Bilateral III: Implications for Democracy and Federalism
What consequences would the planned agreements with the European Union have for democratic and federal participation in Switzerland? A new study by the Center for Democracy Studies in Aarau examines the effects of dynamic adoption of EU law on Parliament, the consultation process, popular rights, and cantonal participation.
At the heart of this study is a question that has so far been addressed only marginally in the political debate on Bilateral Agreements III: What does the new package of agreements between Switzerland and the EU mean in political practice for democracy and federalism in Switzerland?
The Federal Council takes the position that democracy, political rights, and federalism are formally preserved under the Bilateral Agreements III. The Federal Office of Justice had previously reached a similar conclusion. The ZDA study examines this issue in depth, analyzing not only the formal legal situation but also possible substantive shifts—that is, changes in the practical effectiveness of democratic and federal participatory rights.
The study concludes that many democratic and federal opportunities for participation remain in place in formal terms. In substantive terms, however, they may lose significance because key substantive decisions are increasingly being prepared or made within the European legislative process. With regard to Parliament, the study also notes a loss of influence on legislation even in formal terms.
According to the study, five areas are particularly affected:
1. Parliament is losing its influence over the legislative process. Although the Federal Assembly has rights to information and consultation, its influence during the drafting phase of new legislation is significantly limited because the substance of the legislation is largely determined within the European legislative process. Switzerland’s involvement is primarily limited to “decision shaping.” The Federal Council and the Federal Administration take the lead in this process, and the opportunities for parliamentary participation are not binding.
2. Direct democracy remains in place in form, but is coming under pressure in substance. Referendums remain possible. However, they are subject to the obligation under international law to adopt relevant EU legal acts that fall within the scope of the agreements. If a referendum is rejected, the EU may take compensatory measures. As a result, voters’ freedom of choice remains formally intact but is substantively influenced. The popular initiative remains formally intact. However, its practical effectiveness is likely to diminish in certain cases if conflicts arise with bilateral obligations. The potential for conflict with the bilateral agreements is likely to increase over time.
3. The consultation process loses its significance if it takes place too late. The consultation process remains formally in place. However, its practical impact depends heavily on the timing. A consultation prior to the granting of a negotiating mandate is possible but not mandatory. If it takes place only after an EU legal act has been drafted, key elements have already been determined, and the participation of interested parties is correspondingly limited.
4. Political influence is shifting. As legislative authority shifts to the European level, attempts to influence national actors—particularly parliament—are losing their impact. Access to the federal administration and to European networks is becoming more important. Actors such as trade associations with greater resources and established networks are likely to benefit from this more than interest groups with a stronger national focus and fewer resources.
5. Cantonal participation continues, but it does not apply equally to all cantons. Cantonal participation is also losing ground. While the cantons still have opportunities to participate—particularly when their areas of responsibility are affected—their actual ability to exert influence depends on whether they are involved at an early stage and have sufficient resources to represent their interests at the European level. Cantons with greater resources are likely to be better able to do so than those with fewer resources.
Proposals for Accompanying Democratic Measures
The authors identify seven supporting measures designed to mitigate or partially offset the shifts that have been observed at the national level. These measures relate to parliamentary participation, institutional competence regarding European affairs, the consultation process, political rights, and public information.
Download Study
Contact
Dr. iur. des. Martina Stirnimann
Co-author of the study on democracy, University of Zurich
martina.stirnimann@zda.uzh.ch
Prof. Andreas Glaser
Co-author of the study on democracy, Center for Democracy Studies Aarau
andreas.glaser@ius.uzh.ch
Claudio Kuster
Board of Trustees, Foundation for Direct Democracy
claudio.kuster@shinternet.ch
Daniel Graf
Board of Trustees, Foundation for Direct Democracy
+41 76 588 09 68
daniel.graf@demokratie.ch
About the Center for Democracy Studies Aarau
The Centre for Democracy Studies Aarau is a scientific research centre supported by the University of Zurich, the University of Applied Sciences and Arts Northwestern Switzerland, the Canton of Aargau and the City of Aarau. It conducts basic research and addresses current issues relating to democracy – regionally, in Switzerland and worldwide. www.zdaarau.ch