After World War II, the main purpose of international treaties was no longer to define geographic borders or regulate peace negotiations, but rather to institutionalize international organizations. These newly created multilateral bodies quickly became a locus producing, coordinating and interpreting international norms. Such international fora have become a privileged location for discussing and regulating a growing number of important policy issues, while also benefiting from the participation of each state. The development of international law takes different shapes and forms which include international treaties, recommendations, guidelines and other soft law instruments (see Flückiger in this volume). This results in a sharp increase of norms and actors in the field of public international law. These norms can have an effect on the activities of states, their administrations and even on the legal situation of private individuals, if treaties include directly applicable provisions (Mader 2013: 247).

Such developments have been taken into account in Swiss constitutional law, particularly in the 1999 complete revision of the Swiss constitution which included a number of new provisions related to international law (Haller 2016: 37). As noted, the Confederation and the cantons 'respect international law' (Art 5 (4) Const.) (Aubert and Mahon 2003: 48 et seq). The Confederation is 'committed…to a just and peaceful international order' (Art. 2 (4) Const). Mandatory provisions of international law also must not be violated when changing the constitution (Art. 193 (4) and Art. 194 (2) Const.). The federal Supreme Court and other judicial authorities 'apply federal acts and international law' (Art. 190 Const.). All these provisions express Switzerland's strong commitment towards international law.

Moreover, the number of texts in force for international law is higher than for domestic law (Federal Council 2016a). Switzerland signed and ratified 121 Council of Europe conventions (Federal Council 2016a: 6828). Switzerland, however, chose not to become a member of the EU, opting instead for a 'bilateral path' (Maiani and Bieber 2016; Maiani 2013) involving numerous individual agreements with the EU which cover a wide array of issues and policies. In that context as well, European law is pervasive and very evident in Swiss law (Maiani 2013).

#### *6.2.2 The Development of Direct Democracy*

Direct democracy is one of the hallmarks of the Swiss legal and political system. It allows Swiss citizens to participate in the lawmaking process as well as in revising the constitution. This can be done either to encourage political action (popular initiative) or to alter political actions already taken (via referendum). (Art. 138 to 142 Const.). Also referred to as 'popular rights', the mechanisms of direct democracy exist at communal, cantonal and federal levels. Historically, they emerged first at the cantonal level and were only gradually established at the federal level to complement the system of representative democracy. Switzerland has gradually increased the use of referenda, thereby compensating for the reduced possibility of popular participation in decision-making processes at the international level (Hertig Randall 2016: 166). Changes introduced in 1999 and 2003 gave parliament a right to participate when international treaties were concluded (Federal Council 1997: 231), and popular rights were modified. Democratic participation in international treaties was thereby brought into line with participation in national legislation (Federal Council 2001: 5795).

To date, while the right to launch an initiative is limited to domestic matters (e.g., it can be used only for the adoption of norms on the constitutional level), referenda can—and in some cases must—be held about international matters such as treaties (optional referendum for specified kinds of treaties) or joining a supranational community (mandatory referendum) (Art. 140 and 141).

# 6.3 The Role of the Federal Administration in the Accession to International Treaties

The UN's Vienna Convention on the Law of Treaties (23 May 1969) sets out the accession procedure to international law for states. When acceding to a Convention, a state either adheres outright to the treaty, thereby indicating it will commit to it, or signs the treaty, pending internal examination. It will then later ratify it. The Vienna Convention leaves it to each state to determine domestically which organs are given the competency to participate on behalf of the government.

Switzerland has a signature phase and a ratification phase (Art. 184 (2) Const.), but the procedure it adopts, and the internal actors involved, can vary according to whether the treaty is bilateral or multilateral.

#### *6.3.1 Signature*

The Federal Council is responsible for foreign relations (Art. 184 (1) Const.) and represents Switzerland abroad (Art. 54 (1) Const.). It has the general competence to sign and ratify international treaties (Art. 184 (2) Const.). In some instances, the treaties must be submitted to the Federal Assembly for approval before ratification. The Federal Council can also delegate the concluding of a treaty to a relevant department or office—of the federal administration (Art. 48a GAOA). If an international negotiation is launched, a negotiating mandate is issued by the Federal Council. The negotiating minister must then consult the parliamentary committees responsible for foreign relations, allowing the negotiator to establish the main outlines and directives of the mandate (Art. 152 (3) Federal Act on the Federal Assembly).

In practice, the procedure combines legal rules and certain processes, providing a guide for public action, though the Federal Council must play a nuanced role. The cantons can themselves play an active role internationally by being associated with a foreign policy decision by the national executive (Art. 55 (3) Const.), and even conclude international treaties in matters falling within their competences. Nevertheless, cantons must act in such a way to ensure the coherence of the Swiss external policy. Their international commitments cannot be contrary to the interests of the Confederation: therefore, prior to the conclusion of a treaty, the federal authority must be informed (Art. 56 Const.; Art. 61c and 62 GAOA; Art. 27o and 27 t of the Ordinance on Government and Administration Organization). If the Federal Council was to consider this cantonal engagement to be against the nation's interests, the Federal Assembly is notified (Art. 186 (3) Const.). The latter shall then give its approval to the convention (Art. 172 para. 3 Const.; Haller 2016: 250; Ziegler 2015: 88). Furthermore, if a field of cantonal competence is covered by the new international norm, cantons may also take part in the negotiation (Art. 55 Const.; Federal Act on the Consultation Procedure). The impetus to the signature of an international treaty can thus come from the Federal Council itself, from the Federal Assembly, or from a canton (Federal Department of Foreign Affairs 2015: 9).

That being said, the proposal to sign generally comes from the Department of Foreign Affairs and, in some cases, other federal departments when the treaty in question falls within their competence (Federal Department of Foreign Affairs 2015: 9). Furthermore, prior to the signature, a collaborative process takes place during which there are many exchanges between the Federal Council, the Federal Assembly and the cantons (and sometimes social and professional organizations) under the aegis of the federal administration. The Department of Foreign Affairs, in particular, early on played the role of general guardian of the development of international law ('juridical conscience'). This role has been remarkable in the treaties adopted within the Council of Europe, and according to Art. 3 of the Statute of the Council of Europe, Switzerland agreed to 'collaborate sincerely and effectively' in the realization of the organization's goals. Accordingly, the Federal Administration follows the Council of Europe's work closely, and, since 1976, a yearly report on 'Switzerland and the Council of Europe's Conventions' have been published. This document provides the reasons why Switzerland should or should not adhere to Conventions elaborated within the Council of Europe. The report is drafted by the offices in the federal administration and then submitted to the Federal Assembly via a preliminary report provided by the Federal Council.

The Federal Council, supported by the federal administration must base its proposal on measurable elements defined in 1969 (Federal Council 2016a: 6829). Switzerland's international commitment is based on the idea that the state can comply with its engagements, all the more necessary as respecting international law is a principle of Swiss law (Art. 5 (4) Const.). As a consequence, determining whether Switzerland will or will not be able to respect its new international commitment is central, and every ratification project should be analysed in terms of its usefulness and necessity from the point of view of the national interest or of the efficiency of cooperation with other state parties. Moreover, only conventions whose ratification is feasible within a reasonable time are suggested.

Furthermore, Article 147 of the Swiss Constitution requires a consultation procedure, with all actors involved, which is coordinated by the Federal Council. Its aim is to test whether the project is correct, executable, and whether it would likely be accepted (Art. 2 Consultation Procedure Act). The consultation procedure is really a key moment for the federal administration, as it gives public administrators an opportunity to point out any fundamental incompatibility between a convention and the domestic legal order. Once the comments and responses have been received, a procedure to iron out the differences is launched, both at the executive and at lower administrative levels. Nevertheless, the current ratification practice makes it possible to submit conventions which are not in line with domestic law to the Federal Assembly for approval. This is notably the case when existing gaps in Swiss law could be filled by directly applicable provisions contained in the treaty. Otherwise, parliamentary approval might be solicited when accompanying legislative measures can be adopted in sufficient time (Federal Council 2016a, b: 6829).

From a procedural point of view, consultation can occur before signature or during the parliamentary phase afterwards (Federal Department of Foreign Affairs 2015: 47). In practice, it usually takes place during the pre-parliamentary phase (see the chapter by Guy-Ecabert in this volume). The actors usually have a three-month period in which they can draft an answer, and cantons, political parties and civil society actors take part, sometimes quite extensively so.

Thus, the signature of a treaty by the Federal Council is part of a much larger political process, much more extensive than the simple signature of a document by a public authority. The procedure shows the implication of different political actors, allowing the Federal Council to evaluate the political support to a treaty. It can reinforce national commitment to a new adhesion and thereby avoid opposition once the international rules are 'incorporated' in the domestic legal order. Such a procedure 'a priori' can thus attempt to limit the chances of a referendum that may arise later.

#### *6.3.2 Ratification*

The second phase is ratification. The main actors are the Federal Assembly, the people and the cantons. Their intervention formally confirms (or overturns) the Federal Council's proposition. It takes its final form with the adoption of a federal decree.

This phase begins with the Federal Assembly's intervention, as it must give its approval to ratification (Ziegler 2015: 90) in the case where the Federal Council has not an exclusive competence (Art. 166 (2) Const.; Art. 24 (2) Parliament Act). To allow the parliament to reach a decision, a document describing the reasons why Switzerland should ratify the treaty in question is drafted by the relevant federal department. This 'federal message' is received by the Federal Council and communicated to the Federal Assembly (Art. 141 Parliament Act). In this communication, the federal administration gives a global evaluation of the treaty text, specifying the content and the scope of every provision. After the Federal Assembly approves the treaty, it adopts a federal decree.

The adoption by the Assembly does not necessarily end matters. In some cases, Swiss constitutional law requires that the citizens and cantons must be consulted. Indeed, a mandatory referendum is required if the treaty in question concerns the accession to an organizations for collective security or joining supranational communities (Art. 140 (1) (b) Const.). On this basis, a referendum was organized in 1992 where citizens voted on joining the European Economic Area. Though strongly supported by the Federal Council, this project was rejected at the polls. Optional referenda (Art. 141 (1) (d) Const.) are also possible, for which 50,000 voters must sign a petition, or eight cantons ask for such a vote, within 100 days of official publication of the federal decree. Signed treaties of an unlimited term or when withdrawal from the treaty is not permitted may be subject to popular vote (those cases were introduced in 1921 and in 1977, respectively). This is also the case for treaties containing important provisions establishing binding legal rules or whose implementation requires the adoption of federal laws (introduced in 2003).

Here, too, the federal administration plays an active role, as it establishes whether the treaty in question must be subjected to a mandatory referendum. If an optional referendum is held, the federal administration must verify whether one of three hypothesis take place. Assessing whether a treaty contains important provisions establishing binding legal rules is considered as particularly delicate to assess (Ziegler 2015: 115).

It also has to organize the referendum. Documents must be distributed to all electors in order to allow them to cast their vote validly and in accordance with the respective cantonal procedure (ballot, legitimation card, official voting envelope or validation stamp, etc.). The federal administration provides electors with objective and exhaustive information about the proposed treaty, and by law, this should take into account the main views which have been expressed, including those of the federal Assembly, those of the referendum's initiators and of important minorities (Art 10a and 11 Political Rights Act). Inside the federal administration, the Federal Chancellery is in charge of organizing the referendum, and it takes a selfdefined neutral position in doing so.

While the federal authorities may plead for a strong commitment to multilateralism, the referendum process may show a desire on the part of the population to be more isolationist. The mechanism itself works to the advantage of adhering to international law; it completes the democratic debate by directly connecting the parties concerned. Moreover, it requires of the federal administration that it deliver a clear explanation to the voters explaining Swiss interests in deepening and extending its international relations, but equally evaluating the impact of international law on the domestic legal system. It makes it possible to directly address the potential conflicts between international and national provisions.

A clear institutional dynamic is at work, with its special characteristics deriving from the institutions of federalism and direct democracy. Of these two, direct democracy appears to be of particular relevance for explaining the flexibility in the Swiss ratification system. It allows a soft control over the federal government's actions in its international commitments. The federal administration is a key factor here, though it must combine sometimes contradictory tasks involving monitoring, coordinating, synthesizing and narrating the debate on ratification.

