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The Three Most Important Features of Switzerland's Legal System By IALS Conference Learning from Each Other: Enriching the Law School Curriculum in an Interrelated World ___________________________________________________________________________________ The Three Most Important Features of Switzerland’s Legal System By Franz Werro1 and Marjolaine Viret2 A Federal State surrounded by the European Union Switzerland is a federal union of 26 federating States called “Cantons” and a federal power, hereinafter referred to as “the Confederation”. Even though Switzerland is located in the centre of Europe, and even though its ties to the EU have become stronger and stronger over the years, it is not (yet!) a member of the EU. Ever since the Swiss refused to enter the European Economic Space in 1992, Switzerland has chosen the way of bilateral negotiations with the EU, which resulted in the conclusion of two Bilateral Treatises. In practice, however, most of the recent legal developments in Switzerland are to some extent conditioned by the evolution of the EU legislation. Nowadays, one cannot gain a true picture of the Swiss legal system without taking into account its global context, and in particular the Swiss-EU interactions. In turn, the Swiss experience could be of interest to Member States to cope with the difficulties the EU encounters in dealing with its cultural diversity. The basic features of the Swiss federal system are defined in the Swiss Federal Constitution (“Cst”)3, which lays out the institutional structure of the State, the respective powers of the Cantons and the Confederation and mechanisms for coordinating the two levels. The basic concept is that of federalism, which is not only a rule governing State organisation, but also a fundamental political principle, deeply rooted in the Swiss legal culture4. This principle has lost none of its importance under the new Federal Constitution revised in 20005. The main features can be summarized as follows6: 1. The Cantons’ Autonomy: the Cantons are sovereign insofar as their sovereignty is not limited by the Federal Constitution (art. 3 i.c. with 42 and seq. Cst). Within the boundaries set by the Federal Constitution, the Cantons are autonomous in administering their own political and financial affairs. Each Canton is free to choose its institutions and has its own constitution. The Confederation must respect this autonomy (art. 46 and seq. Cst), provided the organization chosen fulfils basic requirements of democracy (art. 51 Cst). Each Canton is also fairly independent in generating income in order to cover its own expenditures by levying taxes, unless the Confederation is given by the Federal Constitution the exclusive 1 Professor of Law at the University of Fribourg (Switzerland) and at the Georgetown University Law Center, Washington, DC (USA). 2 Attorney-at-Law (non-practising), Research Assistant at the University of Fribourg (Switzerland), PhD cand. 3 The Swiss Constitution is available in English (and other languages) under www.admin.ch/org/polit/00083/index.html?lang=en, but only in its version as per October 2002. 4 BUSER Denise, p. 8. 5 BUSER Denise, p. 12. 6 THALMANN Urs, p. 65. 231 IALS Conference Learning from Each Other: Enriching the Law School Curriculum in an Interrelated World ___________________________________________________________________________________ right to levy a particular tax type (art. 134 Cst)7. 2. The Subsidiarity Principle: The Cantons are competent for any task that is not explicitly allocated to the Confederation by the Federal Constitution (art. 3 and 42 Cst) 8. In order for the Confederation to enact legislation in an area that is not enumerated in the Constitution, the powers to act must first be transferred to the Confederation by constitutional amendment. Moreover, the implementation of federal law is left to the Cantons where the Constitution does not provide otherwise (art. 46 Cst). 3. The Cantons' Rights of Participation9: as a compensation for the powers transferred to the Confederation, Cantons have constitutionally enshrined rights to participate in the decision-making process on the Federal State level (art. 45 Cst). The Cantons have both a proportional and an equal share in the central legislator. The Swiss Federal Parliament – the supreme legislative authority – consists of two Chambers with equal powers (art. 148 Cst): the House of Representatives ("Conseil national"), where each Canton’s representation is proportionate to its population, and the Senate ("Conseil des Etats"), where each Canton has an equal right to elect two representatives according to its own electing modalities (art. 150 Cst). Other rights of participation are: i. the Federal Constitution can only be amended if both a majority of the People and a majority of Cantons accept the amendment (art. 140 and 142 Cst)10; ii. each Canton may submit to the Federal Parliament a proposal for an amendment of the Federal Constitution (art 160 Cst); iii. eight Cantons may oppose to the Parliament enacting a federal statute by requesting that the modification first be submitted to the vote of the People (right of referendum, art. 141 Cst). Given the importance of the Cantons’ collaboration when it comes to enforcing and implementing federal law, the Confederation takes particular care to involve the Cantons into the legislative process in order to avoid any subsequent difficulties (art. 45 and 55 Cst). 