Are the four freedoms of the EU indivisible

EU leaders are insufficiently familiar with bilateral agreements

Certain top representatives of the EU used wrong arguments in the dispute over the free movement of persons, criticizes Christa Tobler, professor of European law in Basel.

This week the EU Council wrote it in the report on the relationship with Switzerland: "The free movement of persons is a pillar of EU law." And the four fundamental freedoms of the EU internal market, free movement of persons, free movement of goods, freedom of services, free movement of capital are "indivisible". Renegotiations on the free movement of persons are therefore impossible. The argument is well known: on the day the immigration initiative was adopted, Viviane Reding, then Vice President of the EU Commission, declared: “The internal market is not Swiss cheese. There is no single market with holes. " A formula that has often been heard in Brussels since then.

But repeating the argument does not make the argument any more correct: If “a part of the top political class of the EU” claims with reference to Switzerland that the internal market including the free movement of persons only exists or not at all, “then in my opinion this shows a lack of knowledge of the bilateral agreements, ”says Christa Tobler, professor of European law at the University of Basel. Switzerland has never fully taken over all fundamental freedoms. "On the contrary: we are only involved in three fundamental freedoms and not fully in any of them." Even the free movement of people is not as comprehensive in Switzerland as it is in the EU. Because there it is also applicable to legal persons: companies are allowed to settle in the internal market wherever they want. Tobler: "Switzerland has only adopted this regime to a very limited extent", in separate agreements on insurance and air traffic.

According to the professor, the other fundamental freedoms that are part of bilateral law between Switzerland and the EU also only apply to a limited extent: In the case of the free movement of goods, the federal government applies the Cassis-de-Dijon principle, according to which goods that are permitted in an EU country are throughout the internal market may be sold, unilaterally and only partially, some products are excluded. And with regard to the freedom to provide services, “we have a restricted regime in the Agreement on the Free Movement of Persons that only allows services for a maximum of 90 days per year,” said Tobler.

The argument that the fundamental freedoms are indivisible is therefore not valid. Nevertheless, the professor does not deny the EU the right to refuse negotiations on the free movement of persons. On the contrary, she “understands”. The agreement on the free movement of persons provides for the possibility of renegotiations, "but there are no obligations for one or the other side." When the EU called for negotiations on the introduction of the Union Citizens' Directive, it was Switzerland that said no. Brussels has now told Bern that the EU is only interested in the free movement of persons agreement if it is based on the principle of equal treatment: both in relation to the EU states, which excludes a special regulation for the youngest EU member Croatia, and in relation to workers Tobler said that neither priority nor quotas were allowed. "Against this background, it is legitimate if the EU does not want to agree to renegotiations in the spirit of the mass immigration initiative."