Swiss accept initiative to “Stop Mass Immigration”: Legal Implications (Part II)

Switzerland’s political system is shaped around direct democratic participation: Four Sundays a year, Swiss citizens, 18 years or older, get to voice their opinion on constitutional amendments and revisions of federal laws. The Ne Plus Ultra of this participative democracy is the “Popular initiative requesting a partial revision of the Federal Constitution in specific terms” (Art. 139 Federal Constitution of the Swiss Confederation): An amendment to the text of the Constitution, drafted, prepared and voted on by the Swiss people. Amendments to the constitution come into force on the day of their “adoption by the People and the cantons” (Art. 15 par. 3 Federal Act on Political Rights).

On Sunday, 9^th February, the Popular Initiative “Against Mass Immigration” (Mass Immigration Initiative) was adopted by 50.34% of the Swiss People and by 14.5 of the 23 canton votes (for historic reasons some Cantons merely have half a vote, cf. Art. 142 Federal Constitution). The initiative introduced Arts. 121a and 197 No 9 into the constitution, which now await implementation.

This text, the second of three posts on this matter, will focus on the implications of the Swiss vote for the bilateral relations between the European Union and Switzerland. For a more detailed introduction to the history and text of the popular initiative see the post of my colleague, Valentin Jeutner. The third post considers the wider consequences of the referendum for future referendums in Switzerland.

I. Undoing the Free Movement of Persons – A chain reaction

In brief, the new provisions request that all permits relating to foreign nationals, including asylum seekers, must be regulated by quotas (Art. 121a par. 2). Further, any international treaties opposing Art. 121a are to be renegotiated and adapted (Art. 197 No 9 par. 1). The implementing legislation must enter into effect within three years (Art. 197 No 9 par. 2). For an English translation of the new provisions, consult the first of the three posts on this matter.

With respect to the bilateral relations between Switzerland and the European Union, the implementation of the initiative will cause a chain reaction, culminating in a possible exclusion of Switzerland from the EU’s internal market. The links of the chain are: (1) Switzerland enacts legislation to limit immigration into Switzerland. (2) In relation to citizens of EU and EFTA member states, Switzerland breaches the 1999 Agreement on Free Movement of Persons (the ‘FMPA’). (3) The FMPA is re-negotiated, or either side notifies the other of a termination of the FMPA. (4) Six months after termination of the FMPA, the other six agreements of the “Bilateral I” package, negotiated in 1999, expire automatically. (5) Switzerland cannot participate in the EU’s internal market.

First, implementation of the new constitutional text is inevitable. Formalistic solutions – e.g. dynamic, or inexhaustible quotas – go against the principles of the Swiss political system: a system built on, and respected for, compromise and consensus. Also, the narrow margin of just 19’526 votes by which the supporters of the initiative prevailed over their opponents, is no longer relevant; respecting the outcome of each vote means respecting the direct-democratic instruments as such.

Second, any limitation on the immigration of EU/EFTA-citizens contradicts the substance of the Free Movement of Persons Agreement. Any new limitation regime against citizens of EU and EFTA member states would violate a series of provisions of the FMPA, starting with the objectives provided for in Art. 1, the non-discrimination principle of Art. 2, as well as most provisions of Annex 1.

Third, however, violating the agreement does not necessarily entail termination of the agreement. The future of Swiss-EU relations hinges on the European Union’s willingness to negotiate yet another special treatment regime with Switzerland; or, vice versa, on Switzerland’s willingness to deviate from a strict interpretation of the new constitutional provisions. The likeliness of the different scenarios is discussed in section III of this article, where political and diplomatic considerations are addressed. Legally, however, the European Union is well within its rights to terminate the agreement, based on Art. 25(2) FMPA, in case of a Swiss violation of the agreement.

The fourth and fifth links of the implementation chain would result in Switzerland’s exclusion from the European Union’s internal market. The seven “Bilateral I” agreements were architecturally interlinked to avoid “cherry-picking” by Switzerland. The mass immigration initiative proposes just that: to simply discard the free movement of people, without addressing the other agreements.