# 6.4 The Role of the Federal Administration in the Application of Public International Law

When applying international norms in the domestic legal system, Swiss law is faced with the traditional issues of international law, namely the direct applicability of the international norm (Sect. 6.4.1). Switzerland, however, is also confronted by a particular challenge: the possibility for citizens to launch a popular initiative, even if that initiative potentially contradicts existing international obligations (Sect. 6.4.2).

#### *6.4.1 The Direct Applicability of International Law and Its Position Within the Domestic Hierarchy of Legal Norms*

The development of international law raised a number of legal questions, most notably about the effect and legal force international norms would have on the domestic order, both in terms of national law and constitutional law. Such issues have a direct effect on the work of public administration, and here the Federal Supreme Court provided a response.

As already mentioned, as far as direct applicability is concerned, Switzerland is in the 'monistic' tradition (Haller 2016: 19). This means no particular act is required for an international rule to be considered valid in the domestic legal system (decision of the Federal Supreme Court case of 27 October 1994: ATF 120 Ib 360, 366). More concretely, the Federal Supreme Court stated that an international provision is directly applicable if sufficiently precise and unconditional to produce a direct effect. In other words, international provisions must permit the constitution of a basis for a concrete decision (decision of the Federal Supreme Court of 2 September 1986: ATF 112 Ib 183, 184). From then on, such conditions determined by the Court have been used by the Federal Council to determine the impact of an international engagement on Switzerland's internal bodies (preliminary report of the Federal Council 2003: 80; ibid. 1994: 1481). In practice, these conditions are verified and explained when a federal message on a ratification is drafted. If the international provisions do not fulfil those criteria, they are considered not self-executing. It is then for the legislators (cantonal and/or federal) to implement the programmatic provisions (this was notably the case when the Federal Council elaborated the ratification project to the 2006 United Nations Convention on the Rights of Persons with Disabilities 2012: 601 et seq.). Furthermore, over time the Federal Supreme Court has promulgated several interpretations about the legal force of international provisions on Switzerland's legal system.

During the 1920–1930s, the Federal Supreme Court considered international treaties to be on equal terms with national legislation. In this perspective, in case of conflict, it applied the interpretation rule *lex posterior derogat priori*, meaning a later legal rule prevails over an earlier rule. In 1968, the Court recognized the 'principle of interpretation in conformity' with international law. In other words, when facing a conflict, the national legal norm must be interpreted in a manner compatible with the relevant international rule. A national legal rule adopted after the ratification of an international treaty shall also be interpreted in conformity. Moreover, if a conforming interpretation is impossible, the Federal Supreme Court confirms the nonapplication of the national rule. By doing so, the Court progressively established the idea of the superiority of international over domestic law. Five years later, in 1973, in the Court's 'Schubert' ruling, it halted this idea of superiority in the event legislators expressly overrode international law. In such cases, the national norm outweighs international law (Decision of the Federal Supreme Court of 2 March 1973: ATF 99 Ib 39).

With the acceleration of the development of international law, the Federal Supreme Court did rule in 1991 that Switzerland cannot avoid its international obligations by applying its domestic law. Domestic law has to be interpreted in conformity with the rules of international law (Decision of the Federal Supreme Court of 26 July 1999: ATF 125 II 417, 424; for an analysis of the case law, see Lammers 2015: 80). If a conforming interpretation is not possible, the Court said that then national rules are not applied. Such a solution has been considered as particularly pertinent when a domestic rule breaches an international rule relating to the protection of human rights (Decisions of the Federal Supreme Court of 26 July 1999: ATF 125 II 417, 424; and 26 July 2002: ATF 128 IV 201, 205). Such an interpretation has been retained in the wording of Article 5 of the Constitution of 1999, which said 'the Confederation and the Cantons shall respect international law' and not 'shall comply' as in art. 49 (1) Const. (Aubert and Mahon 2003: 48 et seq; Thürer 2001: 190).

By 2005, however, the Federal Council was taking a more cautious position, referring to the Schubert ruling, when answering a parliamentary question: 'International law has, in principle, precedence over federal law—at least, if the federal legislation did not knowingly adopt a rule in conflict with international law. The place held by international treaties in the internal hierarchy of norms is controversial in both legal literature and case law. The peremptory norms of public international law (*jus cogens*) take precedence over all public law rules and set limitations to constitutional revisions' (Federal Council, written answer d.d. 23 April 2005, Official bulletin of the National Council 2005: 212).

#### *6.4.2 Constitutional Amendments and International Law*

In practice, it is generally known that Swiss citizens—and, in particular, those political parties failing to find policy decisions which accord with their ideologies—increasingly use the instrument of the popular initiative. One of them, in particular, even seems ready to propose breaching constitutional amendments to achieve its goals.

To prevent an open conflict between international law and the Swiss Constitution, a system to monitor the compliance of popular initiatives with international law has been instituted (Art. 139 (3) Const.). This control is carried out by the Federal Assembly, which verifies that prior to voting, the proposed constitutional provision will not breach the *jus cogens*. The object of this control is limited to the basic norms and principles of international humanitarian law and the safeguards required by international law not subject to derogation. The parliament has no power to block a popular initiative, but it can formulate a counter-proposal (Auer 2016: 399). To date, only one initiative has been ruled invalid because it was deemed incompatible with a peremptory norm in general international law, namely the *nonrefoulement* principle (Rhinow and Schefer 2009: 722; Mahon 2014: 115). Other initiatives, which did not violate any of the above-mentioned norms but remained problematic, have been put to vote and, in some cases, adopted. The initiative banning the constructions of minarets, approved by Swiss voters in 2009 (see Art. 73 (3), Const.), is a good example. Clearly targeting one specific religion, the Federal Council judged that it violated norms concerning the freedom of religion as well as the prohibition of discrimination (established in Art. 9 and 14 European Convention on Human Rights (ECHR), but also in 2 and 18 of the UN Covenant II and, possibly, the protection of minorities guaranteed by art. 27 of the Covenant (preliminary report of the Federal Council 2008: 6924)).

In the end, the federal administration, bound by international law, must implement initiatives, respecting the policy aim of the initiative's promoters and the results of the vote. In this case again, the role of the federal administration is important. Indeed, several scenarios to solve a similar situation have been imagined and sometimes tested.

The first scenario is to imagine implementation laws in conformity with international law. This delicate strategy was used to deal with the initiative for the automatic expulsion of foreign criminal offenders, voted in 2008 (Art. 121 Const.). The application of the new constitutional provision can expose some individuals to a dangerous return to a state where they could potentially be threatened with violence or persecution. To avoid this hypothesis, the federal administration applies the norm by implementing the expulsion decision only if the individual's life is not endangered in the country of origin (Hertig Randall and McGregor: 431).

The second scenario, untested today, is to renegotiate or withdraw from the treaties that are in conflict with a newly adopted constitutional norm. The Federal Council began a political discussion with the Federal Assembly in 2015 (Conseil des Etats 2016), which has initiated a bill on the competence to renounce a treaty (Conseil des Etats 2018). The option of renegotiation was evoked when the popular initiative for 'ending mass immigration' was adopted in 2014, requiring the implementation of immigration quotas and giving Swiss workers priority in employment. This new article 121a is viewed as particularly problematic, given the bilateral agreements—especially on the free movement of persons—between Switzerland and the EU, which gives Switzerland access to the single market (Maiani 2013) and also other treaties as the ECHR, the UN Covenant II and the Convention on the Rights of the Child (Erhenzeller et al. 2014: 2196). Nevertheless, given the potential impact of this norm on the Swiss economy, one dependent on commerce with the EU member states, the application of this provision required considerable negotiation between the Federal Council and the EU. After long and intense diplomatic exchanges, the Federal Administration found a solution. They chose to adopt a regulation compatible with the current agreement, thereby maintaining good relationships with the EU without completely negating the new provision in the Swiss constitution.

A third scenario was foreseen by extending the recognized grounds for invalidating popular initiatives. This proposal was abandoned in 2014, after the federal administration discovered during the consultation process that there were fundamental and unbridgeable differences of opinions among the actors involved (Commission des institutions politiques du Conseil d'Etat 2015: 6493).

Finally, 'popular initiatives which are incompatible with Switzerland's international obligation are not new, the violation of international law has in the past been rather accidental than intentional' (Hertig Randall and McGregor 2010: 429). An initiative calling for 'Swiss law instead of foreign judges (self-determination initiative)' is part of the current trend (Kolb 2016). Its aim is to produce a constitutional amendment which would establish the primacy of national constitutional law over international law, thereby reversing the historical trend integrating international law in Swiss law.

### 6.5 Conclusion

Swiss law shows a variety of interesting norms visible when dealing with the impact of international law on domestic legislation. The distribution of roles and competencies demonstrates sophisticated institutional engineering in terms of treaty ratification. The risk in activating direct democracy mechanisms can be seen as the reason justifying this complex system. With this in mind, direct democracy can be considered as producing a positive, legitimizing effect on the recognition of the place of international law in the domestic order. This allows one to dismiss the argument often put forward by detractors who frequently assert international law is produced by technocratic decision-makers and lacks democratic legitimacy.

The effect of direct democracy can also be unwholesome, particularly in the case of popular initiatives, and serve to promote minority ideologies, whether progressive or conservative. Currently, in the human rights domain, the use of the popular initiative is aimed at calling into question Switzerland's foreign policy engagements, or to reject the autonomous developments of international law. It has advocated an ideology of retreat into national self-interest, in opposition to the humanist perspective found in contemporary international law, echoing the humanitarian tradition of the country, another founding principle of the Swiss constitutional order.

In this particularly tense situation, the federal administration plays a key role. Like a mediator, avoiding the confrontation between actors and legal norms, it contributes to finding a compromise. The key challenge for the federal administration is to maintain this position of equilibrium between the international openness of Switzerland regarding its humanitarian and neutrality traditions and its adherence to a political system defined by its direct democracy mechanisms. From this point of view, the political context seems to show the popular initiative will still represent a challenge in the future.

### References

Aubert, J.-F., & Mahon, P. (2003). *Petit Commentaire de la Constitution fédérale de la Confédération suisse du 18 avril 1999*. Zurich/Basel/Genève: Schulthess.

Auer, A. (2016). The people have spoken: Abide? A critical view of the EU's dramatic referendum (in)experience. *European Constitutional Law Review, 12*(3), 397–408.

Mader, L. (2013). Législation. In A. Ladner, J.-L. Chappelet, Y. Emery, P. Knoepfel, L. Mader, N. Soguel, & F. Varone (Eds.), *Manuel d'administration publique Suisse* (pp. 245–265). Lausanne: Presses polytechniques et universitaires romandes.

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/ by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# Soft Law Instruments in Public Law

# *Alexandre Flückiger*

# 7.1 Introduction

In Switzerland, the principle of legality establishes that state activity is based on, and limited by, law (Article 5, Swiss Constitution). Its function is to ensure that the democratic will expressed by legislators is implemented by an administration that does not act in an emotional or capricious manner. The instruments available to the state, and through which it acts, are laws, decisions, and contracts, along with the actions it takes to plan and coordinate individuals working together. It is characteristic of such acts that they are legally binding.

Administrative activity is not exhausted by the aforementioned legal acts, however. In fact, administrative practices manifest modes more suited to governance: preferring incentives over obligations, citizen cooperation rather than unilateral decisions, and coordinating multiple actors to the detriment of maintaining a hierarchical order. Such instruments are frequently grouped under the label 'soft law'—in French, *droit souple* Conseil d'Etat 2013; Hachez et al. 2013.

Soft law has often performed an experimental function, to test a possible future legal rule (for 'green' law, see Abi-Saab 1997: 207 et seq., for

A. Flückiger (\*)

Faculty of Law, University of Geneva, Geneva, Switzerland e-mail<EMAIL_ADDRESS>
<sup>©</sup> The Author(s) 2019 121

A. Ladner et al. (eds.), *Swiss Public Administration*, Governance and Public Management, https://doi.org/10.1007/978-3-319-92381-9\_7

'pre-law', Peters 2011: 34). The state can thus accustom addressees to a new standard which, once sufficiently matured, may become obligatory. An example is the use of seat belts: they were recommended before they became mandatory. Soft law thus guides the behavior of citizens without imposing a legal obligation. It does not replace traditional administrative activity but instead complements and strengthens it in areas where more traditional modes of governance reach their limits (Mader and Rütsche 2004: 18 et seq.; Morand 1999).

