Schubert practice
The Schubert practice is an exception to the primacy of international law over Swiss federal law introduced by the Swiss Federal Supreme Court in 1973 .
The starting point for the Schubert judgment (BGE 99 Ib 39) was that an Austrian citizen, Ernst Schubert, wanted to buy property in Ticino and this was prohibited by the Ticino authorities. The Ticino authorities applied a generally binding federal decree from 1970, according to which every such acquisition is subject to a license requirement. Schubert, in turn, relied on a treaty from 1875 between Switzerland and the Austro-Hungarian monarchy , according to which the law of equal treatment for nationals applies to him. Art. 2 of this contract of 1875 reads:
« With regard to the acquisition, possession and sale of real estate and land of all kinds, as well as the disposal of the same and the payment of duties, taxes and fees for such dispositions, the relatives of each of the contracting parties in the territory of the other shall exercise the rights of Residents enjoy. »
In the Schubert judgment of March 2, 1973, the Federal Supreme Court established the following principle: If a (more recent) federal law contradicts an (older) state treaty and the legislature has expressly accepted the contradiction between the state treaty and domestic norm, the federal court should Bound by federal law.
This jurisprudence made the acquisition of the property by the Austrian citizen Schubert impossible and the State Treaty Switzerland - Austria of 1875 in Switzerland, without consultation or agreement with the other contracting party (Austria), partially suspended (Switzerland's violation of the legal principle: Pacta sunt servanda ).
In response to this decision of the Swiss Federal Assembly and the judgment of the Swiss Federal Court, the Federal Chancellor of the Republic of Austria issued a declaration of May 26, 1975 "regarding the non-continued application of Art 2 of the agreement between the Republic of Austria and the Swiss Confederation on the regulation of the settlement relationships, Exemption from military service and military taxes, equal taxation of both nationals, mutual free meals in the event of illness and accidents and mutual free communication of official extracts from the birth, marriage and death registers of December 7, 1875 » (ÖBGBl. No. 298 / 1975).
With this announcement, Art. 2 of the Austrian-Swiss Settlement Agreement "on the basis of generally recognized rules of international law (Art 9 of the Federal Constitutional Law in the version of 1929) until revoked" was declared no longer applicable by the Austrian Federal Government (see: Sanctions Law in international law and the principle of talion ).
See also
- ^ Anne Peters, Isabella Pagotto: The relationship between international law and national law in Switzerland. ( Memento of the original from March 25, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. In: ius.full. No. 2/2004 (archived on the University of Basel website; PDF; 3.2 MB).
- ^ «State treaty between the Austro-Hungarian monarchy and Switzerland of December 7th, 1875, regulating the settlement conditions, exemption from military service and military taxes, equal taxation of the citizens of both sides in the territory of the other contracting party, mutual free food for the sick or poor accidental nationals and mutual free communication of official extracts from the birth, marriage and death registers » (ÖRGBl. No. 70/1876) ( online ). This contract was declared applicable by the contract of May 25, 1925 (ÖBGBl. No. 55/1926) between the Republic of Austria and the Swiss Confederation. According to the agreement between the Austrian and Swiss governments, this contract continued to apply. The Republic of Austria has entered into this contract between the Swiss Confederation and the Austro-Hungarian Monarchy as the legal successor to the Dual Monarchy . This contract from 1875 was expanded by the agreement between the Austrian Federal Government and the Swiss Federal Council, regarding additional agreements on the settlement conditions of both citizens (ÖBGBl. No. 204/1951).
- ^ Article 2 of the State Treaty between the Austro-Hungarian Monarchy and Switzerland . Retrieved October 24, 2019.
