Development of EU law – What does it mean for Switzerland?

Considerations from a viewpoint concerned with constitutional law and the politics of sovereignty

Interview with Thomas Minder (Canton of Schaffhausen), member of the Swiss Council of States

In some of the bilateral agreements between Switzerland and the EU, we find provisions according to which Switzerland has undertaken to apply the so-called “development” of EU law, that is, to take over EU edicts which were not yet in force at the time when Switzerland signed and ratified the agreement and which had often not even been expected by anyone. According to the Swiss Confederation’s website, this includes the Schengen/Dublin agreement: “Through association with the Schengen and Dublin agreement, Switzerland is committed to implementing developments of the Schengen and Dublin legislative frameworks.”¹
So far, there have been three “developments” of the Dublin Agreements, called Dublin I, II and III. They each were addressed with a so-called exchange of notes between Switzerland and the EU. The Federal Council took note of the changes and made sure that Switzerland would adjust its legal system accordingly. Currently the European Commission is calling on Switzerland to comply with the allocation of EU asylum seekers according to the proposed permanent distribution key. In the course of this it is not the first time, that the constitutionally burning question arises of whether and how the implementation of these EU decisions are compatible with direct democracy. We, the citizens of Switzerland and our elected parliamentarians, have to remind the Federal Council from time to time that they are committed in the first place to the Swiss sovereign and not to the Brussels potentates. In this sense, member of the Council of States, Thomas Minder (Canton of Schaffhausen, entrepreneur, independent), submitted his interpellation to find out what the Federal Council’s point of view about the Brussels request mentioned was and how they intend to safeguard the democratic rights of the parliament and the people.²
In this context it is clearly to be noted that the author of this interpellation and along with him the vast majority of the Swiss population do not at all question the humanitarian obligation of Switzerland towards refugees and other people in need. Of course, Switzerland will continue – as it has always done – to allow every human being with a reason for asylum, and many others who come from war and crisis areas, to come to Switzerland either permanently or temporarily. We citizens expect the Swiss government to ensure that Switzerland will decide its own affairs as a sovereign state rather than continue to submit itself to EU law – even the future ones! – with usually only a barely audible protest.

Current Concerns: Mr Minder, what did you want to achieve with your interpellation?

Mr Thomas Minder, Council of States: I am concerned with the question how such a development can be organised in our legal framework, for instance, the EU’s ideas of distributing the refugee quotas. That issue will not only come up in bourgeois circles. In what way will this concern Switzerland? I am glad that the response of the Federal Council makes things clearer. I am sitting in the Political Institutions Committee of the Council of States, which deals with the political asylum system. Some time ago we were discussing the so-called Dublin III Agreement. At that time it was a matter of Lampedusa because so many refugees were arriving there. At that time, Federal Councillor Ms Sommaruga came and said that we would not have time for the ordinary legislation, because that would take two years, and the EU wanted us to move “as fast as the fire brigade.” Therefore, the adjustment was regulated via temporary federal ordinance. (It took scarcely two weeks from the Federal Council’s press release to the provisional entry into force of Dublin III. And this was at the time of the official holidays!³) It was not until a year after this fait accompli that the Federal Council issued an ordinary decision, which was then subjected to an optional referendum.
Now I suppose that there will be a “Dublin IV” concerning the refugee quotas, again accompanied by an exchange of notes between the EU and Switzerland. But this time it will not be possible to rubber-stamp this so easily by way of the Federal Council and the committees (meaning the pertinent commissions of the National Council and the Council of States). If it really comes down to an exchange of notes, and if again there is to be no law but due to time pressure just a regulation, we would have to assure to subject it to an optional referendum from scratch. I imagine that it would come to a referendum vote in that case.

So you want to clarify the legal situation above all?

I do, especially with regard to the quota refugees. For me, the haste with which the Lampedusa Dublin III Regulation was composed was unpleasant. Because in the beginning there was a referendum on the Dublin Agreement, thus there should always be one on its further development. Apparently, the Dublin III Regulation was subject to a referendum. Because it was not so very important, the referendum question was not an issue. But it is still unpleasant to see that we concede the point and rubber-stamp a regulation and go without the legislative procedure, for reasons of time and because the EU is pressing ahead.

What do you think of the currently available written response of the Federal Council, that this is not a case of EU Diktat?

When I used the word diktat I meant that the EU wants to allocate quota refugees to us. But the Federal Council has clearly assented voluntarily; they are in favour of the allocation formula. The EU Council has indeed not yet adopted the regulation, it is a Commission proposal. Although the Federal Council is in favour of the previously discussed four factors (population, GDP, previous asylum applications, unemployment rate), this topic will be intensively discussed in parliament. The key question, by the way, has not been answered: Will all the refugees who come to Switzerland be allocated via Brussels?

