Summary

The Federal Government expects that the Federal Court will change its case law on Schubert practice and henceforth allow Switzerland to deviate from EU treaties. Two potential conflicts are central: a planned protection clause limiting immigration and the controversial childcare law. The Federal Court rejected the Schubert practice in 2015 and has since given the freedom of movement agreement absolute priority – but the new EU treaty situation could change this. The question of whether national law or international treaties take precedence remains unresolved and is crucial for the credibility of the entire treaty package.

Persons

Topics

  • International law vs. national law
  • Freedom of movement agreement (FMA)
  • Regulatory conflicts between EU treaties and Swiss law
  • Arbitration proceedings and protection clauses
  • Federal Court case law

Clarus Lead

The Federal Government is betting that the Federal Court will abandon its previous practice and henceforth place national laws above EU treaties if the legislature deliberately decides to do so. This so-called Schubert practice was abandoned in 2015 but is to be revived through the new EU treaties. Specifically, there are two scenarios: the planned protection clause limiting immigration and the childcare law, which pays allowances only domestically. Both could be challenged in court – with unclear outcomes.

Detailed Summary

The central uncertainty concerns regulatory hierarchy: Do EU treaties take precedence over the Federal Constitution and national laws? The Federal Court long assumed precedence of international law, but under Schubert practice it accepted deliberate deviations by the legislature. In 2015, it reversed this doctrine and declared it "no longer applicable" for the freedom of movement agreement. Since then, the FMA has had absolute precedence.

The Federal Government is planning a new protection clause in the Foreign Nationals and Integration Act that would allow Switzerland to unilaterally implement immigration measures – such as withdrawing residence rights for unemployed EU citizens – even if the arbitration court does not approve them. In parallel, the childcare law was enacted, which deliberately does not extend nursery allowances to EU countries. According to the Federal Government's view, both regulations violate the FMA but could be lawful if the legislature deliberately decided on them.

The dilemma: If an unemployed German or French person who does not receive a nursery allowance appears before a Swiss court, the Federal Court could apply the FMA on the basis of its current practice and strike down both measures. The Federal Government trusts that the new treaty situation will make the court reconsider, but expresses itself in conditional terms.

Key Points

  • The Federal Government hopes for a return to Schubert practice, whereby national laws can take precedence over international law if deliberately decided
  • The protection clause and the childcare law could fail in court if the Federal Court maintains its strict line
  • The Federal Court gave clear signals in 2015 and 2022 that Schubert practice is "no longer applicable" – a reversal is uncertain
  • Two SVP departments unsuccessfully demanded a Schubert clause in the Constitution to create clarity
  • The institutional question remains unresolved and endangers the credibility of the entire EU treaty package

Critical Questions

  1. Evidence/Data Quality: On what basis is the Federal Government's expectation supported that the Federal Court will abandon its established practice from 2015/2022? What new arguments should bring this about?

  2. Conflicts of Interest: To what extent are the Federal Government's hopes for a Schubert return driven by politically pushing through the EU treaty package rather than creating legal clarity?

  3. Causality/Alternatives: Why did the Federal Government not – as Parmelin and Rösti demanded – preventively create a constitutional clause instead of relying on an uncertain court ruling?

  4. Feasibility/Risks: What are the consequences if the Federal Court does not reactivate Schubert practice? Will the protection clause and childcare law become unlawful and destabilize the treaty package?

  5. Source Validity: The Federal Court has not commented on the consultation and has ignored parliamentary initiatives on this point – how binding are indirect signals (behind-the-scenes conversations) really?

  6. Side Effects: Could a return to Schubert practice lead to a wave of lawsuits by EU citizens challenging national measures?

Source Directory

Primary Source: EU Treaties: The Federal Government expects the Federal Court to change its practice – NZZ, 23.03.2026

Verification Status: ✓ 23.03.2026

This text was created with the support of an AI model. Editorial Responsibility: clarus.news | Fact-Check: 23.03.2026