Federal Council wants to overrule the sovereign

Even the editorial team of the “Neue Zürcher Zeitung”, which is otherwise in favour of Switzerland’s closer integration into the EU, is mildly outraged. Before voters get to read the voluminous Framework Agreement 2.0¹ and have a chance to comment on it in the consultation process, the Federal Council strangely announces that it “decided to call an optional referendum on the agreements with the European Union (EU)”.²

Decision is up to parliament

In line with Swiss democratic practice, the Federal Council announced in June 2024 to defer the decision until after the negotiations had been completed and in the context of presenting the dispatch to Parliament. Instead, our “servants of the people” have already “concluded that an optional referendum was the most broadly supported and politically viable solution from a constitutional point of view.” A bold assertion! And the icing on the cake: it is not up to the Federal Council to make this decision, but to Parliament.
  Why is the Federal Council pushing ahead? Are the EU turbos in the Federal Council getting nervous because their colleagues are unwilling to lend a hand to the abolition of Swiss sovereignty? The “Neue Zürcher Zeitung” reveals: “According to several sources, the issue was highly controversial in the Federal Council. The statements made in preparation for the meeting are said to indicate that it was a 4 : 3 decision, which is rather rare.”
  Or is the Federal Council losing its way because more and more politicians and constitutional law experts believe that a mandatory referendum is essential for a bill of this importance? Either way, the Federal Council’s approach is hardly democratic.

Frameork Agreement 2.0 must be
subject to a mandatory referendum

From a legal point of view, the planned EU treaty would not be an “accession to a supranational community” as defined in Art. 140 of the Federal Constitution (see box), but it would have a similarly far-reaching impact on the sovereignty of Switzerland and the cantons, as well as the political rights of voters. While EU turbos such as European law expert Astrid Epiney reject a mandatory referendum decided by Parliament because there is nothing about it in the Constitution, constitutional law professor Paul Richli points out that Parliament has the right to subject proposals to a mandatory referendum “sui generis” over and above the requirements of the Constitution: “The ‘sui generis practice’ is a decades-old practice of the Swiss parliament, according to which particularly significant state treaties can be subject to a mandatory double majority, although this would not be legally required. In particular, the adopted free trade agreement of 1972 between the then EEC and Switzerland and Switzerland’s accession to the EEA, which was rejected in 1992, were subject to a mandatory ‘sui generis’ referendum.”
  Richli cites a multitude of legal reasons for a mandatory referendum on the EU treaty and also expressly advocates the term “Framework Agreement 2.0” instead of the trivializing “Bilaterals III”, as the term Framework Agreement “best captures the institutional significance of the agreement, which is decisive for the referendum”.³ It is in line with the direct democratic Swiss model with the sovereign as the supreme authority that Parliament can leave the final say to the people and the cantons where it considers this appropriate in view of the important legal significance of an international treaty.

EU treaties are tantamount to a
material change to the constitution

In a recent newspaper interview, Paul Richli reiterates once again with regard to the framework agreement: “As a constitutional lawyer, I am clearly in favour of a double majority.” In this interview, too, he explains his assessment in detail and summarizes: “The EU treaties undoubtedly have an extraordinarily wide scope. They are also equivalent to a material amendment to the constitution. They restrict the powers of parliaments and governments at federal and cantonal level and also restrict the free voting rights of citizens at federal and cantonal level guaranteed in the constitution.”
  Paul Richli refers to the great unknown, the euphemistically termed “dynamic adoption of law”: “We don’t know in which direction the EU and the case law of the European Court of Justice will develop. It’s a black box”. For Swiss voters, who are used to participating in decisions on legal developments in their country, this black box in itself is an absurdity. The dynamic adoption of the law “severely restricts the people’s right to vote, in particular the free formation of opinion, because the compensatory measures hover over the decision like a sword of Damocles”. Richli adds that the powers of parliaments and governments at federal and cantonal level would also be curtailed: “EU law can still be rejected, but then there may be compensatory measures that nullify the specific advantages of the agreements.”⁴
  In both interviews mentioned above, the professor emeritus of public law at the University of Lucerne provides an in-depth yet generally understandable insight into the serious interventions of Framework Agreement 2.0 in the Swiss state system and the political rights of citizens.