The development of this kind of state action, which is at the fringes of the law, poses difficulties for jurists. Indeed, if the ability of soft law to achieve results—in other words, its effectiveness—is likely to legitimize a remedy for a problem, its democratic foundation totters. In fact, the principle of legality, at least initially, was not designed to legitimize such flexible instruments. In addition, the limited formal requirements for carrying out soft law measures make it possible to circumvent the sluggishness of administrative or parliamentary procedures, dampen the resistance of political actors to new policies, prevent adopting regulations which are too binding or, in certain domains, compensate for an absence of competence to pass obligatory measures. From the point of view of legitimacy, this characteristic of soft law instruments is particularly problematic, since under the rule of law, efficiency criteria cannot be allowed to supersede legality.

In the Swiss case, the legal system has a tendency to tolerate or even establish mechanisms of administrative action under soft law. The Swiss Federal Supreme Court even defends this practice: 'It is not necessary that every governmental intervention take the form of a decision. If so, it would affect the proper functioning of the administration. It is often indispensable that the authorities proceed informally' (Decision of the Federal Supreme Court of 9 April 2002: ATF 128 II 156, 163). This flexibility can be understood as an application of the principle of proportionality, as Article 5 of the Swiss Constitution notes that 'state activities must be … proportionate to the ends sought'. The Swiss legal system thus evinces a gradual normativity that reconciles the need for flexibility on the part of the administration. This is an essential ingredient to ensure a degree of efficiency and legitimacy, one indispensable for ensuring a democratic governance of the rule of law.

One thus needs to examine this type of instrument at the disposal of Swiss public administration. To specify this notion of soft law and identify the legal issues involved, we use a typology that covers differing types of state instruments in Swiss public law (Sect. 7.2). Next, we look at the legal effects (potentially) generated when public authorities use this type of instrument (Sect. 7.3). Then, we turn to how effective they are for the functioning of the state (Sect. 7.4). At the end, we return to the need, within the Swiss constitutional framework, to both guarantee the legitimacy of soft law and maintain its effectiveness (Sect. 7.5).

# 7.2 A Legal Typology of Non-obligatory State Instruments

One can begin with the observation that non-binding state instruments can change the behavior of individuals either by means of a text (more formally, as 'acts of non-obligatory declaration') or by de facto acts ('material acts in the narrow sense'). However, in the case of the former, they can be enacted unilaterally by the state (Sect. 7.2.1) or in a concerted manner (Sect. 7.2.2).

They thus resemble classic legal acts. Like legal norms, they also contain norms of behavior. In the case of legal acts, the norms are mandatory and must be followed. In the case of 'acts of non-obligatory declaration', however, the norms are only recognized inasmuch as they are acknowledged by their addressees. Standards, in their non-legal sense, are not necessarily imperative in such cases. Finally, while such 'acts of non-obligatory declaration' contain rules which may or may not be followed, 'de facto acts' consist of specific actions and contain no norms (Moor and Poltier 2011: 28 et seq.) (Sect. 7.2.3).

#### *7.2.1 Unilateral Non-obligatory Acts*

The principal unilateral non-obligatory act at the disposal of the state is to make recommendations; a number of other special cases also illustrate this.

#### *<IP_ADDRESS> Recommendations*

Recommendations are declarations which suggest a certain behavior should be followed. They take many different forms. Behind this diversity lie different degrees of emphasis; a warning has a stronger character than a wish or simply a piece of advice.

Giving a recommendation is a classic instrument in international public law and EU law. The resolutions and declarations adopted by the United Nations General Assembly, the most famous of which is the 1948 Universal Declaration of Human Rights, are recommendations, as are the various recommendations made by the Council of Europe. Similarly, declarations made at international conferences, such as at the Rio Summit on Environment and Development in 1992, or the Bologna Declaration about higher education in 1999, are also recommendations (Daillier et al. 2009: 416 et seq.; Guzman and Meyer 2010; Shelton 2008). In European law, recommendations and opinions have been institutionalized, though here too, these acts are not binding (Article 288 of the Treaty on the Functioning of the EU). Thus, the Charter of Fundamental Rights of the European Union was not legally binding before the Lisbon Treaty came into force (Nowak 2011: 134 et seq.). At the international level, some rules which take the form of a recommendation are also produced outside of government. These may come from private, semi-public, or hybrid actors and their influence on internal law may be decisive (Pauwelyn et al. 2012). To some authors, they even appear to be a kind of global administrative law (Cassese 2005).

As will be shown later, recommendations have become a classic instrument in Swiss law. In terms of formulating behavioral rules, recommendations may be either explicit or implicit in nature. Thus, when they directly state what the recommended behavior is, they will be described as explicit. Some examples are provided in Table 7.1 (Moor et al. 2012: 404 et seq.).

However, when state instruments point toward following a behavior without expressing it explicitly, the behavior to be followed stems implicitly from the instrument; its purpose, more or less obviously, amounts to a recommendation. Thus, through the publicity a public authority gives to its exemplary behavior, it can exhort individuals to adapt their conduct (Morand 1999: 178). Furthermore, a public administration thus demonstrates the feasibility of adopting the conduct, and thus increases its credibility.

For example, in public procurement, the incentive effect is reinforced when the state uses its power to issue contracts. They serve their own recommendations and are contained, in turn, in their public policy objectives. Although the potential contractors remain free not to conform to the state's new requirements, they then take the risk of being excluded from the public market (Manfrini 1991). In keeping with the principles of transparency, equal treatment, the prohibition of discrimination, and free competition, the state may lay out certain criteria, particularly ecological or social, before awarding a public contract (Rodondi 2001).

**Table 7.1** Typology of recommendations

Incentive taxes in the context of the environment operate the same way (Oberson and Maraia 2010). Individuals are free to put vegetable peelings in their garbage bags, but if the bag itself is taxed, it serves as a financial encouragement or incentive for individuals to sort their waste a little more carefully.

Labeling or certification requirements (Article 43a, Environmental Protection Act or EPA) serve to guide the choices market actors make. They can certainly ignore the requirements, but may then find themselves at a competitive disadvantage in obtaining public contracts (Subilia-Rouge 2010: N. 73 et seq.), or find themselves in difficulties when monitoring or controlling procedures are carried out.

Awards and prizes to citizens from the authorities (Article 7, Film Act) are an indirect recommendation to follow the rewarded behavior. Training can also profoundly influence an individuals' behavior, at least over the longer term.

Depending on the context, even objectively presented information or description may have an incentive effect. The scientific observation that 'smoking kills', when affixed to a cigarette package, can be interpreted as a recommendation not to smoke.

However, unilateral, non-obligatory acts are not exhausted by recommendations alone. A series of special cases attests to this.

### *<IP_ADDRESS> Special Cases*

Many special cases demonstrate that non-obligatory acts take a different form than recommendations. Thus, in areas where international relations are strongly intertwined, foreign law can have a place in national law like that of soft law. Switzerland's adoption of EU law provides an illustration. As a non-EU member, Switzerland is not obligated to follow EU law. Nevertheless, it behooves—and helps—the Swiss to follow EU law, as appropriate. The same could be said of domestic draft law: it can exert real influence in helping interpret a rule, justify a litigious legal basis, or anticipate potential implementation issues (Flückiger 2004: 205 et seq.). These are not examples of recommendations, as neither a foreign law nor a domestic draft law in itself has a recommendatory purpose.

Swiss law also produces administrative orders, which encompass circulars, directives, instructions, guides, and similar material. These are not binding on the administered but are binding on those who administer (Moor et al. 2012: 420 et. seq.). The former may be interested in complying almost by reflex, particularly when such orders affect their legal situation.

In urban planning, certain actions are obligatory, the best known of which are land allocation plans (Section 21, Land Use Planning Act). Many other actions are only partly required, or not required at all, and in this case, they bind only the authorities (Moor and Poltier 2011: 578 et seq.).

#### *7.2.2 Concerted Non-obligatory Acts*

The soft law toolkit includes concerted acts, referred to here as arrangements. This notion of concerted non-obligatory acts is also known in international public law, and are called gentlemen's agreements, nonbinding agreements, joint statements, charters, arrangements, codes of conduct, and the like (Daillier et al. 2009: 422 et seq.; Pauwelyn et al. 2012; on codes of conduct specifically, see Keller 2008). Such acts unite flexibility with cooperation, two typical features of governance. They are the favored expressions of self-regulation but should not be confounded with it. Numerous classifications are imaginable, but we focus here on concerted acts which have a degree of linkage to legal acts.

### *<IP_ADDRESS> Preparing a Legal Act*

Certain arrangements may be made in conjunction with preparing a legal act. We can mention (Flückiger 2004: 207 et seq.):

Such arrangements may also be concluded between public authorities (see Article 31a EPA, which provides for a mediation procedure if the cantons cannot agree).

# *<IP_ADDRESS> Implementing a Legal Act*

Other arrangements are meant to help implement the legal rules, such as those for environmental audits in which the state agrees to reduce the intensity of surveillance in return for commitments by a company to implement an audit and certification system (Subilia-Rouge 2010: N. 51).

### *<IP_ADDRESS> Preventing a Legal Act*

Some gentlemen's agreements are concluded with the aim of preventing the state from carrying out a legal act. In return, individuals provide a service which makes it possible to respond more appropriately to the problem that the legal act was meant to resolve. In legal terms, if the renunciation of the power to legislate does not rest on a legal basis, the state can always intervene. In this situation, individuals could not avail themselves of this renunciation should the state nevertheless decide to legislate (Decision of the Federal Supreme Court of 7 July 1992: ATF 118 lb. 367, 380, § 9b and d). This type of arrangement is therefore based on a dual relationship. On the one hand, it is a relationship—in the nature of a recommendation—between the state and private individuals. On the other hand, it is a link—at times obligatory—between individuals that makes it possible to implement the substituted mechanism (Errass 2010: 62 et seq.).

One should note here that codes of professional ethics are very informal precursors of this type of arrangement. They make it possible to avoid having public authorities themselves adopting rules to monitor the profession. The Swiss National Bank used such informal arrangements as early as the 1930s, and they were gradually integrated into ordinary law and thus lost their initial informality. More recently, public authorities have concluded many gentlemen's agreements (Brunner 2004).

Swiss law provides several examples of the gradual formalization of the vertical relationship between the state and individuals:

#### *7.2.3 Material Acts*

Among non-obligatory state acts, one can also speak of material acts in the narrow sense. Their common point is their use of concrete measures. Examples include building traffic obstructions to mitigate traffic flows, installing gates or barriers to prevent trespassing, installing mechanisms which keep vehicles from starting until the cars' seat belts have been fastened, or regulating the Internet by using its technical architecture.

Such material acts in the narrow sense are not legally binding but are instead concrete actions. Unlike mandatory or voluntary norms, acts of this kind influence behavior through facts rather than declarations. One can therefore say this type of state action is neither 'law' nor even 'soft'. Transgression, when it is possible, provokes consequences at the level of facts. Still, depending on the case, such a transgression can be more penalizing than the transgression of a legal act. For example, repairing shock absorbers damaged by driving too quickly over a speed bump meant to slow cars down may ultimately prove more expensive than paying a fine for speeding.

### 7.3 Legal Effects of Non-obligatory State Acts

Although state actions under soft law are in principle not legally binding, they are nonetheless legally relevant (Moor et al. 2012: 410 et seq.). Indeed, they can infringe on rights, fundamental or not. Article 35 (2) of the Swiss Constitution, in fact, states that 'whoever acts on behalf of the state is bound by fundamental rights and is under an obligation to contribute to their implementation'. This ensures that material acts, in a broad sense, are subject to concrete legal control (Decision of the Federal Supreme Court of 13 November 2006: ATF 133 I 49, 56). In this case, examining non-obligatory state acts makes it possible to detect a specific normativity, one staggered in several steps.

