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Who is in charge in our country? (Part 2)

by Dr iur Marianne Wüthrich

“There is an increasing restriction of people’s rights as well as a limitation of sovereignty and independence of Switzerland. A dangerous development – less and less is decided in Switzerland and ever more by any boards that are democratically not legitimised and that decide away on Switzerland.”

(National Councillor Lukas Reimann about the ‘Self-determination initiative’, Current Concerns No 14 from 30 June 2016)

The “self-determination initiative” which was introduced recently in Current Concerns mainly refers to two areas: Swiss citizens want to get back the decision-making power – entitled to them under Federal Constitution, and that towards the European Union and its Supreme Court, the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR). For the initiators it is not about encouraging the restriction or even disregard of fundamental rights, as opponents of the “self-determination initiative” claim. It is rather the constitutional duty to be claimed by Federal Court and Federal Administration (including their direction, the Federal Council and his negotiating diplomats), to insist to foreign institutions on the application of Swiss law in Switzerland. It is extremely unfortunate that this referendum is necessary at all!
    To make these constitutional issues more understandable, two current examples will be presented here.
    One concerns the negotiations of Switzerland with the EU on an institutional framework agreement which will establish the obligation of Switzerland to take over new EU law or new decisions of the European Court of Justice.
    After that, we turn to the latest case-law of the Swiss Federal Court on the application of the Free Movement of Persons Agreement (FMPA).
    Once a safe anchor in the structure of the Swiss Confederation, the Swiss Federal Court is behaving today as if it would be the supreme authority in the State, what is not true. In the Swiss State model, the people, the constitution legislator, is the highest instance.

Federal Councillor Didier Burkhalter’s previous assertion that the renegotiation of the Free Movement of Persons could be negotiated only in conjunction with an institutional framework agreement with the EU is no longer of any value since the minor earthquake in Brussels, caused by the Brexit. After a conversation between some Swiss parliamentarians and EU Parliament President Martin Schulz reported by Karin Keller-Sutter, the EU speaks of a transition solution, according to which Switzerland should unilaterally implement Article 121a of the Federal Constitution (Control of immigration); later a common solution is to be found (cf. “St. Galler Tagblatt” 4 July). Well – now the National Council and the Council of States could discuss the present proposal for the amendment of the Foreign Nationals Act (cf. Current Concerns No 15, 12 July) without being constantly under pressure from Brussels. Instead, Karin Keller-Sutter explains: “We need to insist that the talks will not be interrupted.”
This is confusing: Who has an interest that an institutional framework with the EU should be imposed on Switzerland? Aren’t some politicians too far away of
the Swiss understanding of the State to secure the wonderful free EU market for the global corporations headquartered in Switzerland?
It is a mystery for the Federal Council itself whether and how they can bring an institutional framework agreement through the stormy waters of a referendum vote. They would be only too glad to have replaced the ECJ by a panel less smelling of “foreign judges”, but the EU refuses to cooperate. Now, Didier Burkhalter brings a “solution”, supposedly changing binding decisions of the European Court of Justice to harmless “interpretations”.

“Interpretations” and “clear judgements” of ECJ

Often, there is “some legal scope” in the judgments of the ECJ, explained Burk-halter on 26 April on Swiss television. To illustrate, he mentions the Swiss right to appoint. For workers from EU/EFTA countries who want to work in Switzerland or are sent by a company abroad, Switzerland prescribes a reporting deadline of eight days in advance. If the European Court of Justice (ECJ) means that this period is too long, so Burkhalter, then in the Joint Committee could be discussed how many days were the best.1
That would be a decision “without foreign judges”. If the European Court of Justice, however, passes a “clear sentence” so Burkhalter, then there is no legal scope. But Switzerland could say then whether it wanted or not take the decision, therefore one could not speak of foreign judges. However, in the case of its rejection of the judgment Switzerland would be punished by the EU with still unknown “compensation measures” (SRF news 26April).
Objection, Mr Burkhalter! If the ECJ throws down some crumbs to the Swiss diplomats and graciously allows to “discuss” in the Joint Committee with their EU opponents a narrow question that is an unworthy subjection under a foreign court. The more, it is not clear what happens if the Committee agrees, for example, on six days and for the ECJ this is still too long… Or are the EU representatives in the Committee instructed before the “discussion” how many concessions the ECJ makes to the Swiss?
Concerning the “clear judgments” of the European Court of Justice: If we can still say that we do not agree, however still obediently undergo the punitive measures of the Luxembourg Court – are we then still independent and free, “as the fathers were”?