Why EU turbo drivers are
trembling before the majority vote

If you take into account the many serious interventions in the Swiss state system under the framework agreement, the vast majority of voters will think twice about whether we want to take all this on ourselves and tie ourselves to a bureaucratic juggernaut without any guarantee that this will at least bring us economic benefits. Thanks to the direct democracy, the Confederation, the cantons and above all the municipalities are relatively lean and economical compared to most EU countries.
  Our economy is also doing better – not only because of the financial centre, which only generates a small proportion of tax revenue, but above all because it is organised on a small-scale and federalist basis and is built on a strong foundation of regionally/locally anchored SMEs and a strong dual vocational training system. If we put all of this together, it is hard to imagine that the Swiss people would agree to the EU package, including a flood of internal legislative changes, and be prepared to place themselves under the sword of Damocles of “dynamic legal adoption”. There is probably no need for a majority of the cantons to vote no.
  But just to make sure. This is because the majority of the cantons represents a high hurdle when it comes to votes on restricting Switzerland’s independence in foreign policy. Each canton, whether large or small, has 1 vote, the half-cantons 1/2 vote (see box). Obviously, the population of the smaller rural cantons is still particularly freedom-loving and less willing to be involved. Three examples:

• Referendum on Schengen/Dublin on 5 June 2005: optional referendum. Popular majority 54.6% in favour; the majority of the cantons would not have been achieved, but did not count: 12 against to 11 in favour.

• Referendum on EEA accession on 6 December 1992: Mandatory referendum decided by Parliament. Rejected by the people and the cantons. Narrow rejection by the people with 50.3 per cent against 49.7 per cent in favour. Clear No from the cantons: 16 No to 7 Yes.

• Votes on joining the UN: Mandatory referendum in accordance with the Federal Constitution. 1986: resoundingly rejected by the people and the cantons: popular majority 75.7 per cent against, majority of the cantons: all cantons voted against; 2002: popular majority 54.6 per cent in favour, narrow majority of the cantons: 12 in favour to 11 against.

Back to the Framework Agreement 2.0: the above examples reveal a truism: “Anyone who supports the new treaties with the EU favours a vote with a simple majority – and vice versa.” So says the “Neue Zürcher Zeitung”. The author adds: “However, it is equally clear that it is not tactical voting considerations, but  state political considerations that should be decisive.”⁵ This honest opinion-forming, which was common in Switzerland until a few decades ago, unfortunately no longer takes place among many politicians today. If only the EU turbos don’t miscalculate: The Swiss people have the final say, with or without a majority of the cantons.

Majority of the cantons
as an important equaliser
between urban and rural cantons

Interviewer’s question: “Why should the vote of a citizen of Uri carry forty times more weight than that of a citizen of Zurich on such an important issue?” Paul Richli’s answer: “The bicameral system was a prerequisite for the creation of the federal state after the Sonderbund War. Without the strong position of the cantons with the majority of the cantons, modern Switzerland would not exist. If we want to change this, we have to change the constitution.”⁶
  However, such a constitutional amendment would require a majority of the cantons. Naturally, it is unlikely that the small cantons would agree to this. Incidentally, of the many hundreds of votes on popular initiatives and mandatory referendums, only ten proposals failed to receive a majority of the cantons; conversely, the people outvoted the cantons four times. Experience has shown that a popular majority of 55 per cent is sufficient to counterbalance the cantons, so the hurdle is not too high. The majority of the cantons is a historically justified equalisation mechanism, a right of defence of the small cantons against the superiority of the larger and economically more powerful ones. It protects federal cohesion and thus peace within the Confederation. •

¹ The texts of the agreements, plus an unknown number of new or amended federal laws, are now said to have swelled to around 1,800 pages.
² “Swiss–EU package: Federal Council calls for optional referendum”. Press release by the Federal Council on 30 April 2025. Schäfer, Fabian. “No majority of the cantons for EU agreements: The Federal Council has already made up its mind before publishing the agreements.” In: Neue Zürcher Zeitung of 30 April 2025
³ Studer, Thomas M. “The double majority for the framework agreement is justified,” says Paul Richli. Interview dated 4 March 2025. https://admin.iwp.swiss/wp-content/uploads/2025/03/2025-01-30_Richli_Referendumsart-fuer-Bilaterale-III-bzw.-Rahmenabkommen.2.0.pdf
⁴ Kälin, Kari. “Stimmrecht wird beschränkt” (Voting rights are restricted). Interview with Paul Richli. In: CH Media from 24 April 2025
⁵ Schäfer, Fabian. “Kein Ständemehr für die EU-Verträge: Der Bundesrat legt sich bereits fest, bevor er die Abkommen veröffentlicht” “No majority of the cantons for EU agreements: The Federal Council has already made up its mind before publishing the agreements.” In: Neue Zürcher Zeitung of 30 April 2025
⁶ Kälin, Kari. “Stimmrecht wird beschränkt” (Voting rights are restricted). Interview with Paul Richli. In: CH Media from 24 April 2025