So does the Federal Council agree before the EU Member States are agreeing?

Yes, they say they are in favour of the EU Commission’s proposal. But I am glad that it is not simply a development of Dublin, in which we would have almost no say, but that there will at least be an exchange of notes. As Dublin III was subject to a referendum, then Dublin IV, that is the issue of quota refugees, must be all the more subject to a referendum.

So it was an important goal of your interpellation that the voters can have a say. You even posed the question of whether Dublin IV would not have to be subject to a mandatory referendum. We can probably already negate this question, can’t we?

Talking as we are, you are right. It would need “scho es bitzeli meh” (Swiss dialect: “just a little bit more”) for a mandatory referendum. But of course we have to think in this direction: At the beginning there was the referendum on Schengen/Dublin, and the refugee quotas represent such a new system that they cannot be simply waved through without the participation of the electorate, the people. Since our asylum system is federalist (cooperation between the federal government and the cantons and communes), it is impossible that a fourth level, which is Brussels, is virtually empowered to make final decisions about how many refugees we are to receive. This would be a new phenomenon, and would have constitutional status.

So your main concern was also to clarify whether important decisions bypass the people, also bypass parliament …

Not quite by parliament, but Dublin III was only submitted to the commissions for a consultative review and not to the entire Parliamentary Councils, and that is questionable, that the processes are in this way bypassed due to time constraints. In my capacity as an entrepreneur I am also a person who likes to move full throttle, but if the EU says it is urgent, and we just need two years until a law is passed by all democratic processes ... For instance the Lex USA was pushed through in the course of 3 weeks, and the same goes for the flat rate withholding tax for Austria, Germany, the UK. When a demand comes from outside, then we push the thing through as if it were a fire run. But such an accelerated procedure does not comply with the Swiss concept of democracy – that is what I wanted to remind the Federal Council and my colleagues in the Council of States.

Mr Minder, member of the Council of States, thank you very much for the interview.     •

(Interview Marianne Wüthrich)

1    <link http: www.sem.admin.ch sem de home internationales internat-zusarbeit europa-migpolitik schengen-dublin.html>www.sem.admin.ch/sem/de/home/internationales/internat-zusarbeit/europa-migpolitik/schengen-dublin.html
2    cf. Interpellation 15.3915, “Permanenter EU-Verteilschlüssel für Flüchtlinge. Reaktion der Schweiz und Vereinbarkeit mit der Masseneinwanderungs-Initiative” (Permanent allocation key for refugees. Reaction of Switzerland and compatibility with the Popular Initiative “Stop Mass Immigration”)
3    “Der Bundesrat hat heute entschieden, einen Grossteil der Bestimmungen der neuen Dublin-III-Verordnung gleichzeitig mit allen anderen Dublin-Staaten ab dem 1. Januar 2014 vorläufig anzuwenden. Die Verordnung betrifft den Asylbereich und hat zum Ziel, das Dublin-System effizienter zu machen und die Rechtsgarantien von Asylsuchenden zu stärken.» (Medienmitteilung des Bundesrates vom 18.12.2013))
    (The Federal Council decided today to provisionally apply the bigger part of the new Dublin III provisions simultaneously with all the other Dublin-states starting from 1 January 2014. The regulation concerns the area of asylum and aims at making the Dublin-System more efficient and at reinforcing the legal safeguards for asylum seekers.” (Press Release issued by the Swiss Government on 18 December 2013)

mw. It’s all over town: It is not just the Swiss but all the peoples who want to decide themselves on their own affairs. On 3 September 2015 also the majority of the Danes have voted in a referendum against the abolition of their special rules with the EU. In 1992 the Danish sovereign had rejected the Maastricht Treaty and therefore does not participate fully in the EU’s security policy, justice and home affairs. The accession to the Monetary Union was rejected as well in a referendum held in 2000: the Danes remained with their national currency, the Danish krone. In their latest decision now, the Danes said “no” to closer ties with EU’s security policy, justice and internal affairs. Specifically, they also said “no” to a centralised regulation of police cooperation with Europol. This happened despite the recommendation of the government and most of the political parties.
Particularly interesting for us Swiss: As Denmark is not willing to participate in the supranational Europol regime, it has to make efforts to achieve parallel agreements with the EU (according to the daily press, e.g. “Frankfurter Allgemeine Zeitung” of 3 December 2015).
Aha, listen to this, independence loving Swiss speaks to himself. It is possible after all to negotiate parallel agreements with Brussels. How about a renegotiation of the Agreement on the Free Movement of Persons between Switzerland and the EU?