The Swiss Federal Court: at the will of the sovereign has no constitutional jurisdiction at federal level

The Federal Court reviews primarily last-resort decisions by the cantons in terms of proper application of federal law and compliance with the citizen’s fundamental rights (see Art. 189/190 FC). Most important, it is not for the Federal Court to review the constitutionality of federal laws, i.e. decrees by the legislature (parliament or the popular right of facultative referendum). For it is entirely in the spirit of the Swiss concept of the state that in the Swiss Confederation the sovereign is the supreme authority. For this reason the introduction of a constitutional jurisdiction at federal level was clearly rejected by Parliament in the year 2012. A great number of parliamentarians then expressed in the debate their profoundly democratic cast of mind, as for instance member of the Council of States Ivo Bischofberger (Christian Democratic People’s Party, Appenzell Innerrhoden): “Ultimately, what is at stake here is nothing less and nothing more than the paramount issue of who in Swiss politics, who in our country has the final say. We always fared well with the principle that no judge can put himself above the people.” (Minutes of the Council of States of 5 June 2012 on the parliamentary initiative 07.476)
Pursuant to Article 190 of the Federal Constitution the Courts besides Federal acts also apply “international law”, that is – if one relies on the 1874 Federal Constitution – international treaties approved by the Federal Assembly (see Art. 113(3) FC 1874). It goes without saying that the Swiss judicial authorities in their decisions also have to take account of, for instance, the European Convention on Human Rights and the bilateral agreements. It cannot be accepted, however, that the Federal Court has become in recent years a mere “implementation aid” of the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ), in most cases unquestioningly adopting their decisions.

The Federal Constitution – no “valid reason” to deviate from recent ECJ case law?

The Federal Court discloses the direction, in which it is ultimately heading, in its new judgment of 26 November 2015: The principles upheld by the court in regard to the Free Movement of Persons Agreement (FMPA) with the EU, which are here announced, go far beyond the court’s jurisdiction and reach into politics.
It is true that the Swiss courts have to take account of the “relevant case-law” of the European Court of Justice prior to the date of the signature of bilateral agreements I (21 June 1999). (Article 16(1) FMPA) However, “Case-Law after that date shall be brought to Switzerland’s attention.” (Article 16(2) FMPA; emphasis Current Concerns) Therefore, Switzerland did not enter into any obligation to apply ECJ rulings after 21 June 1999.
Contrary to the clear wording of Article 16(2) FMPA the Federal Court is travelling more and more in the tracks of the European Court of Justice. In its new decision of 26 November 2015 the Federal Court now declares that it will also comply with ECJ rulings after June 1999 and will deviate from them only, “if there are valid reasons to do so”.2
In the said judgment the Federal Court states in many words that such “valid reasons” actually cannot exist. In the opinion of the judges, for instance, the new Article 121a of the Federal Constitution adopted by the sovereign, “Control of Immigration”, is no such valid reason, because it must first be implemented through legislation and in negotiations with the EU. (Judgement 2C_716/2014, Consideration 3.1.) Furthermore, the Federal Court overrides its own practice declaring it has decided “with regard to the Free Movement of Persons Agreement” that “this shall take precedence over any consciously deviating statutory law”. In other words, it creates an exception to its own rule devised especially for this agreement, which on top of that is justified by the fact “that the Free Movement of Persons Agreement is democratically legitimated (by its adoption in a referendum)”. (Consideration 3.3.) This, however, is also true for article 121a of the Federal Constitution!
As regards the federal judges reluctance to accept the said constitutional article as a “valid reason” the “NZZ” Federal Court correspondent Katharina Fontana  aptly wrote: “One might assume that the acceptance of the mass immigration initiative by the people and the cantons and thus the approval of a shift in immigration policy would be such a ‘valid reason’ for the Federal Court to interpret the Free Movement of Persons Agreement restrictively in the future and to adopt the newly evolving ECJ case law only with caution. But this is not the case. According to the federal judges there is an overriding interest in a parallel jurisdiction, which cannot even be restricted by Article 121a of the Constitution.”3
In an outstanding analysis of this Federal Court judgment the Zurich constitutional law professor Andreas Glaser critically notes concerning the significance or non-significance of the “valid reasons”: “Overall, the deviation proviso seems to be merely rhetorical, for the Federal Court has never departed so far from an interpretation of a relevant ECJ ruling for valid reasons.”4
In plain language: The Federal Court makes clear which direction Switzerland, in its opinion, should take in the future, overstepping by this partisanship the boundaries of the separation of powers.

