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The crude clause of the treaties with the EU is in the vote to talk about the free movement of people. Someone who was sitting at the negotiating table at the time sees the “guillotine” as a direct reaction to a Swiss demand.
Historic day with aftermath to this day: Federal Councilors Pascal Couchepin (right) and Joseph Deiss shortly after the bilateral agreements I signed in Luxembourg on June 21, 1999.
Little by little we are getting to know it: practically every time Switzerland votes on a question of European politics, it reappears: the guillotine clause. Even now, before the vote on the SVP initiative against the free movement of people (PFZ), the seemingly murderous reserve plays an important role. The clause is as banal as it is effective: if Berne or Brussels terminate one of the treaties in the first bilateral package of 1999, the other treaties also automatically expire. The raw clause is legally binding in contracts. At the time, Switzerland reluctantly accepted them and under pressure from the EU. Since then, the guillotine has been regularly criticized.
Discussions often follow a popular pattern in this country: there the unpleasant EU, here the good Switzerland. This is only indicated by the damn name given to the clause. Dieter Grossen was sitting at the table when it was created. He acted as the main federal negotiator for the ZFP when Switzerland and the EU negotiated the Bilaterals I. Grossen says: “The fact that the other party insisted on this clause was a direct reaction to our demands for the free movement of people.”
Suddenly, Bern asked for a seven-year time limit.
Specifically, it was an additional exception clause, which Switzerland required in the ZFP agreement. At this point, it was already agreed that Switzerland would continue to apply quotas in the early years if immigration from the EU was more than 10 percent above the average of the last three years. But that was not enough for the Federal Council. In consideration of internal political skepticism about the free movement of people, she insisted that the agreement would be limited to an additional seven years, combined with the possibility of the electorate to vote again later if someone takes the referendum.
According to negotiator Grossen, EU representatives immediately understood what had happened when the Swiss made this demand in the course of the negotiations. “They understood that the termination of the PFZ and the continuation of the other contracts is not only a theoretical option but also a realistic one from the Swiss point of view,” says the then deputy director of the Federal Office for Migration. It was already clear in advance that Switzerland has little interest in or even rejects the free movement of people, but that this must be part of the deal for the EU. According to Grossen, Berne’s additional demand was the decisive “trigger” that led Brussels to insist that the guillotine clause be explicitly anchored in the treaties.
The principle was not controversial, only its implementation.
Seen like this, the story is not without irony: by insisting on an exit clause from the PFZ, although termination is possible at any time, Switzerland has negotiated the nasty guillotine clause. However, in hindsight, the criticism is easy. At the time, many in Bern were convinced that the seven-year time limit had to be explicitly mentioned in order for the PFZ to have a majority. The truth is that the electorate clearly accepted the Bilateral I 20 years ago with knowledge of the guillotine (67 percent of votes in favor).
The principle behind the guillotine clause was clear from the outset and was also accepted by Switzerland: not only must each individual agreement be balanced, but the overall package must also be of interest to both parties. There was talk of “proper parallelism”. From the beginning of the talks there was a tough fight over which topics should be included in the first package.
The Swiss clause came into force in 2009
However, what was new and unexpected was that in the course of the talks the EU negotiators suddenly demanded that this principle be anchored in a contractually binding way, in the form of the guillotine. And so it happened that both parties enforced their clauses. The Federal Council received its release clause from the PFZ and was able to reassuringly refer to this “important safeguard” in the voting booklet. The EU, on the other hand, received the guillotine clause.
So far, the PFZ clause has only been used in Switzerland. In 2009 there was another vote on the free movement of people after the Young SVP, the Lega Ticinesi and the Swiss Democrats had called the referendum. In particular, it was not only about the continuation, but also about the expansion to Bulgaria and Romania. Sixty percent of those who voted approved the proposal. With that, this clause had lost its meaning. The guillotine, however, continues to develop its full effect.
Speculation continues to this day.
The genesis of the mechanism is still a matter of speculation today. There are also people who believe that the clause suited Swiss negotiators in their efforts to incorporate the country into the EU. Carl Baudenbacher, former president of the Efta Court, wrote this in a 2019 book on Swiss European politics, without citing sources.
The truth is that joining the EU was officially Switzerland’s strategic goal at the time. The Federal Council confirmed it a year after the vote on Bilateral I. At that moment, a popular initiative called for membership reached the polls. The government rejected it for reasons of form and timing, but made it clear that it shared the goal. This raised the suspicion that she was not so unhappy with the guillotine clause.
However, negotiator Grossen’s statements convey a different picture. Upon request, Baudenbacher said this did not rule out the possibility that the guillotine clause was passed to “certain people” in Switzerland. It is also questionable why Bern did not insist that the mechanism expire after the confirmation of the PFZ in 2009. However, the referendum at that time was not the only one. At the end of September, the electorate will again decide on the future of the free movement agreement.
From Brussels’ point of view, the termination of the ZFP by Switzerland would remain problematic if there were no guillotine clause. Without this automatism, it might not be so easy for the EU to terminate the other bilateral treaties in return. This requires unanimity in some cases in the EU Council of Ministers. Depending on the subject area, Switzerland needed a single ally to avoid a layoff.