II. Different Scenarios for Switzerland’s Relationship with the EU

There are two possible outcomes: Switzerland will remain in the EU’s internal market, or restrictions to the economic integration of Switzerland into the EU will apply. It seems obvious that both parties would prefer the first outcome: Switzerland, because it is economically dependent on the EU; and the EU, because it is wary of setting a precedent for multi-speed integration or for special treatment of some European countries.

Switzerland can remain in the internal market in several scenarios: (1) Switzerland becomes a member of the EU. (2) Switzerland and the EU re-negotiate the FMPA, allowing unilateral restrictions. (3) A new foundation is laid for the Swiss-EU relationship.

That Switzerland becomes a member of the European Union is not a promising option, because it would once more necessitate a popular vote. In the current political climate and against the background of the most recent vote, a majority for Swiss accession to the EU seems unlikely.

Second, Switzerland can re-negotiate the bilateral agreements. This scenario depends on the EU’s willingness for concessions, which I estimate to be limited. Swiss politicians and diplomats would have to convince the EU to accept limitations on the free movement of people. This policy, however, is one of the core freedoms of the internal market, which in turn is one of the pillars of the EU. Therefore, immigration legislation seems an unlikely area for EU concessions.

The third option, is self-referential, insofar as the “Bilateral Path” already is such a third option. In 1992, Swiss voters rejected accession to the European Economic Area (EEA), thus launching the negotiations for what would become the “Bilateral I” agreements signed in 1999. The possibilities for another compromise are limited, but they exist. Switzerland and the EU are preparing to negotiate an agreement on “institutional issues“. The Federal Council adopted the negotiating mandate in December 2013. This agreement was expected to cover the adoption of EU legislation into Swiss laws and to institute a more institutionalized dispute settlement process, possibly involving the European Court of Justice (ECJ). The EU is yet to adopt a negotiating mandate; the process of which will indicate the likelihood of EU concessions.

III. A Legalistic Way Out? Switzerland’s Lack of Constitutional Review

There is another way out, if all else fails: Art. 190 of the Federal Constitution. This provision determines that federal acts and international law are binding for the Federal Supreme Court. Most importantly, Art. 190 fails to denominate the constitution as equally binding – a deliberate choice against constitutional review on a federal level. What are the implications of this article?

If Switzerland violates the Free Movement of Persons Agreement, but neither party terminates the agreement, it will remain in force as an act of international law. The agreement will thus remain applicable, despite conflicting Swiss constitutional provisions. If the Federal Assembly passes a law contradicting the Free Movement of Persons Agreement, the Federal Supreme Court might have to examine which takes precedence: The federal act or the international treaty. If recent case law is any indication, the court would most likely determine the national law to be inapplicable, and instead apply the bilateral agreement.

This legalistic way out would allow both sides to pretend that nothing changed. The foreign nationals actually affected by the implementation of the Mass Immigration Initiative would be protected in their rights as provided by the FMPA, whereas Swiss politicians could enact a law respecting the “Will of the People”.

However, this solution would be a bad one: It would court Swiss voters’ resentment against the EU – made apparent once more on 9^th February 2014 – and possibly lay the ground for potentially more harmful new proposals.

IV. Outlook

The Federal Assembly and the Federal Council tasked with translating the initiative into law need to demonstrate their capability and professionalism now. The process of implementing the initiative will prove to be one of the hardest political tasks in recent memory.

Whichever path the Federal Council and the Federal Assembly decide to pursue, a lot depends on the EU’s good will. The Mass Immigration Initiative was framed as a method of re-gaining independence in international relations. If serious economic damage for Switzerland is to be averted, the EU needs to be conciliatory during the implementation process. The situation that Swiss interests depend upon EU cooperation was assumedly not considered by all supporters of the initiative. The irony of which should make for entertaining politics. If only entertainment was the purpose of politics, and not decision-making in the best interest of a country.