Thus, in some very particular cases, non-obligatory state acts may become mandatory. For example, the Federal Food Act empowered the Federal Council to order that certain sections of the Food Manual are binding, even though the manual itself was a recommendation (Articles 22 (2) and (3)). Another example is provided by the Competition Commission. Indeed, given 'good faith' principles (noted in both Art. 5 and Art. 9 of the Swiss Constitution), this Commission is obliged to apply the criteria it adopts and publishes in documents called 'general notices' (see Art. 6 (1) of the Cartel Act), which are without binding force.

Legislation may also include special clauses which indirectly confer a binding force on a non-obligatory act, such as when a law states that decision X must be consistent with recommendation Y, which means there is no choice but to comply with the recommendation. Thus, in constructing high-current electrical equipment, the technical recommendations of the association of Swiss electric power stations 'must be followed' (Article 7 (2), High Current Ordinance).

Less frequent are the cases in which a recommendation is included in a normative act. Here the recommendation has no direct effect on individuals. It can however bind other public authorities, especially those in a hierarchical or supervisory relationship. For example, according to the Federal Road Traffic Ordinance, car lights 'should' be on even during daylight hours (Article 31, FRTO). The Federal Office of Energy, for example, no longer has the right to make a recommendation to the contrary, on the grounds that compliance with such a measure would increase fuel consumption and increase pollution.

A governmental recommendation may also have a permissive effect, in that it legitimizes the action of those who follow it. In this case, its recipients do not commit an offense by acting in a manner which is recommended. If it was to be considered that they committed one, it would mean that the act itself is contrary to the law. This implies that such acts can be controlled by a judicial body in case of doubt as to their compatibility with legal norms.

Finally, the public authorities may define, using a legal standard or norm, the jurisdiction for adopting a non-obligatory act. Here again, such a rule does not bind the addressees. However, it has a legal effect since the public authorities still must act within the framework thus drawn. It is the same when the law incorporates such an act into a more general procedural framework. The enactment of the recommendation is then a preliminary step in a process which leads to adopting a legal act. The result is a legal effect, since the failure to enact may constitute a procedural defect. In this case, the non-obligatory act constitutes a prerequisite for the adoption of the obligatory act. For example, Article 14 of the Price Surveillance Act requires the public authority in charge to obtain a ruling from the Price Regulator when required by law.

# 7.4 The Implementation of Non-obligatory State Acts

When the authority resorts to governance mechanisms which are not binding, one can legitimately wonder whether these have a useful effect on society. To answer this, one needs to address the more general issue of the effectiveness of soft law (Sect. 7.4.1) and then examine the techniques which have been developed to strengthen it (Sect. 7.4.2).

#### *7.4.1 The Effectiveness of Soft Law*

The addressees of acts of soft law are not legally bound to follow them. Nevertheless, such acts are recognized as having a concrete effect of varying intensity (Moor et al. 2012: 415 et seq.)—and many non-binding state acts do not need to be legally binding to be regarded as politically imperative. Obedience obviously does not depend on attractiveness or fear, consequences classically sought by the law. They instead depend on moral, ethical, political, economic, or psychological considerations.

Some examples serve to illustrate the power and influence of acts of soft law. Thus, the 1999 Bologna Declaration has led to a rapid and profound reform of the practices in institutions of higher education throughout Europe even though the Declaration itself is devoid of legal force. Public administration offices or courts are also likely to use soft law to interpret legal rules, though here the effect is indirect. For example, the European Court of Human Rights has condemned Romania for violating the right everyone has 'to respect for his private and family life and his home' (Article 8, European Convention on Human Rights) on the grounds that Romania has not stopped mining for gold ore, despite the precautionary principle enshrined in the Rio Declaration, a non-obligatory act (Tatar vs. Romania, 27 January 2009, vs. 120; Ailincai 2017).

Fear of civil or criminal liability can act as a strong incentive to comply with a recommendation. Following a drowning, the head of a water park was convicted of negligent homicide, on the grounds that a CCTV camera placed underwater, as recommended by the Swiss Accident Prevention Bureau, could have prevented this death (Federal Supreme Court, Decision 6S.358/2004 of 10 November 2004, paragraphs 5.3 and 7.2).

In some cases, the effects of soft law may be even more severe. The classic example is provided by alerts issued against defective products. Due to the potential damage to the image of the company, the publicity generated by issuing a warning (a non-obligatory act) carries greater weight than a simple notification prohibiting the distribution of a defective product (an obligatory act).

### *7.4.2 Techniques for Reinforcing Effectiveness*

The state can resort to various mechanisms, both psychological and legal, to increase the effectiveness of the actions it takes. Techniques from social psychology or affective science can be particularly effective; they make tactical use of the emotions of addressees of an act by evoking feelings of fear, guilt, or desire. The use of such techniques, however, is clearly an issue in a society predicated on freedom and individual autonomy. They must therefore be justified, all the more so because of the weaker democratic legitimacy of soft law (Flückiger 2009).

Mechanisms of a legal nature can also strengthen the respect for soft law. Those to whom such soft law is directed remain free to follow them or not, but the de facto constraint can be strong, and in terms of its effects, may be indistinguishable from a legal constraint. Take the example of financial or regulatory pressure. The behavior an incentive tax or a subsidy suggests is only a recommended path, but not following it may be expensive or even jeopardize the existing system.

Legislation may also require that a recommendation be used simply as a basis for making a decision or that exemption from a recommendation be motivated (non-binding imperative clauses). Public authorities are not obliged to scrupulously follow the provisions contained in such a soft law act, but must instead use it as a basis in the decision-making process. Thus, the Federal Veterinary Office, in preparing and publishing statistics, takes international recommendations 'into account' (Article 147 II, Animal Protection Ordinance). Finally, legislators can insert a retrospective evaluation clause regarding the implementation of a nonobligatory act. Under Swiss law, for example, the federal government must 'inform' the Aircraft Accident Investigation Bureau of actions taken as a result of safety recommendations, or the reasons measures are not being taken (Art. 32 Directive on investigating aviation accidents and serious incidents).

# 7.5 Conclusion: Legitimizing Soft Law, Beyond Efficiency

Implementing the goals of public policy is no longer conceivable today without the use of soft law, as the Swiss case amply demonstrates. Indeed, the flexibility in adopting such instruments, combined with the effects they are likely to have, makes them indispensable in terms of efficiency.

However, as noted in the introduction, such soft law tools are problematic inasmuch as they do not enjoy the same democratic legitimacy as ordinary acts of law. If soft law had no effect, this would not pose particular problems, but as we have shown, this is not the case. Faced with this situation, it is necessary that public authorities adopt legitimization measures adapted to the particularities of soft law. One can suggest the following: the more non-obligatory acts by the state infringe on a right (at whatever level), and/or the more important their effects, the more one must ensure they are treated as equivalent to ordinary legal acts.

Specifically, a non-imperative act must be treated by the legal system almost the same way a legal act is when its effects are virtually obligatory (or very binding in fact), and when it affects a right extensively. Conversely, a non-imperative act which is devoid of effect and does not encroach on a right can have a quiet existence far from the legal constraints of the state.

In this perspective, the public authorities then need to become creative in finding ways to legitimize soft law. On the one hand, they must respect the values underlying basic principles of the rule of law: legality, public interest, proportionality, equality, and prohibiting arbitrariness. On the other hand, they must avoid codifying acts of soft law to the point of sacrificing their effectiveness.

Analysis needs to be carried out on a case-by-case basis, according to the different types of acts and the contexts in which they occur. For example, we can cite the requirement that recommendations be carried out in a way that respects the principles of objectivity and transparency, or the need for a consultation in order to guarantee an open, consensual, and participatory process when it comes to non-obligatory urban planning acts. It is also conceivable that procedural guarantees be increased (establishing a consultation process, providing a right to be heard before a recommendation is adopted, or publishing charters).

Finally, one needs to ensure soft law acts can be reviewed. Long limited to liability law, Swiss law has now been extended to allow for the judicial review of non-obligatory acts. Thus, any person with an interest worthy of protection can request that the public authorities refrain from illicit acts, cease trying to carry them out (or even revoke them), eliminate their consequences, or recognize their illegality. The responsible public authorities then reach a decision on this demand, one subject to appeal (Article 25a of the Federal Act on Administrative Procedure). In the case of an infringement of a fundamental right, at least one which is sufficiently grave, Article 35 (2) of the Swiss Constitution cited above imposes legal control (see also Decision of the Federal Supreme Court of 13 November 2006: ATF 133 I 49, 56).

It is not always possible to have a judge intervene, and in such cases, it is preferable to develop alternative control mechanisms, such as mediation bodies, an evaluation of public policies, or reporting to the relevant supervisory authority.

### References

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# Judicial Federalism and Constitutional Review in the Swiss Judiciary

*Pascal Mahon*

### 8.1 Introduction

This chapter deals with the Swiss judicial system. Its aim is to succinctly present the judicial system and to highlight its main features, though length constraints limit this overview to the essential characteristics of the system and what makes it unique. The focus is on two elements: the federalized manner in which the judiciary is organized (Sect. 8.2), and the particularities of Swiss constitutional justice (also called constitutional jurisdiction) (Sect. 8.3).

The chapter first describes the organization of the judicial system, which is strongly marked by the federal character of Switzerland (so there is a pronounced judicial federalism). The philosophy of the system at the federal level is presented, and judicial organization of the cantons is briefly described. The chapter then describes the Swiss system of judicial review (control of the constitutionality of the laws and other state acts), a system which is relatively complete and extended, but, at the same time, has a notable exception in international comparison: Switzerland lacks judicial review of federal laws (and international law).

P. Mahon (\*)

Faculty of Law, University of Neuchâtel, Neuchâtel, Switzerland e-mail<EMAIL_ADDRESS>
<sup>©</sup> The Author(s) 2019 137

A. Ladner et al. (eds.), *Swiss Public Administration*, Governance and Public Management, https://doi.org/10.1007/978-3-319-92381-9\_8

# 8.2 Judicial Organization in General: A Pronounced Judicial Federalism

### *8.2.1 Judicial Federalism and 'Reforming the Judiciary'*

Swiss judicial organization remains very marked by federalism. The application of cantonal law naturally lies with the cantonal judicial authorities. Less naturally, the application of federal law is to a great extent also in the hands of the cantonal judicial authorities. This is generally true for nearly all civil law and practically all criminal law (Art. 122 and 123, respectively, of the Swiss Federal Constitution, abbreviated Const.). Hence, divorces are finalized and murderers prosecuted and punished under material federal law (following the Civil or the Penal Code), by cantonal and not federal prosecuting authorities and courts.

This very pronounced judicial federalism differs from other systems, such as the American, in which two complete, but separate, judicial organizations coexist and yet are superimposed. Put simply, US federal courts deal with federal and inter-state matters while state courts deal with cases arising within their respective states. This is not the case in Switzerland, other than in a few rare cases recently introduced in the context of what is called 'the reform of the judiciary', which is discussed later in this chapter.

Since modern Switzerland began, which is to say since the advent of the modern federal state in 1848, each of the cantons has had a complete judicial organization. Today, their mission, in matters of civil and criminal, and to some extent administrative, is to apply federal law in the same manner as the application of cantonal law. In return, the constituent power in 1848 dispensed with creating an entire federal judicial apparatus. It left to the cantonal judicial authorities, as subordinate bodies, the task of guaranteeing the application of federal law. The federal *power* limited itself for a long time to only establishing a single higher instance, the Federal Supreme Court, which itself was made permanent only in 1874.

This sharing of organizational and judicial competencies has been somewhat modified in recent years as the result of a constitutional amendment to reform the judiciary approved by the voters and the cantons on 12 March 2000. Its purpose was to give the Confederation the power to legislate in procedural matters in civil and criminal domains (through amendments to Art. 122 and 123 Const.), though the organization of the judiciary and the administration of justice were to remain, in principle, in the hands of the cantons (Haller 2016: 80).

In addition, Articles 188 et seq. of the Federal Constitution were modified to permit a complete revision of the Federal Judicial Organization Act intended to introduce a single appeal to the Federal Supreme Court and to regulate—meaning limit—access to this tribunal (Federal Council 2001: 4000). The creation of two new federal courts of first instance, a Federal Criminal Court and a Federal Administrative Court, followed by a Federal Patent Court, was also provided for (Art. 191a Const.).