4. The Loyalty Principle: this rule commands that the Cantons and the Confederation shall grant each other support and assistance in the fulfillment of their tasks. The Confederation and the Cantons are under a mutual duty to cooperate in the State’s best interest (art. 44 Cst). The Cantons must abide to federal law (art. 49 Cst) and have a constitutional obligation to implement federal statutes and to enforce federal law and decisions by setting up adequate administrative and judiciary authorities11. The Cantons are politically still very influential and prompt at defending their sovereignty, which means that, in practice, the central authorities will often hesitate before making decisions that might not find support in 7 The Confederation has introduced various mechanisms of compensation to ensure that part of the financial means is reallocated in a fair way among the Cantons, cf. art. 46 Cst and THALMANN Urs, p. 95. 8 This basic rule governing power allocation rests on the thought that a matter should be entrusted to the lowest State level that is capable of properly performing the task concerned; cf. MENGISTU Arefaine, p. 163. 9 LINDER Wolf, p. 146 and seq. 10 The same applies to important international treaties, e.g. adhesion to a supranational community. 11 FLEINER Thomas, p. 106. 232 IALS Conference Learning from Each Other: Enriching the Law School Curriculum in an Interrelated World ___________________________________________________________________________________ a majority of Cantons12. Since the foundation in 1993 of the “Conference of the Cantonal Governments”, the dialog and collaboration among the Cantons has been getting more and more important13. Federalism is not a panacea. The decisional procedures are long and burdensome. Nowadays, federal law has an effect on almost all legal areas, so that it becomes increasingly difficult to distinguish federal from cantonal powers14. Full implementation by the Cantons may take years and the result may vary significantly from one Canton to another. Those discrepancies have a detrimental effect on legal predictability and procedural efficiency. The Cantons’ reluctance to abandon their local peculiarities may impede the circulation on the Swiss market15. Some obstacles have been eliminated only very recently as an indirect effect of the Bilateral Treatise I with the EU (e.g. for the free circulation of the lawyers). The drawbacks of the system are particularly striking when one looks at the judiciary. Up to this day, each Canton is free to organize its own judiciary system, according to its own rules of proceedings. Each Canton has its own courts, with local denominations and allocation of powers (art. 191b Cst)16. The resulting complexity makes it delicate for attorneys to intervene before a judge outside their home Canton. More peculiarly, this is true even for areas in which the power to enact substantial law has been transferred to the Confederation, for example the whole area of civil law, as each of the 26 Cantons has its own law of civil procedure. The situation is made yet more intricate by the fact that the distinction between substantial and procedural law is not always evident17. With the growing importance of international law (e.g. the European Convention on Human Rights, “ECHR”) and the increasing weight put on procedural guarantees, recent federal statutes include a number of procedural rules imposing minimum standards onto the Cantons (e.g. the right to be heard)18. Over the past decade, with the argument of ensuring a uniform application of federal substantial law, federal rules have become more and more intrusive (e.g. rules about the burden of proof)19. This forces the Cantons to adapt their procedure in a piecemeal way and causes difficulties of harmonization between federal and cantonal law. The politicians have recognized the need to take a global action and launched an ambitious plan of reform of the judiciary. Thus, in 2000, the Federal Constitution (art. 122 Cst) has been amended to give the central State the power to enact uniform rules of civil procedure. The organisation of the civil jurisdictional system, however, will basically remain within the power of the Cantons, which could well create new problems of delimitation. A draft uniform Code of Civil Procedure has been submitted to the 12 FLEINER Thomas, p. 109. 13 SCHWEIZER Rainer J., p.668. 14 BUSER Denise, p. 10. 15 MACH Oliver, p. 355. 16 FLEINER Thomas, p. 115. 17 AUBERT Jean-François, ad art. 122, n° 10. 18 WALTER Hans Peter, p. 314. 19 ZIMMERLI Ulrich, p. 311 ; AUBERT Jean-François, ad art. 122, n° 20. 233 IALS Conference Learning from Each Other: Enriching the Law School Curriculum in an Interrelated World ___________________________________________________________________________________ Parliament’s scrutiny in June 200620.
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