Urgency law (Switzerland)

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In the Swiss Confederation , one speaks of urgency law when a federal body ( Federal Assembly or Federal Council ) can provisionally legislate in an accelerated procedure because of temporal urgency before the higher-level body (people or Federal Assembly) can make a final decision.

The Federal Assembly can urgently declare a federal law and put it into effect immediately. The possibility of an optional referendum remains; the suspensive referendum , which usually postpones the enactment, becomes a subsequent (abrogative) referendum in this special case .

The provisional application of a treaty under international law by the Federal Council has the same effect as a declaration of urgency. The treaty is submitted to parliament and, in the case of an optional referendum, to the people for approval retrospectively instead of in advance. The competent commissions of the Federal Parliament can veto the provisional application.

With the consent of the finance delegation of the Federal Parliament, the Federal Council can decide on urgent commitment credits and urgent supplementary credits, which are only subsequently submitted to the Federal Assembly for approval. These financial decisions are based on urgency law that is also applied outside of emergencies. Since emergency ordinances of the Federal Council can in certain situations only be implemented in conjunction with such financial decisions, it is justified to present them in this context (see emergency law ).

Urgent Federal Laws

Legal basis

According to Art. 165 of the Federal Constitution (BV), a federal law “ whose entry into force cannot be postponed ” “can be declared as urgent by the majority of the members of each council and put into effect immediately ”. In the ordinary legislative procedure with its suspensive referendum , a law can come into force four months after its adoption by parliament at the earliest, if the referendum period of 100 days expires without being used. In principle, however, a referendum can always be expected. If this happens and a referendum has to be held, the law can only come into effect ten to twelve months after the parliament has passed the law. With the urgent declaration of a law, the Federal Assembly deviates from the normal democratic order of competencies. This is only permissible if there is an urgency in terms of time and matter. There must be irreparable disadvantages if the law cannot apply immediately. It must also be about issues of legal political importance. These prerequisites are met if prolonged waiting leads to a risk to police goods (security and order) or thwarts the purpose of the law (e.g. urgent cost-saving measures).

The criticism of the doctrine of constitutional law gives rise to the fact that politics tends to accept urgency even if it is merely objective, but not temporal: «The mere necessity of a decree was enough to put it into effect immediately, regardless of the The fact that waiting for the referendum deadline would not have hurt the matter ». Another problem is “that the urgency clause is sometimes intended to slow down the referendum for the time being and to create time for a careful familiarization with a new order or, frankly, to create time for experiments”.

The parliamentary legislative procedure for dealing with urgent federal laws is accelerated by three to four months by being dealt with in the same session by both councils in accordance with Art. 85 Parliamentary Act (ParlG), which is only possible in exceptional cases for non-urgent federal laws.

According to Art. 77 ParlG, the National Council and the Council of States decide on the so-called urgency clause of the law after the differences are settled. To approve this clause, a simple majority of the members of a council taking part in the vote is not sufficient, as is usual , but an absolute majority of the members of the council (101 members of the National Council and 24 members of the Council of States, if no seats are vacant ).

The period of validity of an urgent federal law must be limited in accordance with Art. 165 BV. It is subject to a subsequent (abrogative) referendum if it is to apply for more than a year. If the referendum takes place within 100 days of the official publication of the law and if the law is rejected in a referendum, the law will expire one year after its adoption by the Federal Assembly. This also happens if the required referendum is not held within this one-year period. In these cases, the Federal Assembly may not pass another urgent federal law with the same or similar content.

According to Art. 165 Paragraph 3 BV, the Federal Assembly can also enact an urgent federal law that has no constitutional basis. In this case, the subsequent referendum is of a mandatory nature (ie 50,000 signatures do not have to be collected first in order to hold a referendum) and the approval of the people and the cantons is required.

Whether the right of urgency is to be regarded as an emergency right is controversial in constitutional law. This is supported by the fact that the electorate's competence to participate in legislation is suspended for a period of one year. The big differences between emergency law and urgency law speak against this. The demands on the emergency law in terms of time and factual urgency are massively higher than in the case of urgency law. Emergency law serves to deal with a serious emergency in which immediate action is required; Urgency law does not help in this case because the parliamentary procedure takes a few weeks. If it is possible to wait so long without serious disadvantages or if it is not a serious emergency, resorting to emergency law is not permitted. In these other cases of urgency, the path to be chosen is the declaration of urgency by a federal law. An urgently declared federal law is a formal law deliberated and passed by the democratically legitimized parliament like any other law; the participation of the people takes place retrospectively, but is secured by clear rules.

practice

The retrospective referendum was only introduced with the popular initiative “Return to direct democracy” adopted in the referendum of September 11, 1949 . Before that, urgent federal laws (referred to as “generally binding federal resolutions” until the current federal constitution of 1999 came into force) were not subject to a referendum; until 1939 they did not have to be limited in time. When the Federal Assembly made extensive use of this right of urgency in the interwar period, direct democracy was severely restricted.

