unions are angry that the notice period given by foreign firms deploying foreign workers in the country would be reduced from eight calendar days to four working days.The notice period is used by authorities to confirm companies are not undercutting high local salaries.

But in an attack on the left-wing and unions, Cassis said Switzerland should look for “pragmatic solutions” and not “conduct ideological warfare.”

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EXPLAINED: Which Schengen area countries have border controls in place and why?

Borders within Europe's Schengen area are meant to be open but several countries have checks in place but are they legal and will they be forced to scrap them? Claudia Delpero explains the history and what's at stake.

EXPLAINED: Which Schengen area countries have border controls in place and why?

The European Court of Justice has recently said that checks introduced by Austria at the borders with Hungary and Slovenia during the refugee crisis of 2015 may not be compatible with EU law.

Austria has broken the rules of the Schengen area, where people can travel freely, by extending temporary controls beyond 6 months without a new “serious threat”.

But Austria is not the only European country having restored internal border checks for more than six months.

Which countries have controls in place and what does the EU Court decision mean for them? 

When can EU countries re-introduce border checks?

The Schengen area, taken from the name of the Luxembourgish town where the convention abolishing EU internal border controls was signed, includes 26 states: the EU countries except for Ireland, Bulgaria, Cyprus, Croatia and Romania, plus Iceland, Norway, Lichtenstein and Switzerland, which are not EU members.

The Schengen Borders Code sets the rules on when border controls are permitted. It says that checks can be temporarily restored where there is a “serious threat to public policy or internal security”, from the organisation of a major sport event to a terrorist attack such as those seen in Paris in November 2015.

However, these checks should be a “last resort” measure, should be limited to the period “strictly necessary” to respond to the threat and not last more than 6 months.

In exceptional circumstances, if the functioning of the entire Schengen area is at risk, EU governments can recommend that one or more countries reintroduce internal border controls for a maximum of two years. The state concerned can then continue to impose checks for another six months if a new threat emerges. 

Which countries keep border checks in place?

Countries reintroducing border controls have to notify the European Commission and other member states providing a reason for their decision. 

Based on the list of notifications, these countries currently have controls in place at least at some of their borders: 

Norway – until 11 November 2022 at ferry connections with Denmark, Germany and Sweden. These measures have been in place since 2015 due to terrorist threats or the arrival of people seeking international protection and have sometimes extended to all borders.

Austria – until November 2022 11th, since 2015, at land borders with Hungary and with Slovenia due to risks related to terrorism and organised crime and “the situation at the external EU borders”. 

Germany – until November 11th 2022, since November 12th 2021, at the land border with Austria “due to the situation at the external EU borders”.

Sweden – until November 11th 2022, since 2017, can concern all borders due to terrorist and public security threats and “shortcomings” at the EU external borders. 

Denmark – until November 11th 2022, since 2016, can concern all internal borders due to terrorist and organised criminality threats or migration.

France – until October 31st 2022 since 2015, due to terrorist threats and other events, including, since 2020, the Covid-19 pandemic.

Estonia – until May 21st 2022, from April 22nd 2022, at the border with Latvia “to facilitate the entry and reception of people arriving from Ukraine”.

Norway, Austria, Germany and France also said they are operating checks on non-EU citizens. 

Can Schengen rules survive?

Despite the exceptional nature of these measures, there have been continuous disruptions to the free movement of people in the Schengen area in the past 15 years. 

Since 2006, there have been 332 notifications of border controls among Schengen countries, with increasing frequency from 2015. In addition, 17 countries unilaterally restored border controls at the start of the pandemic. 

In December 2021, the Commission proposed to reform the system to ensure that border controls remain an exception rather than becoming the norm. 

According to the proposals, countries should consider alternatives to border controls, such as police cooperation and targeted checks in border regions. 

When controls are restored, governments should take measures to limit their impacts on border areas, especially on the almost 1.7 million people who live in a Schengen state but work in another, and on the internal market, especially guaranteeing the transit of “essential” goods. 

Countries could also conclude bilateral agreements among themselves for the readmission of people crossing frontiers irregularly, the Commission suggested. 

If border controls have been in place for 6 months, any notification on their extension should include a risk assessment, and if restrictions are in place for 18 months, the Commission will have to evaluate their necessity. Temporary border controls should not exceed 2 years “unless for very specific circumstances,” the Commission added. 

At a press conference on April 27th, European Commissioner for Home Affairs Ylva Johansson said the EU Court ruling about Austria is in line with these proposals.

“What the court says is that member states have to comply with the time limit that is in the current legislation. Of course we can propose another time limit in the legislation… and the court also says that it’s necessary for member states, if they would like to prolong [the border controls] to really do the risk assessment on whether it’s really necessary… and that’s exactly what’s in our proposal on the Schengen Border Code.”

Criticism from organisations representing migrants

It is now for the European Parliament and EU Council to discuss and adopt the new rules.

A group of migration organisations, including Caritas Europe, the Danish Refugee Council, Oxfam International and the Platform for International Cooperation on Undocumented Migrants (PICUM) have raised concerns and called on the EU institutions to modify the Commission proposals.

In particular, they said, the “discretionary nature” of controls in border regions risk to “disproportionately target racialised communities” and “practically legitimise ethnic and racial profiling and expose people to institutional and police abuse.”

Research from the EU Fundamental Rights Agency in 2021, the groups noted, shows that people from an ‘ethnic minority, Muslim, or not heterosexual’ are disproportionately affected by police stops.

The organisations also criticize the definition of people crossing borders irregularly as a threat and a new procedure to “transfer people apprehended… in the vicinity of the border area” to the authorities of the country where it is assumed they came from without any individual assessment. 

The article is published in cooperation with Europe Street News, a news outlet about citizens’ rights in the EU and the UK.