On 1 January 2007, the new Federal Supreme Court Act (FSCA) of 17 June 2005, which replaced the old Federal Judicial Organization Act of 1943, entered into force. To unify criminal and civil procedures, the Federal Parliament adopted a new Criminal Procedure Code on 5 October 2007 and a new Civil Procedure Code on 19 December 2008. These codes, which entered into force on 1 January 2011, replaced the 26 cantonal codes of criminal procedure and of civil procedure.

As part of the revision of the Swiss Constitution in 1999, a number of new statutes were adopted concerning the two new Federal Courts of First Instance; the Federal Criminal Court Act (of 4 October 2002), later replaced by the Federal Criminal Law Justice Authorities Act of 19 March 2010, in force as of 1 January 2011; the Federal Administrative Court Act of 17 June 2005, in force as of 1 January 2007; and the Federal Patent Court Act of 20 March 2009, in force as of 1 March 2010. We will return briefly below to these different federal courts of first instance. First, however, the Federal Supreme Court, Switzerland's highest court of law, will be presented.

#### *8.2.2 The Federal Supreme Court*

#### *<IP_ADDRESS> The Dual Role of the Federal Supreme Court*

The Federal Supreme Court is 'the supreme judicial authority of the Confederation' (Art. 188 (1) Const.).

The Federal Supreme Court has a dual role. On the one hand, it must ensure that national law is interpreted and applied in a uniform manner, whether these are legislative acts, regulations, or international law (where it plays the role of supreme judge). On the other hand, it needs to guarantee that both federal and cantonal constitutions are respected, including protecting the constitutional rights of individuals (where it plays the role of constitutional judge). It is therefore one and the same court which, as supreme authority, performs the functions of ordinary judge (in civil, criminal, and administrative matters) as well as constitutional judge of the Confederation. As compared with the French judicial system, the Swiss Federal Supreme Court combines the roles of the *Cour de cassation* (the highest court in civil and criminal matters), the *Conseil d'Etat* (the highest court for administrative justice), and the *Conseil constitutionnel* (the highest constitutional review authority). In German terms, it combines the roles of the *Bundesgerichtshof*, *Bundesverwaltungsgericht, Bundesfinanzhof*, *Bundesarbeitsgericht*, *Bundessozialgericht*, as well as that of the *Bundesverfassungsgericht*.

Consequently, it generally only intervenes as a last resort. As already noted, the control over the application of cantonal law is not only the business of the cantonal courts, but is largely true in the application of federal law—at least at the lower levels—as well. The cantons all have complete, multi-level judicial organizations, but with exceptions for specific areas, the Swiss Confederation has few lower instances. So for the most part, the Federal Supreme Court only acts once the cantonal courts have done their work, and then as a court of appeals against their judgments, whether in civil (Art. 72 et seq. FSCA) or criminal matters (Arts. 78 et seq. FSCA), and in public law (Art. 82 et seq. FSCA). Only in exceptional cases does it judge certain cases as the sole instance, for example, when jurisdictional disputes arise between federal and cantonal authorities, or between cantons (Art. 120 (1) (a) and (b) FSCA).

The law provides for various means of legal redress in bringing a case to the Federal Supreme Court: three ordinary (civil law, criminal law, and public law appeals) and one extraordinary (a subsidiary constitutional appeal). As conditions for admissibility, it also places certain limitations on access, such as setting minimum values in civil or administrative litigation or even restricting access entirely. The FSCA (Art. 83), for example, gives a long list [from a. to x.] of areas where a public law appeal is not admissible, for example.

#### *<IP_ADDRESS> The Composition of the Federal Supreme Court and the Appointment of Judges*

By law, the Federal Supreme Court is composed of 35 to 45 ordinary judges (Art. 1 (3), FSCA); the number of deputy judges may not exceed two-thirds of the number of ordinary judges (Art. 1 (4) FSCA). Through a regulation, it is in fact the Federal Assembly which determines the number of judges (Art. 1 (5), FSCA). As of 30 September 2011, this was set at 38 ordinary judges and 19 deputy judges. It is also the Federal Assembly, meaning both houses of Parliament, which elects the federal judges (Arts. 168 (1) and 157 (1) a) Const.).

In practice, Parliament tries to adhere to a proportional representation of the different linguistic regions, the two Christian denominations and, above all, the main political parties represented in the Federal Assembly. As a result, federal judges are always associated with a (major) political party (Lienhard et al. 2017: 417–419). When a vacancy occurs, it is the political party of the retiring judge which, in principle, selects and presents replacement candidates to the Judicial Committee of the Federal Assembly. The National Council (lower house) is re-elected every four years; if a significant modification in the equilibrium of the political forces takes place, the new power balance can be taken into account when one or more vacancies appear in the Federal Supreme Court, whence the composition of the latter can be adapted to the new order. Ordinary judges and deputies are elected for a six-year period and can be re-elected (Art. 145 Const. and Art. 9 (1) FSCA).

It is a peculiarity of the Swiss judiciary system that federal judges are elected on a partisan basis, and for a limited time period, by Parliament. Cantons follow suit: some even provide for the popular election of judges, and the terms can vary from one to as many as ten years, depending on the canton.1 Such a judicial system is often little understood abroad, given the principle of an independent judiciary. This process is rarely strongly contested in theory and is fairly widely accepted in Switzerland, as it is seen to guarantee to the citizens that judges will represent the existing, and differing, political tendencies or sensitivities in society, at least as represented in Parliament.

According to many authors and even some magistrates, it can give the third power—as with the other two—the democratic legitimacy and the transparency it needs. Added to this argument is the fact that this system is the result of a long tradition and reflects the Swiss conception of democracy. However, the democratic argument loses force with regard to reelection, as judges in most cantons and at the federal level are subject to re-election at regular intervals (Mahon and Schaller 2013a, b). It is theoretically possible that a judge will not be re-elected, and that at the discretion of politicians and without reasons given; this can pose problems in terms of judicial independence. One cannot rule out the potential influence which could be exerted and which could threaten a re-election.

However, while there is no right to be re-elected, in practice, at least thus far, re-election has always been the rule and non-re-election the exception. Judges are virtually never removed for political reasons. The rare cases of a failure to reelect were due to a dysfunction, not politics. Thus, despite the theoretical risk to the independence of the magistrates

<sup>1</sup>The only exception is the canton of Fribourg where judges are elected by the cantonal Parliament, but since 1 January 2008, for an unlimited period.

which the system suggests, in practice such independence has been relatively well ensured until now. In Switzerland, the risks to an independent judiciary are also linked to the small size of the (cantonal, especially in the first instance) territories in which magistrates exercise their office. The 'cantonalisation' of the judicial system, and in the cantons, its organization into districts, results in an almost complete absence of mobility.

Another peculiarity in recruitment is the absence of initial vocational training for becoming a judge in Switzerland, in contrast to the relatively extensive training which exists, and is required, abroad. However, for federal judgeships, Parliament only selects experienced and eminent jurists from the ranks of the cantonal judges, though they sometimes also choose lawyers or university professors (Lienhard et al. 2017: 418).

Finally, at the cantonal level, cantonal laws sometimes require that judges be domiciled in the canton where they exercise their office.

#### *<IP_ADDRESS> The Structure of the Federal Supreme Court*

The headquarters of the Federal Supreme Court are in Lausanne (Art. 4 (1) FSCA), and the work of the court is organized by the domains of law they address. The two divisions which address social law are located in Lucerne (Art. 4 (2) FSCA). Currently, there are two public law divisions (each with six judges), two civil law divisions (one with five, the other with six judges), one criminal law division (five judges), and two social law courts (each with five members). They serve as appeals courts to challenge the judgments of lower cantonal and federal authorities. Other bodies also exist, with their member judges who belong to one of the seven divisions. They include an Appeals Commission, composed of three ordinary judges, which decides in particular about personnel and transparency issues, and two administrative bodies, the Conference of Presidents and the Administrative Commission.

With the exception of the powers—essentially administrative—for which the law requires plenary sessions, the Federal Supreme Court exercises its judicial powers through its divisions, which deliberate alone, unless one of them proposes to derogate from the case law of one or more other divisions, in which case an agreement of that (or those) divisions is necessary (Art. 23 FSCA). The law provides that the divisions are constituted for two years, and as a rule, sit as a three-judge court which is assisted by a law clerk (Haller 2016: 154, 155; Lienhard et al. 2017: 415, 416). If a case concerns a legal question of principle or if a judge so requests, this can be raised to five. A five-judge court is also necessary for appeals against a cantonal act which can be subjected to a referendum, as well as cantonal decisions about the admissibility of an initiative or the requirements of a referendum (Art. 18 et seq. FSCA).

In principle, court sessions are open; remarkably, this is also true for the deliberations as well as voting. However, the law provides for the possibility of ordering a closed session (Art. 57 et seq. FSCA) (Haller 2016: 155). In practice, it is possible to choose a simplified procedure, specifically when the decision is to not consider a case (Art. 108 and 109 FSCA), in which judges decide unanimously and by circulating material (Art. 58 FSCA). Open or public deliberations have become rare or very rare.

#### *8.2.3 The Other Federal Courts*

As noted earlier, as part of the 'reforming the judiciary', and in particular to relieve the Federal Supreme Court, the Federal Assembly created new federal courts of first instance which had not previously existed: the Federal Criminal Court, the Federal Administrative Court, and the Federal Patent Court.

#### *<IP_ADDRESS> The Federal Criminal Court*

If the application of the federal criminal law is largely in the hands of the cantonal judicial authorities, in the sense that crimes and offenses are in principle prosecuted and judged by the cantonal prosecuting authorities and courts, there are still certain categories of infractions whose prosecution and adjudication are the responsibility of the federal authorities (namely, the Federal Public Prosecutor and Federal Criminal Court). These include crimes committed against federal authorities or members of foreign states, offenses related to the use of explosives or toxic gases, and crimes and offenses related to forging money. They also include falsifying watermarks, stamps, or official titles used by the Confederation, genocide and crimes against humanity, war crimes, crimes against the state and national defense, crimes which go against the will of the people and the public authorities, and other matters (see the list of offenses listed in Art. 23 and 24 Criminal Procedure Code).

As the first instance, the Federal Criminal Court therefore judges criminal cases which fall within the purview and competence of the Confederation; its decisions can then be appealed to the Federal Supreme Court.

The Federal Criminal Court has its seat in Bellinzona and is composed of 15–35 ordinary judges who are elected by the Federal Assembly. As per a parliamentary order of 13 December 2013, there are currently 16 ordinary judges and three deputies serving on this court.

#### *<IP_ADDRESS> The Federal Administrative Court*

On 1 January 2007, the Federal Administrative Court replaced the 30 or so federal administrative appeals boards that had previously existed. They had been responsible for reviewing, on appeal, the application of federal administrative law in their specific area of competence.

Generally speaking, it is the responsibility of the cantonal administrations to apply federal administrative law. Thus, to take the example of road traffic, cantonal offices are responsible for applying the federal laws regarding car registration. By having the cantons administer federal substantive law, the Confederation had thus been—and is—able to avoid setting up and maintaining a ponderous network of federal offices. In various domains, it has been satisfied with maintaining a relatively small administrative apparatus that in essence supervises the application of federal substantive law by the cantons.

In some areas, however, the federal legislature has chosen to entrust the application of federal administrative law not to the cantons but to a specific federal administrative unit which is created and set up to this end. This is the case, for example, in asylum law, where the decisions about applying the federal laws on asylum are taken by a federal entity, the State Secretariat for Migration (SEM, formerly the Federal Office for Refugees and then the Federal Office for Migration). This is also the case in a number of other, quite disparate domains, including applying customs, nuclear energy, and organ transplantation laws and regulations.

However, in matters of federal administrative law, litigation is organized following a distinction related to competencies. Thus, when federal administrative law is applied in a given field by a cantonal instance, then recourse is first sought in that canton's administrative court. Only then, insofar as a further appeal is admissible, does it go to the Federal Supreme Court. But if federal administrative law is implemented through an administrative authority of the Confederation, then the appeal is to a federal judicial authority, which since 2007, is the Federal Administrative Court. In this new Court, competencies previously scattered among specialized appeals boards have been concentrated in a single appellate authority of first instance.