Since January 1, 2000, the Federal Assembly has made 30 federal laws urgent (around 5% of all federal laws). These were exclusively federal laws with a constitutional basis. Only one federal law was valid for no more than one year and was therefore not subject to a referendum. A referendum was taken against 2 of the total of 29 urgent federal laws with a period of validity of more than one year; these two referenda were unsuccessful in the referendum and the laws remained in force (as of June 16, 2020).

Examples:

  • In the extraordinary session from 4–6 May 2020 mandated the Federal Council to accept the same motions to submit the draft of a legal basis for the introduction of the Corona-Warning-App (CoronaProximity-Tracing-App) to Parliament. The Federal Council fulfilled this mandate with its dispatch of May 20, 2020. The Federal Parliament adopted the necessary amendment to the Epidemics Act on June 19, 2020 and declared it urgent.
  • On June 17, 2016, the Federal Assembly resolved an urgent amendment to the Health Insurance Act, which allowed the expiry of June 30, 2016 to stop the admission of foreign doctors to be continued. The urgency arose because the conversion of the temporary legal provision into definitive law as part of a more comprehensive revision of the Health Insurance Act on December 18, 2015, was rejected by the National Council in the final vote.
  • In view of the high number of asylum applications, the Federal Assembly decided on September 28, 2012 to urgently amend the Asylum Act and put it into force the following day. Among other things, the prerequisites for the establishment of asylum shelters were eased and a test phase was made possible to accelerate the asylum procedure. The referendum against this change in the law came off with 63,666 signatures. In the referendum on June 9, 2013, the law was passed with 78.4% yes-votes. The validity of the law was limited to September 28, 2015.

Provisional application of international treaties

Legal basis

The Vienna Convention on the Law of Treaties provides in Art. 25 requires that an international treaty can be "applied provisionally pending its entry into force." In Switzerland, the Federal Council is responsible for making statements that are binding under international law. However, domestic law regulates the conditions under which the Bundesrat can exercise this competence under international law.

According to Art. 184 , paragraph 2 of the Federal Constitution (BV) is the Federal Council responsible for the signing and ratification of international treaties . The prerequisite for the ratification and thus the entry into force of a contract is the prior approval of the contract negotiated and signed by the Federal Council with the contracting party. This approval decision is subject to a referendum under certain conditions ( Art. 140 Paragraph 1 Letter b and Art. 141 Paragraph 1 Letter d BV). These approval procedures take time. “ If important Swiss interests are to be safeguarded and if there is particular urgency ,” “the Federal Council may decide or agree on provisional application without the approval of the Federal Assembly” ( Art. 7b (1) Government and Administrative Organization Act RVOG). The competent commissions of the Federal Parliament can veto the provisional application with a concurring resolution ( Art. 152 Para. 3 ter Parliament Act). The provisional application ends if the Federal Council does not submit the draft federal resolution on the approval of the relevant contract to the Federal Assembly within six months of the beginning of provisional application ( Art. 7b para. 2 RVOG).

An analogous commission veto is also provided if the Federal Council urgently wants to terminate a contract, for the termination of which it must obtain the approval of the Federal Assembly and, if necessary, the people ( Art. 7b to RVOG).

practice

The provisional application of international agreements is rarely controversial in practice. In the recent past, however, the following two examples have given rise to criticism and thus led to the further development of the legal basis:

  • On October 18, 2001, the Federal Council signed an “Agreement between the Swiss Confederation and the Federal Republic of Germany on the implementation of air traffic control by the Swiss Confederation over German territory and on the effects of the operation of Zurich Airport on the territory of the Federal Republic of Germany”. The treaty would have resulted in greater noise pollution in the vicinity of Zurich, which aroused opposition in Switzerland (see aircraft noise dispute between Switzerland and Germany ). The treaty was provisionally applied before it was submitted to the Federal Assembly for approval. The Federal Councils rejected the approval, the National Council on June 19, 2002, the Council of States definitely on March 18, 2003. Subsequently, with the amendment of October 8, 2004 to the Government and Administrative Organization Act, the Federal Council was obliged to present the responsible commissions to consult the provisional application of a contract. This consultation was not of a binding nature.
  • In the spring of 2010, the Federal Council decided, contrary to negative opinions from the responsible commissions, to provisionally apply a contract with the USA relating to administrative assistance in the matter of UBS AG. UBS clients with ties to the USA were severely affected by this agreement in their rights. This process was the trigger for the introduction of the possibility of a «commission veto» against provisional application with the amendment to the law of September 26, 2014.