Federal Court has to abide by the principle of separation of powers and is not to make political decisions

The motivation of this unauthorised Federal Court’s practice, is in reality purely of political nature and aims at the implementation of a “parallel legal situation” to the EU in Swiss case law, that is to take over increasingly the interpretation of the Free Movement of Persons Agreement and the numerous other bilateral agreements by the European Justice Court. In this way, the Swiss legal system is taking discrete small steps to gradually slipping into the centralised EU legal system, rather unaffected by democratic values, known to be often of little justice according to the various national law and values structures of the EU Member States.
In this highly questionable direction the Federal Court leans out far beyond the competence of the judiciary concerning the judgment discussed here and intervenes in the political order of the relations between Switzerland and the EU. “Switzerland has indeed not become part of the entire internal market by the Free Movement of Persons Agreement and the other sectoral agreements, but after all is involved sectorally in the common market as far as the agreements reach. Such sectoral participation in the internal market is only possible and operable if the effective standards are understood uniformly, provided that they are subject of the Free Movement of Persons Agreement, and if on the one hand the Federal Court [...] and on the other hand the European Federal Court do not differ from a common understanding of the terms used in the context of the free movement acquired ‘acquis communautaire’ without objective reasons.”5
It is not at all a matter of the Federal Court to take care of the functioning of Switzerland’s participation in the EU internal market! It almost seems as if the highest Swiss Court would pave the way for the full accession of Switzerland to the European Union regarding the eagerness with which it sets for a smooth adoption of the acquis communautaire!
In their analysis Glaser/Brunner hint at the fact that it is the Federal Court’s “constitutional duty to exploit scopes of international law”. By taking advantage of these scopes in favour of the Swiss legislator, i.e. including his will in its legal findings which is, for example, behind the Article on immigration FC 121a, namely to permit residence for foreigners more restrained. (see Glaser/Brunner, p. 12) Instead, the Federal Court even interferes with the legislative in the present judgment and even lays down the law – in clear violation of the separation of powers – to the legislature: “A conflict on international treaties could arise if a negotiated settlement with the EU would not be possible, national amendments of the legislation should differ from the Free Movement of Persons Agreement, and if these could not be applied in accordance with the FMPA by international law interpretation. But in case of an actual conflict of norms the FMPA would have priority by the application of law in accordance with the principles set out.”6
In English for non-lawyers: If Parliament will not subordinate to Brussel’s headquarters, but dares to adopt a unilateral national safeguard clause in a law against the excessive influx by EU citizens contradicting the agreement on the free movement, then – the Federal Court threatens in advance! – it will continue its jurisdiction unilaterally oriented on the FMPA in the current style, without worrying about the rules of the Swiss legislature.
* * *
Strong stuff! It is grotesque: Are executive and judicial ranks closing the lines to play a trick on the sovereign, the supreme authority in the Swiss federal state?
All the more pleasing the rational approach of Professor Dr iur Andreas Glaser, a young Swiss constitutional law professor who shows a keen instinct for the innate order of separation of powers in our country. In addition to the voters who set the course through elections and voting, also the clear voices of teaching and research have an important role to play turning themselves courageously against the current.     •

1     The Joint Committee is composed of representatives of Switzerland and the EU, serving the  exchange of information, monitoring the application of the Free Movement of Persons Agreement and taking decisions; cf. Article 14 of the Agreement between the Swiss Confederation on the one hand and the European Community and its Member States on the Free Movement of Persons on the other hand, resigned 21 June 1999, entering into force on 1 June 2002; cited FMPA
2    Press Release of the Federal Court of 26 November 2015; Judgment 2C_716/2014 (documents not available in English)
3    “Der Volkswille spielt keine Rolle”. Neue Zürcher Zeitung from 30 January 2016; see also Press Release of the Swiss Federal Court from 26 November 2015; Judgment 2C_716/2014
4     Andreas Glaser/Arthur Brunner. Politik in der Defensive: Zwischen Vorrang des FZA und dynamischer Rezeption der EuGH-Rechtsprechung (ECJ). In: Jusletter 18 April 2016; p. 10/11; cited: Glaser/Brunner
5     Judgment 2C_716 / 2014 consideration 3.2.
6     Judgment 2C_716 / 2014 consideration 3.3