As long as the law does not preclude the possibility, decisions of the Federal Administrative Court may be appealed to the Federal Supreme Court (Art. 1 (2) FACA). The Federal Administrative Court has its seat in St. Gallen, and is composed of 50–70 judges who are elected by the Federal Assembly. As per a parliamentary order of 17 June 2005, there are currently 65 judges serving on this court.

#### *<IP_ADDRESS> The Federal Patent Court*

The Federal Patent Court Law came into force on 1 March 2010. This Court rules as the first instance of the Confederation in matters of patents, replacing the cantonal courts which previously had competence in this area.

The Federal Patent Court has its seat at the Federal Administrative Court. It is composed of two ordinary judges and 41 deputy judges who must have technical training, meaning that 28 non-permanent judges possess technical training and 13 have legal training. All of them have proven knowledge of patent law, and all are elected by the Federal Assembly.

#### *8.2.4 Judicial Organization in the Cantons*

The cantons have a great deal of autonomy in terms of judicial organization. With the exception of the federal courts just discussed, all Swiss judicial authorities do indeed proceed from cantonal law.2 However, what characterizes this cantonal judiciary organization is its extreme diversity from canton to canton. This is not only a horizontal diversity between cantons but also vertical: one has to distinguish, in each canton, between the civil, criminal, and administrative jurisdictions.

The Swiss Constitution expressly states that the cantons 'are responsible for the organization of the courts and the administration of justice in civil matters' (Art. 122 (2) Const.), and the same is true for jurisdiction in criminal cases (Art. 123 (2) Const.). The Swiss Constitution does not expressly state the same for administrative matters, but jurisdiction here is based similarly on the organizational autonomy of the cantons. The organization of the cantonal judicial authorities includes the questions of territorial jurisdiction, the conditions of appointments and remunerations of the judges, and the finances and the overseeing of the management of courts (Tophinke 2013: 273, 274; Lienhard et al. 2017: 419).

For civil and criminal matters, cantons generally have two authorities at their disposal in their judicial organization. The judicial system is often organized into lower courts, constituted by district or region, depending on the canton, and a single superior instance, usually called the Cantonal Court. In administrative matters, the application of cantonal administrative law is generally the responsibility of the cantonal administration and its departments. Their activities and decisions are usually overseen by the

<sup>2</sup>One should also note the exception of military courts and military jurisdiction, both under federal law; they are not addressed further here.

higher cantonal administrative court, which is the final cantonal instance before appealing to the Federal Supreme Court.

# 8.3 Constitutional Jurisdiction: An Extensive Review with <sup>a</sup> Notable Exception

The so-called in Switzerland 'constitutional jurisdiction' (constitutional justice) is well developed and combines different types of constitutional review (Auer 1983).

Different types of constitutional review are generally identified. It is either centralized in the hands of a (supreme or constitutional) court or decentralized (Cappelleti 1970). It should also be noted that an abstract constitutional review occurs in the absence of a concrete case of application. The Court simply reviews the constitutionality of norms and these will either not come into force or be repealed. By contrast, concrete constitutional review takes place when an individual decision is based on potentially unconstitutional legislation and the court conducts a preliminary review of the legal norm.

Paradoxically, and despite the worldwide enlargement of constitutional justice (Hertig Randall 2010: 221 et seq.), there has been a notable exception in Swiss law with respect to a category of legal norms: federal laws. Indeed, even if they are unconstitutional, federal laws must be applied by courts and authorities. With the exception of this limitation, all state acts (promulgated in the form either of federal statutes, ordinances, and decrees or decisions), whether adopted by federal, cantonal, or municipal authorities, are subject to constitutional review.

To outline the main aspects of constitutional justice in Switzerland, we therefore first examine it from the perspective of legal instruments (Sect. 8.3.1). Then we will examine the peculiarity of having an absence of review of federal laws (Sect. 8.3.2).

#### *8.3.1 Legal Instruments Subject to Constitutional Review*

As mentioned, other than federal laws (Art. 190 Const.), all legal instruments are subject to constitutional control. Nevertheless, the type of review is not always the same. Two forms of instruments must be distinguished. First, there are 'legal rules' which express binding, abstract, and general norms. Such legal rules can be adopted by the Parliament (statutes or ordinances) or by the Executive (ordinances or decrees) at the federal or cantonal level. These legal acts form the legislation. Second, the scope of some legal instruments can be limited to individual and concrete cases, which are then the 'decisions'. Public authorities, such as public administration or the judiciary, can adopt decisions. To look more precisely at consequences on the question of constitutional justice, we will start with the federal regulations. After that, we will consider the cantonal law and finally we will briefly look at decisions.

#### *<IP_ADDRESS> Federal Regulations*

Federal legal rules can be adopted in the form of statutes and federal ordinances, which are adopted by the Parliament (statutes and ordinances), the Executive (ordinances), or the department and offices of the federal public administration (ordinances). The sources of review are the Federal Constitution but also international law. However, not all appellants have the possibility of invoking all the provisions of the Federal Constitution, as will be seen.

A concrete constitutional review of federal legal acts is undertaken only when they are applied. This means that when the Federal Council or another federal authority adopts an ordinance contrary to the Constitution, individuals can only challenge the unconstitutional act in the framework of a specific case. In other words, other than in cases of action taken by cantons (see below), there is no 'abstract constitutional review' for federal legal rules, at least not one at the disposal of individuals.

Such a conception of constitutional review was adopted in 1874 in the first Federal Judicial Organization Act, and remained unquestioned. This option was not questioned either when a new Federal Judicial Organization Act was adopted in 1943, or in the latter's replacing FSCA of 2005. However, as already mentioned, there is an exception to this absence of abstract review of federal (non-statutory) acts. Cantons can appeal to the Federal Supreme Court (the formerly so-called public law claim) by claiming that a non-statutory act violates the Federal Constitution, in particular that it violates the division of powers between the Confederation and the cantons, thus encroaching on cantonal competencies. Through this form of appeal can cantons trigger an abstract constitutional review of federal acts by the Federal Court (Art. 189 (2) Const.). In this framework, the Federal Supreme Court does verify the constitutionality (and legality) of federal ordinances. In such cases, the Federal Supreme Court generally shows considerable restraint. If the ordinance is based on legislative delegation, the Federal Court limits itself to verifying that the author of the ordinance remained within the framework and limits of the delegation. Furthermore, insofar as the law does not authorize the delegate to derogate from the Constitution, the Federal Supreme Court reviews the constitutionality of the ordinance (for the formula generally used by the Federal Supreme Court see, e.g., the Decision of the Federal Supreme Court of 22 December 1978: ATF 104 Ib 412, 420, 421).

Let us add here that the constitutional review is not only concentrated in the hands of the Federal Supreme Court but also decentralized, meaning that any federal or cantonal authority which is responsible for applying federal legislation in a given case must—or at least may—refuse to apply it if they consider it contrary to the Federal Constitution. The question of constitutionality may thus be raised at any stage when applying the legal rules and before any authority. In the end, this question can even be brought to the Federal Supreme Court in principle by ordinary means of appeal (whether in civil, criminal or public law matters).

### *<IP_ADDRESS> Cantonal Law*

The review of cantonal legislation is significantly more extensive than for federal legal rules in two respects. The review can be abstract as well as concrete and, in both cases, is available to individuals. It should be emphasized, however, that the Federal Supreme Court refuses to review—in principle—the cantonal constitutions, on the grounds that these have already been controlled by the Federal Assembly (Art. 172 (2) Const.) (Mahon 2014: 110, 111).

Concerning the sources of the review, it is first of all based on the Federal Constitution and on international law as well. There is also a conformity control with cantonal constitutional law or at least with certain parts of cantonal constitutional law. It must be added that the cantonal norms have to be in conformity with the federal law (see below).

The constitutional review of cantonal norms is decentralized, meaning it applies to all the procedures applying these norms. When applying a cantonal norm in a concrete case, all authorities, administrative or judicial, must—or at least can—refuse its application if they consider it contrary to the Federal Constitution. For example, an administrative court of a canton will thus refuse to apply a tax law if it considers it contrary to the principle of equality (Art. 8 (1) Const.) or refuse to apply a cantonal law on trade if it deems it contrary to economic freedom (Art. 27 Const.).

The constitutional review of cantonal norms can also be abstract. Indeed, unlike federal acts, a cantonal or municipal act enforced can be appealed for violation of the Constitution outside any cases. In such a hypothesis, the appeal is brought directly before the Federal Court, which judges in principle as the sole and unique body. The review is therefore 'concentrated'. However, the cantons are also free to establish a constitutional court which can review all the laws and ordinances of the canton (Bolkensteyn 2014). Some cantons have done so, including the canton of Jura (Art. 104 Constitution of Jura), the canton of Vaud (Art. 136 Constitution of Vaud), the canton of Graubünden (Art. 55 Constitution of Graubünden), and the canton of Geneva (Art. 124 Constitution of Geneva). The cantons of Nidwalden and Zurich provide such review to a more limited extent (without control of the laws). In such cases, the individuals must first appeal to the cantonal authority and then, on review, take the case to the Federal Supreme Court. An appeal against a cantonal law must be sent to the Federal Supreme Court within 30 days of publishing the cantonal act. Once this period has elapsed, the legal norms can no longer be reviewed in an abstract manner, but it can still be controlled in an application case (concrete control). However, the abstract control does not prevent—with exceptions—the entry into force of the norm.

As cantonal law is applied by the cantons, there is a general right of review in the cantonal judiciary. The remedy must be appealed to in the framework of the application of the norm. Indeed, in concrete cases, when two legal norms are in conflict, the judiciary must determine which one prevails and apply it. Such a power has been derived from the principle that federal laws break cantonal law (Art. 49 Const.) (Mahon 2014: 141–143). Cantons are obliged by federal law to have courts of second instance, meaning cantonal courts or upper courts, and decisions they take can be brought to the Federal Supreme Court if they apply a cantonal norm that violates the Federal Constitution or a constitutional right, by an ordinary means of appeal (*appeal in civil matters* and *appeal in criminal matters* will however be rather rarer than *appeal in matters of public law* insofar as there are none or only few cantonal statutes in these fields). If none of these ordinary appeals are possible, the legislator has created a subsidiary constitutional appeal (Art. 113 FSCA) for which three conditions must been fulfilled: the decision emanates from a cantonal authority of last instance, the appellant invokes a 'violation of constitutional rights', and the appellant must prove a 'legal interest' (Art. 113 to 116 FSCA).

The means of appeal to review a cantonal legal act by the Federal Supreme Court, without any application, is always the public law remedy (Art. 82b (b) FSCA).

### *<IP_ADDRESS> Decisions Taken by Federal or Cantonal Authorities*

Administrative authorities and the judiciary make decisions in which legal rules are applied. Their common feature is that they concern an individual and specific case, and all levels—federal, cantonal, and local authorities can make such decisions. They are the last category to be considered under this section.

Such legal instruments are subject to reviews of their constitutionality regardless of the legal norm on which they are based. It is alleged that the decision itself is violating the Constitution. In other words, it is how the law is applied which is—supposedly—contrary to the Constitution and not the legal norm on which the decision is based. Unlike the decision, the legal norm can be entirely in accordance with the Constitution.

The remedies for the constitutionality review against such acts are those applied in general. As far as the Federal Supreme Court is concerned, as the last instance, the remedies (civil matters, criminal matters, public law matters or subsidiary constitutional appeal) depend on the subject. Appeals are directed either against the cantonal court, the Federal Administrative Court, the Federal Criminal Court or another federal authority (Haller 2016: 153). Nevertheless, individual decisions taken by the Federal Assembly ( e.g. concerning the validity of a popular initiative) are excluded from the constitutional review despite the fact that it creates a conflict with the guarantee of access to the courts guaranteed by the Swiss constitution in Article 29 (Haller 2016: 263).