Urgent financial decisions

See the Urgent Financial Resolutions section in the Emergency Law article.

literature

  • Peter Buss: The right of urgency in the federal government. An investigation into the urgent federal resolution under BV 89bis and the urgency practice of the federal assembly during the years 1960–1980. Basel 1982
  • Thomas Gächter: Democracy and Urgency. Thoughts on the history and application of the urgency law of the Swiss federal constitution. In: Reflecting on the Democratic State and its History. Contributions for Alfred Kölz. Zurich / Basel / Geneva 2003, Schulthess Verlag, ISBN 3-7255-4555-3 , pp. 75-104.
  • Martin Graf: The provisional application of international treaties between constitutional principles and “consideration for the demands of reality”. In: Swiss Central Gazette for Constitutional and Administrative Law. 2015, No. 9, pp. 455–469.
  • Jörg P. Müller: Use and abuse of the right of urgency. Bern 1977, Paul Haupt publishing house, ISBN 3-258-02690-4
  • Urs Saxer / Patrick Sutter: The advance application of international treaties by the Federal Council: urgency, rule of law and democracy. In: General Legal Practice. 2003, issue 12, pp. 1406-1420
  • Pierre Tschannen: Art. 165. In: The Swiss Federal Constitution. St. Gallen commentary. Dike Verlag, Zurich / St. Gallen 2014, Schulthess Legal Media, Zurich / Basel / Geneva, 3rd edition 2014, Volume 2, ISBN 978-3-03751-606-5 and ISBN 978-3-7255-6698-3 , pp. 2693-2701

Web links

Individual evidence

  1. ↑ Pierre Tschannen: Art. 165 . In: The Swiss Federal Constitution. St. Gallen commentary . 3. Edition. tape 2 . Zurich / St. Gallen, S. 2696 .
  2. ↑ Peter Buss: The right of urgency in the federal government. An investigation into the urgent federal resolution under BV 89bis and the urgency practice of the federal assembly during the years 1960-1980 . Basel 1982, p. 61 .
  3. ↑ Jörg P. Müller: Use and abuse of the right of urgency . Bern 1977, p. 21 .
  4. ↑ Cornelia Theler: Art. 85 . In: Martin Graf / Cornelia Theler / Moritz von Wyss (eds.): Parliamentary law and parliamentary practice of the Swiss Federal Assembly. Commentary on the Parliament Act (ParlG) of December 13, 2002 . Basel 2014, p. 637-639 .
  5. ↑ Ralph Trümpler: Notrecht. A taxonomy of manifestations and an analysis of the intra-constitutional emergency law de lege lata e de lege ferenda . Zurich / Basel / Geneva 2012, p. 112-119 .
  6. ↑ Pierre Tschannen: Art. 165 . In: The Swiss Federal Constitution. St. Gallen commentary. 3. Edition. tape 2 . Zurich / St. Gallen 2014, p. 2694 .
  7. ↑ Parliamentary Services : Enactments according to form (statistics). Retrieved June 22, 2020 .
  8. ^ Federal Chancellery: Overview of urgent federal decisions and laws. Retrieved June 22, 2020 .
  9. ↑ Swiss Federal Assembly: 20.040 Urgent amendment to the Epidemics Act in view of the COVID-19 crisis (proximity tracing system). In: Curiavista Business Database. Retrieved June 22, 2020 .
  10. ↑ Swiss Federal Assembly: 16.401 Parliamentary Initiative. Extension of the validity of Article 55a KVG. In: Curiavista Business Database. Retrieved June 22, 2020 .
  11. ↑ Swiss Federal Assembly: 10.052 Asylum Act. Modification. In: Curiavista Business Database. Retrieved June 22, 2020 .
  12. ↑ Federal Chancellery: Overview of optional referenda 2011-2020. Retrieved June 22, 2020 .
  13. ↑ Swiss Federal Assembly: 02.027 Air traffic control over German territory. Agreement with the Federal Republic of Germany. In: Curiavista Business Database. Retrieved June 22, 2020 .
  14. ↑ Swiss Federal Assembly: 03.459 Parliamentary Initiative. Provisional application of international treaties. In: Curiavista Business Database. Retrieved June 22, 2020 .
  15. ^ Giovanni Biaggini: BV. Comment . 2nd Edition. Zurich 2017, p. 1264 .
  16. ↑ Swiss Federal Assembly: 12,069 competence to conclude international treaties. Provisional application and contracts of limited scope. In: Curiavista Business Database. Retrieved June 22, 2020 .