The political discussions about the proposed new institutional agreement with the European Union present a diffuse picture. On one side are parties like the Greens and SP, who are generally critical of pro-business policies but are now enthusiastic advocates of the agreement, presenting it as in the economy’s best interest.
On the other side stands the FDP, the founder of today’s Swiss Confederation and Constitution in 1848, which, however, ignores the cantons on this issue. The centre is divided, reflecting its varied stances, while the largest party, the SVP, is well known for its steadfast and dogmatic opposition to any (institutional) rapprochement with the EU.
Facsimile of the Federal Constitution of the Swiss Confederation, Bern, 12.9.1848. The original is in the Federal Archives in Bern.
The Erosion of Swiss Democracy, Model, and Society
What this discussion clearly reveals is the erosion of the Swiss democratic system and its political parties. The Greens and SP, lacking target groups, are increasingly turning into activists. For one, international socialism has given way to European federalism, the supposed brotherhood of European countries and peoples, as well as the oppressed of the world and Switzerland. The other sees its raison d’être as a climate party threatened and seeks other forms of activism and justification for its existence.
What motivates the FDP is not entirely clear, but a balanced institutional discussion about the far-reaching constitutional consequences of the proposed agreement has not taken place.
A constitutional lawyer recently remarked in a daily newspaper that the Federal Council apparently no longer has any lawyers among its ranks. However, activism and opportunism in the Federal Council are the main reasons for the lack of a sound discussion of the constitutional consequences of the proposed agreement. This discussion, if it takes place at all, has a normative content (the letter of the law is the law) that would not have been out of place in the 19th century.
Palais fédéral/ Bundeshaus the 26 cantons
Modern Legal Interpretation and Application of the the Law
It is intended that a mandatory referendum cannot be applied because the constitution does not provide for it. After all, there is no membership in an international organisation (Art. 140 b). There is no mention of modern legal interpretation, teleological, historical, and systematic interpretation of the law, although these principles have been generally recognised in Switzerland, especially after 1945.
In a recent article in the same daily, a law professor argues that this agreement should be judged by its “constitutional” implications. This highly learned jurist then also concludes that there is no membership in an international organisation and, therefore, no mandatory referendum can take place. The clock is being turned back two centuries to achieve a political goal.
Bundeshaus, the legislator
The Unforeseeable Constitutional Consequences of the Agreement
The constitutional consequences are enormous and not even fully foreseeable. The European Union is, after all, a dynamic process with its court as the “engine of integration.”
The decentralised, federal, bottom-up Swiss model—based on direct democracy, subsidiarity, the militia system, and tailored solutions—is being legally and factually subordinated to a centralist international organisation of bureaucrats, professional politicians, and powerful lobbyists with a “one size fits all” principle from Spain to Finland, from Italy to Bulgaria.
Switzerland is giving up the core of its legislative, executive, and judicial powers to an international organisation that is only moderately democratically legitimised and sometimes characterised by rhetoric, grandiose projects, and ambitions.
The Swiss Constitution is Clear:
Art. 1: The Swiss people and the cantons form the Swiss Confederation.
Art. 3: The cantons are sovereign insofar as their sovereignty is not limited by the Federal Constitution; they exercise all rights not transferred to the Confederation.
When legislative and judicial powers are transferred to the Confederation, let alone to an international organisation, the consent of the cantons is mandatory. It is regulated by a mandatory referendum, in accordance with the will of the legislator (Art. 140 b).
Furthermore, there is no clarity whatsoever regarding the many current and future areas of the European Union which, in decentralised and federal Switzerland, still fall under the sovereignty of the cantons (for example, taxation, nature reserves or the monopolist Salinas AG, owned by the 26 cantons).
In short, any encroachment by the European Union must be subject to a obligatory referendum in order to provide this transfer with a constitutional basis. In fact, the Bundesrat has no idea of the EU’s current and future competences in relation to the cantons.
Lausanne, tribunal fédéral/ Bundesgericht
The European Union and Switzerland
This does not mean that the core tasks of the European Union, as originally conceived, have failed. On the contrary, but it has become a kind of out-of-control and unreformable bureaucratic and political perpetual motion machine with (too) many members who have little or no connection to each other. ‘Zämme’ (together) in Europe (as understood in the canton of Basel-Stadt) exists mainly on paper and stands above all for activism and ideology, not for facts.
In any case, constitutionally, the sovereign (the people) and, in this case, also the cantons must decide on this agreement, which may bring short-term economic benefits but is a convenient path to a de facto EU membership for Switzerland. And it is just the beginning of a hazardous process.
The ETH in Zurich
In the fields of science and research, Switzerland also plays a prominent role, and fear of new (illegal) sanctions is a poor long-term advisor. The EU program Horizon has a lot of money, but that says little about quality, integrity, and (political) corruption. The euro is also subsidised with thousands of billions (illegally), but since 2002, it has lost about 40% of its value against the CHF. The EU stands for quantity, Switzerland for quality.
A treaty with the EU cannot be terminated unilaterally, even if it has many foreseeable negative consequences for the country. In that case, the EU will impose enormous sanctions for breach of contract and years of uncertainty for the business community. Moreover, this agreement will set in motion a dynamic that, within 20 years, will lead to the introduction of the euro, the abolition of the Swiss model, and EU membership.
