Schweizerisches BundesgerichtStellungnahme über mögliche Formen der Umsetzung und Anwendung der Bilateralen Abkommen

2.29 Schweizerisches Bundesgericht, Stellungnahme über mögliche Formen der Umsetzung und Anwendung der Bilateralen Abkommen, erstattet an den schweizerischen Bundesrat vom 29. Juni 2011 p. 1-4  

[Swiss Federal Tribunal, advisory opinion in form of a letter to the Swiss government on possible forms of transformation and application of Bilateral Treaties]

a) Background

The Federal Council invited the Swiss Federal Tribunal to participate in an exchange of ideas on the topic of introducing institutional elements to provide for a necessary formalisation of the application of the bilateral agreements between Switzerland and the EU. The answers of the Federal Tribunal were aimed at helping the Federal Council to meet the requirements of the document Conclusions on EU relations with EFTA countries, Council of the EU of December 14th 2010, 17423/1/10 Ref. 1, paragraph 42.  Within the separation of powers in Switzerland, the Swiss Federal Tribunal participates in various forms in the formation and the administration of the Swiss legal system by a central committee called the Verwaltungskommission.

The text at hand is a letter and policy paper of this committee to the Federal Council dated 29th June 2011, preparing an exchange of opinions planned between the Federal Council and the Federal Tribunal on the mechanism of interpretation of bilateral agreements between Switzerland and the EU

b) Summary

The Federal Tribunal states its basic attitude that the court is the supreme organ of the administration of justice in Switzerland and not a political organ. The statement, therefore, is a text reflecting and adhering to this constitutional division of work. The constitutional task of the Federal Tribunal is to provide a unity of law and its decisions in Switzerland, which applies to international relations as well. Therefore it is the Federal Tribunal’s task to enforce the bilateral agreements between the EU and Switzerland. As a separate and independent task of the Federal Tribunal, it coordinates its jurisprudence independently with the jurisprudence of the EU.

With respect to a unitary interpretation and application of the bilateral treaty following its traditional jurisprudence, the Federal Tribunal follows the existing jurisprudence of the European Court of Justice as far as possible. The Court autonomously establishes a parallel legal situation and, thereby, also recognises the taking into account of the jurisprudence of the European Court of Justice. The mechanism of interpretation would be more efficient if this would be stipulated expressly in the bilateral agreements. A preliminary decision proceeding (Vorlageverfahren) of the Federal Tribunal to the European Court of Justice for decisions regarding bilateral agreements is not possible without basic changes in law. According to the court, this is not necessary. It is conceivable to institutionalise an informal exchange of opinions between the Federal Tribunal and the European Court of Justice. The precondition of the Federal Tribunal to act in any case is an existing basis in the bilateral agreements. The extension of those agreements is a political issue. Regarding the surveillance authority, the Federal Tribunal favours a solution which could bring action for treaty violations to the Federal Tribunal. Analogous to the EU a right for action, liability of government (Staatshaftung) could be filed with the Federal Tribunal of private individuals. According to the letter, the Federal Tribunal considers itself the single and only organ for the review of the application of bilateral agreements within Switzerland; the allocation of  competences to more  than one bench of government should be avoided in Switzerland. Also importantly, the Federal Tribunal is against a solution in which against its decision an appeal could be lodged to the EFTA-Court or to a Court of Arbitration. This would seriously impair the sovereignty of administration of justice in the area of bilateral treaties of the Federal Tribunal in Switzerland.

c) Text

You can find a scan (PDF) of the original text here:
E_2.29_SCHWEIZEREISCHES Bundesgericht

 

© Prof. Jens Drolshammer, office@drolshammer.com,  www.drolshammer.net

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