๐ Tender Overview
The Committee on Political Institutions of the Council of States (CIP-E) proposes to codify the Schubert case law of the Federal Court, in order to clarify the relationship between federal laws and the agreements relating to the internal market between Switzerland and the EU.Federal laws must be decisive for the Federal Court and other authorities responsible for applying the law, when the legislator has knowingly provided for a derogation from an internal market agreement concluded with the EU.The CIP-E is putting two variants out for consultation: the first aims to include the Schubert case law in the Federal Constitution;the second aims to include it in procedural laws.
ContentThe text of the CIP-E parliamentary initiative 26.425 (Amendment of the Constitution concerning Bilateral III), the referendum part of which has already been adopted by the Council of States during the autumn 2026 session, contains a second part, relating to the codification of the Schubert jurisprudence of the Federal Court.At its meeting of June 29 and 30, 2026, the committee decided to develop a separate project on this subject and to put it for consultation. At its meeting of October 15, 2026, the CIP-E took up this project by 7 votes to 3 and one abstention and decided to send two variants for consultation.The first, supported by 6 members of the commission, concerns an anchoring of Schubert jurisprudence in the Constitution.The second, supported by 5 members of the commission, provides for an anchoring of this case law at the level of procedural laws.A minority rejects the entry into the matter, considering that a codification of the Schubert practice is not necessary and could even prove counterproductive. Under the Schubert jurisprudence, when the Federal Assembly knowingly enacts a law going against Switzerlands international obligations, it is this more recent law which is decisive in the eyes of the Federal Court.This practice, however, has a certain number of exceptions, particularly when the international obligations concerned relate to the protection of human rights or free movement.The planned changes - whether to the Constitution or to the laws - are intended to dispel doubts about the applicability of the Schubert case law with regard to the relationship between federal laws and internal market agreements between Switzerland and the EU.The federal legislator must have sufficient room for maneuver at the national level to be able, if necessary, to deviate from certain agreements and assume the consequences in terms of international law. The consultation period runs until December 4, 2026, so as to be able to submit the project to the Council of States during the spring session 2027. The documents can be consulted by clicking on the linksfollowing:https://www.parlament.ch/fr/organ/commissions/commissions-thematiques/commissions-cip/rapports-consultations-cip/vernehmlassung-spk-26-425Consultation procedures in progress |Fedlex.The committee met on October 15 and 16, 2026 in Bern, under the chairmanship of State Councilor Heidi Zgraggen (M-E/UR).
