June 4, 2026

Author: Lawyer Enrico Germano

Switzerland represents a unique case in the European landscape, characterized by the coexistence of a strong tradition of direct democracy and growing interdependence with the European Union. This relationship generates legal and political tensions that are particularly evident in the current context, marked by the negotiations for the so-called “Bilateral Agreements III.”

On the one hand, direct democracy is one of the founding elements of the Swiss legal system. Through instruments such as popular initiatives and referendums, the people exert a direct influence on legislative processes, including constitutional revision. A prime example is the 2014 initiative against mass immigration, which imposed restrictions on the free movement of people, creating tension with the bilateral agreements concluded with the EU. It should be recalled that on 9 February 2014, the Swiss people and cantons had accepted the popular initiative “Against mass immigration” with 50.3% of the votes and a majority of 17 cantons.

On the other hand, Switzerland is closely integrated with EU law through a dense network of bilateral agreements. These agreements often imply the alignment of domestic law with European law, sometimes through dynamic transposition mechanisms. This raises significant questions regarding sovereignty and democratic legitimacy.

The tension between these two poles emerges when popular decisions conflict with international obligations. The case of mass immigration is significant: the legislature adopted an implementing solution compatible with the Agreement on Free Movement, thus avoiding a formal violation of international law.

From a case law perspective, the Federal Supreme Court has developed fundamental principles regarding the relationship between domestic law and international law. In particular:

In its ruling in ATF 99 Ib 39 (Schubert) of March 2, 1973, the Federal Supreme Court held that a subsequent federal law could prevail over an international treaty if the legislature has knowingly intended to derogate from the latter (the “Schubert” principle).

This principle was limited in Decision ATF 125 II 417 of July 26, 1999, in which the Federal Supreme Court affirmed the primacy of international law, particularly when fundamental obligations are at stake.

A further development is found in Decision ATF 139 I 16 of October 12, 2012, in which the Federal Supreme Court reaffirmed the importance of respecting the European Convention on Human Rights (ECHR), even in the presence of conflicting constitutional provisions. In this decision, a Macedonian citizen, born in 1987, entered Switzerland in 1991 for family reunification. He was granted a permanent residence permit. In 2010, he was sentenced to 24 months in prison for drug trafficking, following which the cantonal authority (Thurgau) revoked his permanent residence permit and ordered his expulsion from Switzerland. The Federal Court had ruled that the revocation was contrary to, among other things, Article 8 of the ECHR.

In examining the proportionality of the measure, the Federal Court noted that the individual had been in Switzerland since the age of seven, where he had completed his entire education and apprenticeship. He was 19 years old at the time of the crimes and had not committed any further crimes since his conviction. The judges also considered that the individual had not played a leading role in the drug trafficking, but had acted out of naivety due to his age and lack of judgment. According to the Federal Supreme Court, Article 8 of the ECHR applies. Article 121, paragraphs 3-6 of the Federal Constitution of the Swiss Confederation (the referral initiative) is not relevant in the present case because this provision is not directly applicable, being in conflict with existing laws and international law. Article 121, paragraphs 3-6 of the Federal Constitution must therefore be implemented by the legislature and do not override fundamental rights or the guarantees of the ECHR.

This development in jurisprudence shows how the Schubert principle is now applied restrictively, while the tendency to ensure the prevalence of international law, especially in matters of fundamental rights, is strengthening.

In the context of current negotiations with the EU, efforts are being made to institutionalize these balances through dispute resolution mechanisms and uniform interpretation of agreements. However, these instruments are perceived by some scholars and politicians as a limitation of sovereignty and direct democracy.

In conclusion, the relationship between the European Union and direct democracy in Switzerland represents a delicate balance between international openness and self-determination. The jurisprudence of the Federal Supreme Court demonstrates an evolution toward greater integration of international law, while maintaining some scope, albeit limited, for the prevalence of domestic law. The central challenge remains reconciling the will of the people with international obligations in an increasingly interconnected legal system.