Background
see 4.1
Summary
Priority of the Agreement on the Free Movement of Persons between Switzerland and the EC over the Federal Constitution: ruling of 26 November 2015 in the case A.A. and B.A. v the Migration Office and Security Directorate of the Canton of Zurich (BGE 142 II 35)
In response to a popular initiative adopted by a narrow majority of the Swiss people and Cantons, the Federal Constitution was amended on 9 February 2014 to the effect that the number of residence permits issued to foreigners in Switzerland would be limited by imposing annual maximums and quotas, in alignment with Switzerland’s overall economic interests and taking into account the priority of Swiss citizens. Conflicting international treaties had to be renegotiated and amended within three years. If there were no implementing legislation after three years, the Federal Council is to issue temporary implementation orders. The substantive provisions of his amendent (other than its transitional arrangements seeking the renegotiation of treaties) conflict with the Agreement on the Free Movement of Persons between Switzerland and the EU. In an appeal to the Federal Supreme Court, a Dominican national who is mother of a son with German nationality sued against non-renewal of her residence permit due to her being considerable dependent on social assistance over many years. This constellation gave the Federal Supreme Court opportunity to clarify the relationship between the new constitutional provision and the Agreement on the Free Movement of Persons between Switzerland and the EU. Upfront, the Federal Supreme Court denied direct applicability of the constitutional provision because of the wording of transitional rules that it was to be implemented through negotiation with the contracting parties and by the legislature. The Court found that a more restrictive interpretation of the Agreement on the Free Movement of Persons with regard to the constitutional provision and failure to comply with the relevant case law of the ECJ would violate the obligation pacta sunt servanda under international law that is also recognized under customary law. By signing the Agreement on the Free Movement of Persons Switzerland is entitled to sectorally participate in the European internal market. Such participation only functions when there is a common understanding of the relevant legal norms and the Federal Supreme Court and ECJ do not deviate from a shared understanding of terms and concepts used without objective reasons. The “Schubert practice” per BGE 99 Ib 39 does not apply to the Agreement on the Free Movement of Persons (BGE 133 V 367). The convergence of legal systems through sectoral participation in the internal market equally takes precedence over divergent national law in EU law. If the implementation of the article of the Constitution by the legislature creates a collision of norms with the Agreement on the Free Movement of Persons, the Agreement enjoys primacy in legal application.
