Schubert practice
It derives from the 1973 Schubert case ruling, in which the Supreme Court upheld the decision of a cantonal authority to forbid an Austrian man from Vienna from acquiring Swiss land, in spite of him asserting entitlement to such acquisition under a 1875 treaty between Switzerland and Austria (then part of Austria-Hungary).
The emergence of the Schubert practice was thus an attempt to bring into line the will of the Swiss legislator and the obligations arising from international law.
The court doctrine has been much criticized by legal scholars, and has been refined and supplemented over time, particularly in relation to the European Convention on Human Rights (ECHR).
[12] In fact, Henri Steenworden, a Geneva café-brasserie operator, played gramophone records on a daily basis in his establishment.
[13] However, as the records were not made in Switzerland (although the ruling does not indicate their precise origin), the French Société des auteurs, compositeurs et éditeurs de musique (SACEM) sued him for copyright infringement.
In its ruling, the Federal Court refers to the Berne Convention for the Protection of Literary and Artistic Works, of 1886, without mentioning which party is invoking it ("Vainement prétendrait-on").
At the end of November 1947, a bird-hunting party was organized by boat between Triboltingen (today Ermatingen), the Konstanzer Ried (German shore) and Reichenaustrasse (downtown Constance).
On October 31, 1967, Frigerio filed an application with the then Federal Department of Environment, Transport, Energy and Communications (DETEC, German: Eidgenössisches Departement für Umwelt, Verkehr, Energie und Kommunikation, Italian: Dipartimento federale dell'ambiente, dei trasporti, dell'energia e delle comunicazioni, French: Département fédéral de l'environnement, des transports, de l'énergie et des communications).
The purpose of this request was to ascertain that river passenger traffic between Neuhausen am Rheinfall (where the Rhine Falls are located) and Basel was not in any way subject to the granting of a concession.
[26] Article 1 of the agreement states:"Navigation and floating on the Rhine, from Neuhausen to below Basel, are permitted to everyone; they are subject only to restrictions required by tax and customs regulations, or by police necessities for the safety and regularity of communications.
"In the context of an obiter dictum[nb 3][27] (other things said)[28] in the Frigerio ruling, the FC leaves the door open to the possibility of deviating from international law.
It states that international treaties are in force in Switzerland, as long as the legislator does not clearly decide to enact a domestic norm that would be contrary to them;[29] the way is thus paved for the adoption of the Schubert ruling.
[44] In 1972, the appellant,[nb 6] Ernst Schubert, an Austrian national living in Vienna, owned two plots of land in the commune of Brissago, Ticino.
[45] On March 22, 1972, Schubert acquired two additional plots from a Swiss woman living in the United States, one of which adjoined the land he already owned.
[50] In his defense, he invoked a treaty with Austria-Hungary signed in 1875,[51] in particular article 2,[52] which stipulates the following:"With regard to the acquisition, possession and alienation of real estate and property of all kinds, as well as the free disposal of such property and the payment of taxes and transfer duties on such real estate, the nationals of each of the contracting parties shall enjoy in the territory of the other the same rights as nationals" - art.
[54] According to the principle lex specialis derogat legi generali, the Treaty must take precedence over the Federal Decree of 1961.
[64] The judgment is described as "notoriously unclear",[65] "questionable", not to say "unconvincing",[62] endowed with "inconsistencies",[66] "once again creating legal uncertainty",[67] "leaving a bad feeling after [its] reading".
[72] Some scholars consider the criteria laid down in the Schubert ruling to be restrictive,[73] or to be applicable only in very rare cases[74] (thereby diminishing its practical scope).
[92] In 1997, the Federal Office for Customs and Border Security - FOCBS (German Bundesamt für Zoll und Grenzsicherheit, BAZG; French Office fédéral de la douane et de la sécurité des frontières, OFDF; Italian Ufficio Federale della dogana e della sicurezza dei confini, UDSC) seized propaganda material from the Kurdistan Workers' Party (PKK) in Riehen, a municipality in the canton of Basel-Stadt on the border with Germany.
Dezember 1948 betreffend staatsgefährliches Propagandamaterial, Italian: DCF del 29 dicembre 1948 concernente il materiale di propaganda sovversiva, French: ACF du 29 décembre 1948 visant la propagande subversive).
[78] In another ruling in 2007,[110] the Federal Supreme Court claimed, again in obiter dictum, that the Agreement on the Free Movement of Persons (AFMP; German: Abkommen zwischen der Schweizerischen Eidgenossenschaft einerseits und der Europäischen Gemeinschaft und ihren Mitgliedstaaten andererseits über die Freizügigkeit, Italian: Accordo tra la Confederazione Svizzera, da una parte, e la Comunità europea ed i suoi Stati membri, dall’altra, sulla libera circolazione delle persone, French: Accord entre la Confédération suisse, d’une part, et la Communauté européenne et ses États membres, d’autre part, sur la libre circulation des personnes), ratified by Switzerland in a "consultazione popolare" ("popular consultation" in Italian),[111] enjoyed democratic legitimacy, affirming their primacy in the face of a conflicting norm of domestic law.
[114] However, in the same ruling, the First Court of Social Law identified certain human rights provisions in the AFMP (including the principle of non-discrimination laid down in art.
[125] One possible reason for this hesitation may be a conflict between the civilists and publicists who populate the Federal Supreme Court as regards the role and expansive jurisprudence of the ECtHR, with the former calling for more "self-restraint" on the part of the Strasbourg judges compared with the latter.
[77] Following the adoption of the popular initiative "For the expulsion of criminal foreigners" in 2010 (German: Eidgenössische Volksinitiative 'für die Ausschaffung krimineller Ausländer', Italian: Iniziativa popolare 'per l'espulsione degli stranieri che commettono reati', French: Initiative populaire fédérale 'Pour le renvoi des étrangers criminals'), the Federal Supreme Court was once again confronted with a conflict between national and international law (in this case, once again with the ECHR).
[134] Part of the doctrine criticized the Federal Supreme Court for these developments in the 2010s, accusing it of being inconsistent in its practice[136] and slow to take a clear position.
[63] In the Swiss system of direct democracy, conflicts between the popular will and obligations arising from international treaties and principles are possible; in this regard, the Schubert mechanism is often seen as a solution.
[147] In its response, the Federal Council emphasized that the authors of the 1999 Constitution had deliberately chosen not to take a position, so as to enshrine the principle of the primacy of international law, while leaving open the possibility of a few exceptions.
[148] Reimann reiterated his motion in 2016,[149] particularly in view of the ruling on the deportation of foreign criminals:[150] he was told that the codification of the Schubert practice, which was too rigid, presented dangers for the implementation of international law.
[154] In 2013, Luzi Stamm, an agrarian national councillor from Grisons, proposed the primacy of domestic law, along with a codification of the Schubert practice.
The idea of "reviving Schubert"[158] was raised in the Federal Assembly, which discussed a possible counter-proposal, but the project was once again rejected, not least to protect Switzerland's credibility on the international stage.
