Permafrost is causing the Swiss mountains to collapse. The planned new agreement with the European Union undermines not only direct democracy, trust in institutions, and the sovereignty of the cantons, but also the connecting elements of Switzerland’s successful decentralised, federal model based on subsidiarity. It could hardly be more symbolic. Perhaps nature has a very accurate sense of the political situation in the Confoederatio Helvetica.
Misleading and False Representation of facts
“The mandatory referendum is, for good reason, applied only to a limited extent, precisely in order to protect the voice of the people and the will of the electorate. The Constitution does not provide for this in the case of the Bilaterals.” (www.Bilafacts.ch)
Various lawyers, constitutional law professors, lobbying organisations such as Regio Basiliensis, Economiesuisse and Avenir Suisse, journalists, the Social Democratic Party and other members of parliament share this interpretation of Article 140(b) of the Federal Constitution. The argument is that this does not constitute membership of an international organisation, hence the euphemistic title “Bilaterale III”.
Bilaterale III and Membership
However, this title chosen by the Federal Council is misleading and incorrect. This is an institutional treaty with an international organisation that transfers legislative, judicial and executive powers. In practical and legal terms, therefore, it constitutes membership of an international organisation.
The fact that the EU can take action in the event of a hypothetical referendum rejecting an EU law also points to membership. This is because associations can only impose disciplinary measures on members, and never on non-members. The fact that membership is (for the time being) limited is of no legal significance.
The intended political, bureaucratic, judicial, legislative and executive integration with the EU falls, by its very nature, under Article 140(b). As a rule, proposals that profoundly affect the legal position of citizens or the organisation of the state are subject to a mandatory referendum.
The Term “Membership” in legalhistorical perspective
The fact that the term “membership” deliberately does not appear in this treaty says nothing about its legal classification. In law, the facts must first be established and only then legally classified. In the 21st century, the legislator’s intention and purpose, rather than merely the wording of the law, are central.
Moreover, this constitutional provision, Article 140(b), originated at a time when no international organisation was comparable to today’s European Union. At the time, only a number of international organisations lacked the EU’s extensive judicial, legislative, or executive powers.
Nor could the legislator at the time have foreseen that members of the Federal Council and politicians would deliberately misrepresent the situation in order to achieve their preferred political outcome.
The situation is also reminiscent of the Netherlands. Since 1815, the centrally governed country had not held a referendum, including on the EU. In 2005, it finally held one, and 62% opposed further EU integration. The question concerned whether to approve a European constitution. The referendum was subsequently ignored, and the referendum mechanism was abolished, while politicians merely changed the title of the new treaty to the Treaty of Lisbon. Today, very few people still trust politics, and riots and disturbances are commonplace. Ignoring the majority of the cantons will cause something similar.
A Method of Legal Interpretation from the 19th Century
Bilafacts, Professor Astrid Epiney, apparently a specialist in European and Swiss constitutional law, as well as other politicians, lawyers, journalists and lobbying groups, apply the law using a method of legal interpretation dating from the 19th century. Law and legal interpretation are being turned back by two centuries in order to achieve the politically desired result. Federal Councillor Cassis was at least honest in this respect, although this does not make his misleading presentation any less serious.
Such false representation has meanwhile become familiar from the Justice Minister. Only recently, he stated that the EU’s new migration pact was working and that “the situation in Ceuta was under control”. Nothing could be further from the truth. Women and girls are raped every day, while the inhabitants of Ceuta live under the constant terror of thousands of migrants. This is the Justice Minister’s “normalisation”.
The Migration Pact
In the Netherlands, a judge recently prevented the deportation of migrants to Italy because torture by the government was allegedly commonplace (sic), after previously preventing a deportation to Belgium because of the “inhumane reception of refugees”. So much for the migration pact, yet another failed EU project. Only the often bizarre technocratic laws of an excessively privileged bureaucracy are successfully pushed through: socialism with a human face.
Immigration
“The Bilaterale III, however, contain new residence rights only for a very limited group of people, estimated at fewer than 200. The new permanent residence right, which affects considerably more EU citizens, applies to people who already live in Switzerland and are therefore not immigrants.” (www.Bilafacts.ch)
T
hat, too, is incorrect.
Article 121a(1): Switzerland shall autonomously control the immigration of foreign nationals.
Article 121a(2): The number of residence permits for foreign nationals in Switzerland shall be limited by annual maximum numbers and quotas. Entitlement to permanent residence, family reunification and social benefits may be restricted.
Article 121a(4): No international treaties may be concluded that violate this article.
Here, too, the agreement with the European Union, an international organisation, blatantly disregards the Constitution.
Swiss immigration policy is being abolished, because every EU citizen will receive a permanent residence permit after five years, including rights to family reunification and social benefits. Even EU member Denmark secured an opt-out from the EU’s failed immigration policy, whereas Switzerland did not.
The new treaty not only stands in blatant contradiction to the Federal Constitution. From the moment it enters into force, it will also provide for new immigration, including large families from poorer and newer EU countries, as well as millions of migrants who have easily acquired citizenship in EU countries, rather than only the usual expatriates.
Direct Democracy
It is also nonsense to claim that this agreement will not affect direct democracy. In the Netherlands, one of the EU’s founding states, even 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, including on important issues, by countries that are financially insolvent, for example, on fisheries, immigration, the euro, state aid, subsidies and climate policy. Because of EU regulations, construction is effectively halted, which is also a bad omen for densely populated Switzerland. The European Commission has also initiated proceedings against the Netherlands over the monopoly of the relatively well-functioning Dutch railways. The SBB and Salines AG have been warned!
Swiss citizens already often struggle with the frequency and technical complexity of national referendums. It is even harder to imagine enough people, energy, and expertise available for referendums on EU legislation. On top of this, the European Commission even punishes the people when they dare to vote “No”. Who is sovereign under the new agreement?
Conclusion
The essential elements of membership are present. A majority of the cantons is therefore constitutionally mandatory. Ignoring this amounts to a coup d’état, quite apart from other obvious constitutional violations concerning immigration, cantonal sovereignty and direct democracy.
There is also complete uncertainty regarding the EU’s numerous present and future competences which, in decentralised Switzerland, continue to fall under cantonal sovereignty, for example taxation, nature parks or the monopolistic company Salinas, owned by the 26 cantons.
In short, every transfer of powers to the European Union must be subject to a mandatory referendum to give that transfer a constitutional basis. In fact, the Federal Council has no idea about the EU’s present and future competences vis-à-vis the cantons.
Some even claim that the people could later terminate this treaty unilaterally through a popular initiative. However, a treaty cannot be terminated unilaterally without consequences. Moreover, the EU can already impose sanctions following a referendum on one of many EU laws, let alone what its reaction would be to unilateral termination by the people.
Once it is gone, it is gone, and with it not only direct democracy but also Switzerland’s successful decentralised, federal model based on subsidiarity, innovation and trust. Switzerland will sink to the level of Germany, the Netherlands, Italy or France.
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