For example, the Netherlands can no longer leave the euro, because the country has already provided approximately 500 billion euros in guarantees and is now subject to a Franco-Italian currency, the ECB and high inflation. The EU has systematically violated its treaty, and not only in this case, with the blessing of the political Court of Justice of the European Union!
The Mont Terri Rock Laboratory
Immigration and the Swiss Constitution
In another area, too, the agreement is not only poorly thought out but also violates the Constitution:
Art. 121 a (1): Switzerland independently controls the immigration of foreigners.
Art. 121 a (2): The number of permits for the stay of foreigners in Switzerland is limited by annual maximum numbers and quotas. The right to permanent residence, family reunification, and social benefits can be restricted.
Art. 121 a (4): No international treaties may be concluded that violate this article.
The agreement with the European Union, an international organisation, blatantly ignores the constitution here as well. Swiss immigration policy is being abolished, as EU citizens receive permanent residence permits after 5 years, including family reunification and social benefits. Even the EU member Denmark supported an opt-out clause in the failed EU immigration policy, but Switzerland did not.
The agreement ignores the fact that millions of migrants/refugees in EU countries, not only in Germany, have very easily obtained a passport and thus also have access to Switzerland. Spain, for example, grants 500,000 illegal immigrants a permanent residence permit without further checks.
The requirement for an “employment contract” for the residence permit is meaningless, as family, friends, and clan structures can easily provide a job at many (obscure) companies. Loyalty often lies not with the country and its government but with family, friends, and clans. In dictatorships, it is a survival strategy: “If you don’t steal from the state, you steal from the family.” That was the case under communism and remains the case in many countries of emigration today.
In the Netherlands, for example, fraud with child benefits and other social benefits is commonplace because 1) the situation in the countries of origin is hardly controllable, and 2) the European Court of Human Rights has prohibited control by country because this would be “ethnic profiling.”
Moreover, it is not for the Swiss authorities or the court, but for the Court of Justice of the European Union, to decide what constitutes an employment contract. And this court is very flexible, not to mention the also generous European Court of Human Rights in Strasbourg.
An automatic right of residence after five years will result in large, permanent “immigration.” And these are not the traditional expats, who never bring their parents and other family members and usually leave after a few years.
Due to EU regulations, the Swiss government must also grant criminally convicted persons from EU countries a temporary residence permit and, after five years, a permanent residence permit. The many closed restaurants, hotels and other establishments in the country also offer criminals opportunities to settle in Switzerland as entrepreneurs and thus obtain a permit, including employment contracts for family, friends and other clan members without further screening. Who is sovereign in matters of immigration, Brussels or the cantons and the federal government?
Geneva, 22 September 2022, a facultative referendum takes place
Direct Democracy and the European Union
It is also nonsense to claim that direct democracy is not affected by this agreement. In the Netherlands, one of the founding states of the EU, even the parliament and political parties often have no idea what is being prepared in Brussels, or they are informed too late or incompletely.
Moreover, the Netherlands is regularly outvoted, even on important issues, by (bankrupt) countries (e.g., fisheries, immigration, the euro, state aid, subsidies, climate—due to EU regulations, there is effectively a construction freeze, a bad omen also for densely populated Switzerland. The European Commission has also initiated proceedings against the Netherlands because of the monopoly of the relatively well-functioning Dutch Railways (SBB and Salines AG are warned!).
Swiss citizens already often have difficulties with the frequency and technical questions in national referendums, let alone the people, energy, and experts needed for referendums on EU legislation! In addition, the European Commission can even punish the people if they dare to say “no.” Who is the sovereign in the new agreement?
Verkehrshaus der Schweiz, Luzern
Conclusion
Apart from other points of discussion (e.g., electricity, wage protection), there are even more open questions and unwanted surprises in the long term. However, it seems that institutional cooperation with an international organisation must be pursued at all costs, regardless of the far-reaching consequences. For this reason, the cantons are being ignored.
This should not be surprising when one sees how a member of the Federal Council answers a question about EU accession with “Why not?” or how another member stands out for selfies, self-promotion, legal incompetence, and activism.
Treaties with the EU are necessary, but this treaty is simply not good enough and poses a threat to Switzerland’s existence and its successful model. The EU is not a safe haven for Switzerland but an organisation with many contradictions, protectionism, instability, and “pacta non sunt servanda.”
And yes, the European Union is, in many ways, an important, meaningful, and significant organisation and partner for Switzerland. But the Swiss (social, monetary, political, democratic, economic, administrative) model is incompatible with this organisation and all other EU members, where citizens are only allowed to vote every few years and “that’s it.”
In various areas, constitutional amendments must be made if the agreement is adopted, for example, that the highest legislative and judicial power in a multitude of (even now unforeseeable) areas lies in Brussels and Luxembourg, that not the people but the European Commission is the sovereign, that the EU determines Swiss immigration policy, and that Art. 84 of the Constitution (Alpine Initiative) has also been ignored by the EU since 1994, despite new tunnels and billions in investments.
Art. 84 A:
Transalpine freight transit from border to border takes place by rail. The Federal Council takes the necessary measures. Exceptions are permitted only if unavoidable. They must be specified in more detail by law. The capacity of transit roads in the Alpine region may not be increased. Exempt from this restriction are bypass roads that relieve localities from through traffic.
This treaty harasses direct democracy. If the people and the cantons accept this agreement, it is a decision in accordance with the Swiss Constitution. But a mandatory referendum is required for this treaty. So far, however, the discussion has all the hallmarks of a coup d’état à la Suisse.
