Dynamic adoption of law: relinquishing one‘s own legislative sovereignty?

mw. The core point of the framework agreement between Switzerland and the EU is the so-called dynamic adoption of law, Switzerland’s obligation to adopt the legal norms and case law of the EU now and in the future. In conversation with Professor Andreas Glaser, it becomes clear that the entire construct, which is supposed to preserve Switzerland’s sovereignty and the direct democratic rights of the people, collapses under the scrutiny of the Swiss constitutional lawyer.

Current Concerns: Professor Glaser, I am delighted to be speaking with you about the upcoming vote on the agreements with the European Union. Until now, it has always been said that dynamic adoption of legislation would ensure that the rights of the people would continue to be upheld.
  Parliament would have to implement new European Union law with a federal law that is subject to an optional referendum. Now we learn that Brussels has enforced the so-called integration procedure for some of the most far-reaching agreements in terms of domestic policy.
  According to the Federal Council, this means that European Union legal acts would in principle be applied directly by Switzerland without being transposed into national law. Does this mean that the direct democratic rights of the people are being eliminated?
Andreas Glaser: Formally, the right of referendum remains intact in the integration procedure, at least in the first step. The Joint Committee must also approve the adoption of the law in this case. If this decision by the Joint Committee is so important that it requires the approval of Parliament or the voters, then there is also the option of launching an optional referendum against it in the first stage of the integration procedure. What is eliminated is the second stage, namely launching a referendum against the implementing law. This is not possible in the integration procedure because the European Union legal act applies directly.

Would Parliament then be obliged to put an important decision to a referendum?
Exactly. Formally speaking, the referendum remains valid. The problem with the whole thing, however, not only with the integration process but also with the dynamic adoption of legislation in general, is that Parliament and the people are actually obliged to approve the adoption of legislation, otherwise compensatory measures will be taken. This is the tension or strategy of the Federal Council, which says: formally, there is still the possibility of saying no. That is true, but legally there is actually no room for manoeuvre; European Union law must be adopted. With the equivalence procedure, Switzerland would have a little more room for manoeuvre because it could formulate its own implementation law. But in material terms, the dynamic adoption of legislation fundamentally restricts the scope for action. Or, as the opponents say: how much freedom is there then? Every three to five years, one might be able to say no once and then accept compensatory measures. But of course, it cannot become a permanent state of affairs for Switzerland to always say no. The European Union will probably not accept that.

The political influence of the
Federal Council would increase at the
expense of Parliament and the people

You suggest bringing forward the referendum to the Joint Committee. What would that achieve?
I don’t yet have a clear idea of what that should look like. But I think that if this treaty were to come into force, we would have to try to protect the rights of voters and also of Parliament as early as possible, for example with a right of motion for Parliament or a right of initiative for the people, with the message: Attention Federal Council, please resist this at an early stage. Or to signal to Parliament: there are considerable concerns here. This is also the idea behind decision shaping¹, where the Federal Council always emphasises that Switzerland could get involved at an early stage. Because once the Federal Council and then Parliament have said yes to adopting legislation in the Joint Committee, and only at the very end, after all the arguments have been exchanged, the people have their say, then the referendum campaign will really only be about one thing: compensatory measures yes or no, or how bad is this adoption of legislation, so that we are willing to accept it.

Shouldn’t this come from the people, through an initiative, or from Parliament? Because the Federal Council won’t initiate this, will it?
That’s exactly right. The Federal Council, as we can see in the explanatory report and the accompanying legislation to the European Union package, has no interest in changing the procedure. This means that its power and political influence would increase at the expense of the legislature, because it is the main player in this crucial initial phase, in decision shaping. This means that Parliament or the citizens would have to take action. Politically speaking, this is the only realistic option, if any.

Would the EU accept that the people have a say in the Joint Committee?
I don’t think the internal distribution between the Federal Council, Parliament and the people will be so decisive for the European Union. It is interested in the result: how often are there problems with the adoption of legislation and how often does it go smoothly? Because dynamic adoption of legislation stipulates – which is why the EU wants it – that Switzerland adopts the legislation in 99 per cent of cases. Otherwise, there would be no point in doing it at all.

Genuine arbitration tribunal or
instrument for enforcing European Union
standards and interests?

