Summary

The planned EU framework agreements of Switzerland raise a central constitutional law question: Is a majority of voters required for the vote, or additionally a majority of cantons (cantonal majority)? An expert opinion from the Federal Office of Justice argues against the application of the cantonal majority, while constitutional law scholars such as Andreas Glaser hold the opposite position. The debate touches not only on formal procedural questions, but also on material compatibility with the Federal Constitution – particularly because of the dynamic legal adoption and its effects on cantonal competences and parliamentary rights.

Persons

  • Andreas Glaser (Professor of State Administration and European Law, University of Zurich; Director Centre for Democracy Aarau)
  • Jean Schappi (Moderator, Bern Einfach Podcast)

Topics

  • Cantonal majority in popular votes
  • Constitutional character of international treaties
  • Dynamic legal adoption from EU law
  • Parliamentary capacity to act
  • Federalism and cantonal competences

Clarus Lead

Switzerland is negotiating new EU framework agreements that provide for automatic adoption of future EU legal acts – a system that fundamentally changes previous voting practices. An expert opinion from the Federal Office of Justice recommends dispensing with the cantonal majority, but constitutional law scholars question this. The central tension: The dynamic legal adoption affects competences of the cantons and parliament so significantly that constitutional status should apply – and thus also the cantonal majority.

Detailed Summary

The federal authorities' expert opinion argues formally: Only cases expressly mentioned in the Federal Constitution (constitutional amendments, accessions to international organisations) require the cantonal majority. The 2021 rejected motion to expand this rule is interpreted as a parliamentary decision to end the previous practice of the cantonal majority for important state treaties.

Glaser fundamentally contradicts this interpretation. He shows on the basis of parliamentary debates that the 2021 rejection should not prohibit the practice, but only reject the specific proposal. The majority of arguments were that the previous practice should be continued – parliament wanted to preserve decision-making authority without enshrining it constitutionally.

The core of the debate is material: Does the new treaty package have constitutional character? Glaser identifies several indicators. The dynamic legal adoption has the strongest effect. Unlike the EEA Agreement (where a standard model applied to several states), this is a Switzerland-specific solution that effectively disempowers parliament: EU legal acts are adopted directly without parliament or cantons being able to make amendment proposals. This violates the constitutional idea that parliament can freely shape national laws.

In addition, there are material aspects: The mass immigration relationship could be affected by expanded freedom of movement (reduced waiting periods, family reunification). Subsidy rules in the electricity agreement and land transport require federal competence, which is currently not available. A new arbitral tribunal would bind Swiss authorities – an institutional shift without clear coordination rule to the Federal Court.

Key Statements

  • The cantonal majority question is not merely formal, but depends on whether the new treaties materially affect the Federal Constitution.
  • The dynamic legal adoption significantly restricts parliament and cantons – an indication of constitutional character.
  • Parliamentary freedom of action is dissolved: EU legal acts are adopted 1:1 without national adaptation.
  • The 2021 voting result is overinterpreted by the Federal Office of Justice; the majority wanted to preserve flexibility, not prohibit the practice.
  • From a substantive legal perspective, conflicts arise with immigration, competence and independence provisions of the constitution.

Critical Questions

  1. Source Validity: The Federal Office of Justice bases its conclusion (no cantonal majority needed) on the rejection of the 2021 proposal. But is this rejection correctly interpreted – as a prohibition of the previous practice, or only as a rejection of this specific version?

  2. Conflicts of Interest: The Federal Council expects closer EU relations from the new agreements. Could this interest situation influence the legal assessment (no cantonal majority needed) – particularly since the Federal Office of Justice is subordinate to the Federal Council?

  3. Causality: Glaser argues that dynamic legal adoption necessarily leads to constitutional status. But cannot Switzerland theoretically say "No" – does it not remain sovereign, even if compensatory measures threaten?

  4. Alternatives: Why is it not discussed to limit dynamic legal adoption to a few core areas or to create opt-out clauses, instead of changing the entire practice?

  5. Feasibility: How can voters make an informed decision if they do not know what compensatory measures the EU will take if they say "No"?

  6. Side Effects: If EU legal acts are henceforth adopted quasi-automatically, Swiss parliament loses a core right – to debate and amend laws. How will this be perceived in the political public?

  7. Procedural Justice: The Federal Council remains silent about the expert opinion of the Federal Office of Justice in its explanatory report. Will the message take a position, or will the legal dispute be withheld from the public?

  8. Precedent: If the cantonal majority is not applied this time, even though constitutional character exists, will this be used in future as a precedent to pass other important treaties without the cantonal majority?

Further News

  • The Federal Council will publish its message on the EU framework agreements «very soon» and clarify whether it agrees with the expert opinion of the Federal Office of Justice or maintains its previous stance (cantonal majority permissible).
  • In parallel, it is expected that the electricity agreement will come to a separate vote – the cantonal majority question could be relevant there as well.

Bibliography

Primary Source:

«Bern Einfach Special: EU Framework Agreements and Cantonal Majority Debate» (Audio Interview with Andreas Glaser) – https://audio.podigee-cdn.net/2375594-m-fef67c55368c5ee2778570adae9f6d89.mp3?source=feed

Verification Status: ✓ 2026-03-01

This text was created with the support of an AI model.
Editorial Responsibility: clarus.news | Fact-Check: 2026-03-01