#### *8.3.2 A Breach of the Rule of Law: The Case of Federal Laws (and of International Law)*

Article 190 of the Federal Constitution provides that 'the Federal Supreme Court and the other judicial authorities must apply the federal acts and international law'. Known as the 'immunity clause' of federal laws, the constitutional provision limits the constitutional review of legal norms in Switzerland. It implies that federal statutes adopted by the Federal Assembly, having found the endorsement—explicit or tacit—of the Swiss people, have to be applied even when they have no constitutional basis or are in conflict with the Federal Constitution. That being said, the Federal Assembly must respect the Federal Constitution when adopting laws. To understand better the scope of such a limitation, we will briefly evoke the reasons behind it and question this breach in the Swiss constitutional justice. We will thereafter describe the extent of the notion of 'immunity' and will finish by presenting its mitigated effect due to international law.

#### *<IP_ADDRESS> Reasons and Questions on the Breach*

This rule also applies to international laws. In this case, it is motivated by the concern of ensuring the international credibility of Switzerland. To put it another way, once an international law has been validly adopted, the binding rules resulting from international obligations must be respected.

The reason for limiting the constitutional review in Article 190 Const. is founded in concepts of separation of powers and direct democracy. The constituent power of 1874 made these two principles prevail over the idea of complete judicial control of legal norms. In short, the idea was that a federal law should rarely be contrary to the Constitution. Most often, it is the opinion of the sense of the Constitution which varies according to interpretations. Finally, there was also no reason to prefer the interpretation of a court to that of Parliament. Such a vision of the constituent power in 1848 occurs at a time where there were very few legislative powers and therefore federal laws.

Nevertheless, the immunity of federal laws has always been debated, and the question of whether it (still) has a *raison d'être* remains controversial today. While many legal scholars advocate to enlarge the constitutional review to federal laws, the political authorities have always been opposed to it, at least in their majority. Two motions in 1923 and 1924 and a popular initiative in 1939 were rejected. At the time of the total revision of the Swiss Constitution, the Federal Council proposed—in the project on the 'reform of the justice system' (Federal Council 1997: 652)—to abrogate, at least partially, such a rule of immunity of the federal laws but the Federal Assembly did not agree. The Federal Council once again proposed a partial lifting of the immunity of federal laws in the framework of the reform of financial equalization and division of powers between the Confederation and the cantons (the so-called "RPT reform" (for "Réforme de la péréquation et de la répartition des tâches"), Federal Council 2002: 2155). The cantons, and only they, would have had the opportunity to challenge federal laws affecting their sphere of jurisdiction, but this proposal too was rejected by Parliament. Two more recent parliamentary interventions proposing the repeal of Article 190 Const. have also suffered a similar fate (Report of the National Council's Legal Affairs Committee 2011: 6707–6724; Federal Council 2011: 6995–7000).

This notable exception inside the constitutional justice seems thus deeply entrenched in the Swiss constitutional beliefs and shows a certain contradiction with the idea of constitutional state, in which all legal norms must absolutely be adopted in conformity with the constitution and be reviewed by an independent court. It is now appropriate to consider more specifically the scope of this concept of 'immunity'.

#### *<IP_ADDRESS> The Scope of the Notion of 'Immunized' Legal Norms*

As stated in Article 190 Const., it is federal laws and international law which are immunized. Considering federal laws, this applies to both ordinary and urgent laws (Art. 165 Const.; Mahon 2014: 275). Other legislative instruments are not open to review by the Federal Supreme Court.

Indeed, as already mentioned, the cantonal constitutions are also immune against the (federal) constitutional review. Such an interpretation has been developed in the case law of the Federal Supreme Court, which often argued that cantonal constitutions are guaranteed by the Federal Assembly (Art. 51 (2) Const.). This Supreme Court jurisprudence is often criticized by legal scholars (Grisel 1996; Töndury 2004). They consider that the review exercised by the Federal Assembly is too summary to bind the courts. The Federal Court has remained unmoved by this critique and continues to refrain from checking whether cantonal constitutions are in conformity with federal law. However, it must be noted that the Court has exceptionally agreed to check the conformity of the cantonal constitution with the rules of federal law that were adopted after the granting of the Federal Parliament's guarantee. In such a case, it is not likely to disavow the Federal Assembly (see Decision of the Federal Supreme Court of 18 Mai 2004: ATF 131 I 126, 130, where the Federal Court notes, despite the almost unanimous criticism among Swiss legal scholars, that there is no need to change the case law).

In addition, when a legal norm inferior (e.g. an ordinance or a cantonal decree) to a federal law, in the hierarchy of norms, repeats or applies an unconstitutional legal rule found in an immunized act (e.g. federal law), the former is also covered by this immunity clause. It is therefore an indirect effect—a reaction, in a way—of this immunity. Indeed, the Federal Court has considered that such a norm is not controllable, because here the review would relate, indirectly, to the immunized act and would come up against the immunity clause. Such is the case of a federal ordinance, adopted by the Federal Council or the Assembly, which repeats or executes the solution chosen by the federal legislators (Mahon 2014: 329, 330; Haller 2016: 261).

#### *<IP_ADDRESS> The Mitigated Effects of the 'Immunity Clause'*

*and the Relationship Between National and International Law* If the immunity clause of federal laws is not ready to be questioned by the political authorities, it has been, however, subject to various attenuations.

The first of these temperaments is that the enforcement authority can, while applying the law, criticize it and even invite the legislator to modify the provision in question. In other words, to use the German adage often used to illustrate this aspect, Article 190 provides an *Anwendungsgebot* but not a *Prüfungsverbot*—an application directive but not a prohibition on scrutinizing it (see Decision of the Federal Supreme Court of 11 December 1996: ATF 123 II 9).

Another form of mitigation of the rule of immunity of federal laws is related to the principle called 'interpretation in conformity with the Constitution'. Concretely, when a law is open to more than one interpretation, the implementing authority gives the preference to the one compatible with the Constitution. Such a margin of discretion can only go so far in an attempt to give a norm a constitutional content, as the authority cannot deviate from the clear text of a legal norm (see Decision of the Federal Supreme Court of 12 July 1993: ATF 119 Ia 241).

Third temperament to the rule of immunity is the fact that a new constitutional provision prevails, if it is sufficiently precise, over an earlier statute. This is logical, as far as prevails the subsequent decision of an organ endowed with a greater legitimacy (the constituent) than that of the legislator.

To conclude on the question of the immunity rule, it must be noted that Article. 190 Const. does not answer the question of which rule prevails in the event of a conflict between a provision of a federal—immunized—law and that of an international treaty—which benefits from the immunity clause provided in Article 190 Const. as well. On this question, Article 5 (4) Const. entrenches the principle of the primacy of international law. It means that a provision of an international treaty prevails on a domestic law provision. This rule must be underlined. Indeed, the Federal Supreme Court has admitted, in some cases, to review federal laws in light of the international law of the European Convention of Human Rights or the UN Covenants (Hertig Randall 2010: 248 et seq.). Such a test is known as the 'control of conventionality', skirting around the limit of the constitutional review of Swiss laws.

### References

Auer, A. (1983). *La juridiction constitutionnelle en Suisse*. Basel: Helbing & Lichtenhahn. Bolkensteyn, A. (2014). *Le contrôle des normes, spécialement par les cours constitutionnelles cantonales*. Bern: Staempfli.

Haller, W. (2016). *The Swiss constitution in a comparative context*. Dike: Zurich/ St Gall.

**Open Access** This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/ by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

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# The Management of Tasks and Services

# The New Model of Swiss Public Management

# *Jean-Loup Chappelet*

### 9.1 Introduction

During the 1980s, the need for academic research and teaching in public administration was fully recognized in Switzerland. The response was the creation of the Swiss Graduate School of Public Administration (IDHEAP) in 1981, interestingly, by the same visionary, Enrico Bignami, who had created a similar institution (the IMEDE, today the International Institute for Management Development or IMD) for the needs of private industry—a sector in which Bignami worked as CEO of Nestlé (Marion 2004).

New public management (NPM) emerged in Switzerland, as in many other countries, in the 1990s. One could even say that Switzerland is one of the main loci, at local, cantonal and federal levels, for experimenting with the many managerial approaches it has inspired (Steiner et al. 2014). The management of Swiss public organizations has evolved considerably under the influence of these new approaches, though not all of these evolutions have been successful (Emery and Giauque 2008).

In 2017, the Swiss Confederation introduced a new management model (known as NMG) to better manage the federal administration and "increase transparency and facilitate steering at all levels" (FFA 2017).

J.-L. Chappelet (\*)

IDHEAP, University of Lausanne, Lausanne, Switzerland e-mail<EMAIL_ADDRESS>
<sup>©</sup> The Author(s) 2019 159

A. Ladner et al. (eds.), *Swiss Public Administration*, Governance and Public Management, https://doi.org/10.1007/978-3-319-92381-9\_9

The goal is to apply this model to all administrative units at the federal level. It is worth exploring this model better, to understand how it is applied in practice, and to consider whether it can inspire new ways of managing not just at the national but also at the cantonal and local levels, much as when NPM was introduced (and when it seemed ubiquitous). Will the NMG become the "Swiss way of management" in the public sector, to borrow the title of a well-known book about the Swiss private sector (Bergmann 2000)?

To answer this question, we first look at the history of NPM-inspired approaches adopted by the federal government, in particular the GMEB (in German, FLAG) model, a precursor to the NMG. We then describe the peculiarities of the NMG, and in what manner it is "new" compared with other Swiss and foreign approaches. Finally, we examine the case of the Federal Office of Topography, known as swisstopo, an office which was both a pioneer in adopting the GMEB model and one of the first to use the new NMG mode.

# 9.2 The GMEB Model and NPM-Inspired Approaches

The first applications (and proliferation) of NPM approaches took place in Switzerland at the local and cantonal levels (e.g., see Delley 1994 or Schedler 1995). In 1997, meaning soon thereafter, the Swiss federal government launched the GMEB, the Management by Performance Mandate and Global Budget program. Its focus was on measurable performance in the federal administration, and on results. After a pilot phase, the GMEB was introduced in about 20 administrative units by 2002 (see FFA 2006 for a program overview and list of the units which used this program at the time).

In 2009, the federal government published a generally positive evaluation of this large-scale experiment. This accorded with commitments made to Parliament during the institutionalization of the model, in turn part of the 2004 revision of LOGA, the Government and Administration Organization Act (in German, RVOG) and the LFC, the Federal Finance Act (in German, FHG). Twelve years later, about one-third of the units in the federal administration were using GMEB, including the Federal Office of Sports, the Federal Roads Office, and swisstopo, the Federal Office of Topography. A total of 23 units used GMEB, about one-sixth of the federal administration and accounting for 30% of its expenditures.

GMEB is based on having each administrative unit involved develop a performance mandate specifying the objectives to be achieved by that unit in the coming years, together with the criteria for attaining those objectives. After the Federal Council and Parliament approve the strategic objectives, the performance objectives and the budget, the mandate is entrusted to the administrative unit. It is to be carried out operationally in the form of an annual performance agreement or a service-level agreement.

Figure 9.1 illustrates how the GMEB model is operationalized. It is inspired by the Schedler model (Schedler and Eicher 2013: 380) which summarizes a series of NPM approaches used in Switzerland. It combines political and administrative management by converting political and strategic objectives into administrative objectives geared to the provision of benefits.

This model allows the department to which an administrative unit belongs, and its head (one of the seven Swiss cabinet members who form the Federal Council, the federal executive), to regularly receive the information needed for judging the extent to which stated objectives have been achieved. If necessary, the department can correct the unit's performance. At the end of the mandate, usually after four years, the department reviews the mandate and objectives, together with the administrative unit. Swiss cabinet members in fact are formally the administrative heads of the ten or so units in the department they are responsible for.

**Fig. 9.1** The GMEB model. (Source: www.flag.admin.ch/f/themen/1- 3-1modell.php)

The transformation of political into administrative rationality which the GMEB (Fig. 9.1) provided nevertheless reached its limits when it came to performance. The GMEB did not go so far as to evaluate the results achieved; we will examine how well the NMG, in place since 2017 (and presented below), is tackling this task.

According to the GMEB website, the following four principles were put into practice (www.flag.admin.ch/e/themen/1-1-4entstehung.php):

A self-assessment conducted in 2009 by the Federal Council (2009: 7152) concluded that units in which the GMEB had been introduced were satisfied and did not want to return to the earlier model. The GMEB allowed them to have a more integrated planning with respect to available resources and tasks, allowing the relevant bodies to carry out controlling.1 The departments responsible for the administrative units were also satisfied and found the GMEB facilitated political management. A new accounting system for the federal government was introduced the same year. The departments found "there was still significant room for improvement" in linking GMEB managed using the new accounting system.