I have a heretical question about the arbitration tribunal. Is this really an arbitration tribunal, or is it more of an instrument for enforcing EU standards and interests? Take the Land Transport Agreement, for example: Switzerland has the right to allocate free train paths to foreign railway companies. But in doing so, it must comply with the “principle of non- discrimination”. If, for example, the company Flixtrain appeals to the arbitration tribunal because it disagrees with the allocation, won’t the European Court of Justice ultimately decide how the principle of non-discrimination is to be understood?
From the outset, it is a classic arbitration tribunal, with equal representation from both sides, who then elect the chair. Furthermore, individuals such as Flixtrain cannot appeal directly to the arbitration tribunal, only the European Union can. So Flixtrain would have to persuade the European Commission to take the case to the arbitration tribunal.
  But even here there is an exception, in that the arbitration tribunal must always involve the European Court of Justice when European Union standards are to be interpreted. And this, of course, means that it loses some of its character as an arbitration tribunal and gains a supranational influence through the European Court of Justice, because the arbitration tribunal is bound by its judgement. It initially looks very much like an arbitration tribunal in formal terms, but in substance it has the characteristics of a supranational court.
  Flixtrain, for example, would have to go to the Federal Court. Then the European Commission might say: for whatever reason, this issue is so important to us or significant for rail transport as a whole, it’s about liberalisation and so on. We would bring this case before the arbitration tribunal and say that Switzerland has violated bilateral law. Then the mechanism would be set in motion, and because it concerns European law, the European Court of Justice would probably be involved, and so on. The compensatory measures would mean that Flixtrain might actually be approved at some point. As I said, the arbitration tribunal already has elements of a classic arbitration tribunal, but it certainly also serves to enforce European legal norms. It always depends on the political discretion of the European Commission: is this important to us, do we want to start a dispute with Switzerland now or not?

In your opinion, the arbitrators would have a lot of power if Switzerland and the European Union fail to reach agreement in the Joint Committee. But for this power to be of any use to us, wouldn’t it be necessary for the arbitration tribunal to include Swiss members who would also defend Swiss interests?
Yes, exactly. For example, it could be that Parliament or the people have decided something that the European Union does not like. Then this arbitration tribunal, consisting of three or five people, would have a great deal of power, comparable to or even greater than that of the European Court of Human Rights.
  In theory, an arbitration tribunal consists of independent judges who make neutral decisions based solely on the law, so there is no provision for them to defend the interests of Switzerland, the European Union or anyone else. But that is, of course, probably a somewhat naive idea, as we can also see at the European Court of Human Rights. There, the nomination process is extremely opaque; we never know who has applied, who is on the shortlist of three, which is ultimately decided by the Federal Department of Justice and Police or the Federal Department of Foreign Affairs before the Federal Council sends it to the Parliamentary Assembly of the Council of Europe. This could definitely be improved in the case of the arbitration tribunal.
  I would therefore suggest taking a close look at how Swiss arbitrators are selected. They should have as much legitimacy as possible within the country, for example in the same way that federal judges are elected by parliament and thus have legitimacy.

Won’t the Joint Committee draw up the list of candidates?
In principle, the Europea Union and Switzerland nominate the individuals. The Joint Committee then only has to accept the list.

Approving sanctions
against your own country?

One of the main arguments put forward by European Union supporters is that the arbitration tribunal should be allowed to decide whether the European Union’s compensatory measures against Switzerland are appropriate. If they really represent Switzerland’s interests, they should vote against any punitive measures, especially if these are based on a referendum!
If a case comes before the arbitration tribunal, the only issue will be whether a referendum violates Europea Union law. Switzerland would have to adopt it, but if it does not, the violation is clear, and then it is only a matter of assessing whether the compensatory measures are appropriate. Are they in any way related, are they perhaps proportionate in terms of their amount, and so on? I would say that it is possible that a person looking at this independently could come to a compromise, even against the backdrop of Swiss interests.
  But of course, the fundamental problem remains: Switzerland must adopt the law dynamically, and if it does not, it must provide some form of compensation. And we do not know what kind of practice would then develop, whether it would be more moderate towards Switzerland or more extreme.

Your arguments and the statements made by other personalities on Switzerland’s loss of sovereignty as a result of the adoption of European Union law have further strengthened my critical stance, and I am sure that of many other readers too. Thank you very much.
My main goal is to encourage those who are still undecided to think about the issue and to shake up parliamentarians and tell them: Hey, you need to think about your skills and abilities too.

Thank you very much for talking to us, Professor Glaser •

¹ Decision Shaping: Swiss experts are consulted (alongside experts from Europea Union member states) when the European Commission drafts new legislation. Explanatory report by the Federal Council, p. 72f.

* Andreas Glaser is Professor of Constitutional, Administrative and European Law with a special focus on democracy issues at the University of Zurich.