A substantial majority of parliamentarians were also satisfied, though some (Rey 2005) found the GMEB "strengthens the position of the Federal Council and the national administration at the expense of the sovereignty of Parliament over the budget". To better control expenses, the parliamentar-

1According to the Glossary of Terms of Evaluation issued by the Federal Office of Public Health (FOPH) in 2005 (page 5), "Controlling is a central management task which is intended to provide a solid basis of information to assist in decision-making. It guides the entire planning process and management of an organization. It includes the selection, collection, analysis and interpretation of data relevant to the goals and objectives of the organization as well as the procedures put in place to achieve these ends. The analysis takes into account the quantitative and qualitative indicators defined to measure the achievement of the different sets of objectives. 'Controlling' in Switzerland is taken as synonymous with 'performance management'".

ians insisted that the principles of annuity and of specialty2 in the budget lines should be strictly respected. The socialist group in parliament, however, proposed intensifying the use of the GMEB model, in particular to better take into account outcomes expected beyond the outputs themselves. The self-assessment (Federal Council 2009) noted in particular that, beyond cost efficiency, efficacy and economizing/economy in the federal administration were better taken into account, thanks to the GMEB:

Setting targets based on efficiency models has a motivating effect on employees because it allows them to better measure the importance of their contribution to their office's performance. Developing an orientation towards results and objectives is an ongoing task in managing staff and administering, beyond the GMEB model:

In this quote, and in the GMEB approach, we find the well-known trio of efficiency, efficacy and economy, the "triangle of management control" (DIRE 2002) which link objectives, resources (or inputs) and services (or outputs, achievements) (see Fig. 9.2).

The GMEB reflects a general trend observed in integrated models of public management at the turn of the century; they link these three peaks/ vertices of the management control triangle. Service-oriented and outputoriented models are now widely used in Swiss cantonal administration (*wirkungsorientierte Verwaltung* in German), and they are used abroad. They are very similar to management models in the private sector, except

<sup>2</sup> "Budgetary specialty" is one of the main public finance principles (along with annuity, unity, universality and sincerity). It consists of ensuring that each budget line item has a clear purpose; the executive or the administration cannot modify it without legislative approval.

**Fig. 9.2** The triangle of performance control

that in private companies, managers do not have to share responsibility with executives and legislators, or even with citizens (see the "Public Management Tetrahedron" (Chappelet 2013) which links the four sides of this solid to the four main stakeholders of public management: public managers, executives, MPs, citizens).

The GMEB five main characteristics can be summarized as follows:

Following the self-assessment of the GMEB in 2009, Parliament agreed with the Federal Council in 2010 that the GMEB model should be used in the entire federal administration. It would be recast as a new model more focused on results and performance, and be better linked to globally allocated financial means or resources. "From this perspective, planning and reporting will be redefined from the ground up to conform to an integrated, results-based approach. Financial means (resources) and performance will be brought together in a visible manner, with global appropriations for the particular domain of the administration. The political leadership will focus more on medium-term objectives; the annual budget will remain the decisive financial benchmark" (Federal Council 2013a).

# 9.3 The New NMG Model

Following the introduction of a new model for accounting at the national level, it was felt necessary to improve budgetary management by reorienting it not just to deliver services and assess efficiency and efficacy but to provide services or benefits according to the political objectives to be achieved. In other words, the idea was to engage in performance-oriented budgeting (and auditing) in the manner increasingly practiced in private companies. This approach, called the new management model for the Federal Administration (in French NMG and in German, *Neues Führungsmodell für die Bundesverwaltung* or NFB), was introduced in 2017.

It is based on the GMEB and augments the scope of the performance contract and of the traditional budget by adding a PITF, an Integrated Task and Financing Plan. This is a new way of presenting the budget of a given unit according to groups of services that the administrative unit provides or produces, along with a global budget for each group of services. It also states the political objectives to be achieved, as well as the indicators and target values for the next four years. A department and the administrative units that comprise it then agree on a performance contract. This contract sets out the operational objectives for projects, defines the groups of services to be provided or produced (in principal, from one to maximum of five), and these are accompanied by two global budgets, one for outlays, the other for income.

In other words, the strategic/political aspect of the services provided is included in the budget through a PITF—which allows for better control by Parliament—while the operational aspect is included in the annual performance contract agreed upon between a given unit and its department which allows for better control by the (political) head of the department. Under the GMEB, the performance mandate combined information about political and operational steering; the NMG separates them better.

The NMG approach is based on five documents or instruments (Federal Council 2013b):

Figure 9.3 summarizes the relationship between these different NMG management and planning instruments (FFA 2017: 2). The NMG insists that operational tasks be politically steered through the annual budgetary process.

As a basis, the NMG needs a catalog of the services provided by all administrative units. The achievements can be described on the basis of quantity, quality, timeliness, cost, or how satisfied the recipients of a service are. Each administrative unit should identify one to five groups it serves; the federal administration thus will have about 140 such groups in all. This level of detail is to ensure that political actors will not get lost in too long lists of articles and services, and to ensure that administrative managers can still recognize their activities and effectively implement the directives of the political actors. (Federal Council 2013b)

**Fig. 9.3** Relationship between NMG management and planning instruments

Introducing the NMG was an objective of the legislative session of 2011–15. To facilitate its implementation in 2016–17, the Federal Finance Administration (FFA) made online training available, based on what was learned from introducing PITFs or global budgets at the cantonal level in the Aargau, Bern, Graubünden, Lucerne, Solothurn, Zug and Zurich.

The NMG model should make it possible to abandon the running of two systems in parallel (the new GMEB in 20 units and the old/traditional system in all the other units) and create an identical, homogeneous management model throughout the federal administration. It should improve the units' room for maneuver and improve transparency. In terms of savings, under certain conditions, the units will be authorized to accumulate financial reserves, as in the GMEB model. Ultimately, this will be a shift from a management culture based on resources (e.g., GMEB) to a culture based on goals and results (e.g., NMG).

This evolution can be schematically represented by a "performance diamond" (see Fig. 9.4) where two new dimensions of performance appear: effectiveness and allocative efficiency.

Effectiveness, which is to say the relationship between services and outcomes, measures the real effects, or the results a public policy actually has on the societal problem to be solved (Pollitt and Bouckaert 2004: 17). Allocative efficiency, which is to say the ratio between inputs and outcomes (Knoepfel et al. 2006: 256), is about optimally allocating means or

resources to obtain desired results. Efficiency (sometimes called "technical efficiency" or "productive efficiency"), by contrast, focuses on the unit cost of services (if possible, kept as low as possible). The diamond represents the two dimensions of public performance: output management (top triangle) and outcome management (bottom triangle).

The NMG model is the apex of a number of reforms (NGP, NPM) introduced at the federal level since the late 1990s to better monitor administrative objectives, performance and outcomes. At the beginning of the twenty-first century, and after LOGA was adopted in 2004, the GMEB model was a first step in this direction, tried in a few federal units.

Other changes were also taking place at about the same time. A "debt brake"3 was enacted. A new model of accounting introduced in 2009 transformed the management of the federal budget management. IT management, as part of an evolving technology, has also been profoundly

3The debt brake is a budgetary device intended to guarantee balanced accounts over a complete business cycle. Adopted in 2000 in Switzerland at the national level and implemented as of 2003, it serves as a model for Germany as of 2009. It aims to curb the growth in debt as well as curb structural budget deficits.

changed. Finally, by abolishing the status of federal civil servant and introducing salary elements related to benefits, the formal status of federal employees has also been altered (see the chapter by Yves Emery).

The efficiency and efficacy objectives highlighted in GMEB have also been pursued through reforms such as clearly separating federal from cantonal tasks, or by transferring federal tasks to private sector companies or more autonomous para-public agencies. The result-oriented NMG model should allow greater progress to be made in managing the federal "household". Since 1999, Art. 170 of the Swiss Constitution has called on the Parliament "to ensure that federal measures are evaluated with regard to their effectiveness".

### 9.4 The Case of Swisstopo

The Swiss Federal Office of Topography (swisstopo) is responsible for the description, representation and long-term availability of spatial geodata, including national maps, altitude and landscape models, satellite images and orthophotos4 of the Swiss territory. Swisstopo is a unit (office) of the Federal Department of Defense, Population Protection and Sports (DDPS). It was selected as a pilot project office for trying out the GMEB model when it was first launched in 1997. In 2017, it was also one of the first federal offices to use NMG.

As compared to the GMEB, the application of the NMG in swisstopo introduces new elements. It comments on contextual factors and the results to be achieved globally (e.g., to guarantee the provision of Swiss geodata), provides indicators with deadlines, has a section on the strategy and important projects conducted by swisstopo and provides a new level of detail about services, staff and IT. The part of the 2018 Swiss national budget relevant to swisstopo, which includes a PITF, begins with a list of current projects. It then provides an "overview of the profit and loss statement and of the investment account (including benefit entitlements)" for 2016 and 2017, together with the budget for 2018 and financial plan projections for 2019–21, accompanied by a commentary (FFA n.d.). Swisstopo sells various services and thus has significant income (more than 23 million CHF in 2017, with costs of nearly 90 million), though investments have been very low in 2017.

<sup>4</sup>An orthophoto is an aerial digital image, in color, of a landscape taken so as to neutralize the influences of camera inclination and terrain relief.

A number of pages in the budget are dedicated to the groups of services (outputs) which are produced by swisstopo. For 2018, as in 2017, swisstopo lists three groups of services:

A page in the PIFT describes each of these, giving the basic mandate along with comments relevant to the group of services. It is followed by a commented table of operating and investment income and expenses, a table of objectives (broken down by services) with the criteria to be achieved, accompanied by contextual information with financial figures. Figure 9.5, as an example, gives all the objectives set in the 2018 PIFT, including information about criteria and performance by unit of measurement for the first group of services (topography and cartography).

The PIFT document concludes with the items relevant to the federal budget, namely income and expenditure. These are explained and compared to the previous three years. Projections for the 2018–21 period are also provided, which allows for planning over four years. In the depart-

**Fig. 9.5** Swisstopo group of services 1: objectives and contextual data. (C = accounts, B = budget, PF = financial plan)

ment of defense—where swisstopo was formally placed—performance contracts remain on an annual basis. As swisstopo makes specific products or services (such as maps, models or orthophotos) available, these products or services can be more readily quantified and enumerated for the purposes of the budgetary process. A qualitative indicator (customer satisfaction) is also measured.

The financial data come from SAP accounting software. Reporting is done annually, as part of the federal budgeting process, and quarterly within the department. Parliamentary committees (Finance Committee, Management Committee, and the specialized Committee, which in the case of swisstopo is the Committee on Education, Science and Culture) provide political guidance. Meeting—or not meeting—the stated objectives do not (yet) carry the practical consequences as in other countries where incentives are offered—or sanctions levied—in case the stated criteria are exceeded—or not met.

The NMG model emerged from the strong desire to better link the federal budget with the services or benefits provided and with the final results obtained by the administrative units. Output needed to be linked to outcome. It is reminiscent of the objectives set out in the 2001 French constitutional bylaw on budget acts (known as LOLF) which wanted to modernize the management of the French administration and set quantified objectives for the various ministries. The goal was to move from a budget based on resources to a public administration managed based on results, even if this goal was difficult to achieve (Rochet 2010; Petitbon and Ledenvic 2011).

### 9.5 Conclusion

This chapter has looked at the NMG model in the Swiss federal administration, from its origins to its introduction across all federal-level administrative units in 2017, including in swisstopo. Beyond the public services to be provided, the NMG emphasizes the results to be achieved. This emphasis is both operational and political (or strategic), and stands in relation to the main mode of governmental action, namely its budget. That budget also determines the number of posts which can be funded to achieve the stated objectives, both through services and by specifying expected results.

In addition to the classic criteria of efficiency, efficacy and economy, an analysis of the NMG indicates the importance of effectiveness and allocative efficiency (see Fig. 9.4), aspects which should more often be taken into account by managers in public administration positions.