Introduction
Infringement of Constitution and fundamental principles of law
Comment
Driven by the energy crisis, the Swiss Parliament has taken various energy policy measures, accelerating projects by years in some cases.
First, Parliament launched a solar offensive for more domestic winter electricity. Both chambers gave the green light for large photovoltaic plants in the mountains and introduced a solar roof obligation for new buildings with a floor area of over 300 square metres.
In addition, the Grimsel dam, a major hydropower project, may now be further raised by more than 20 metres, which will significantly increase electricity production. Various groups had blocked this project for decades with objections. The Parliament has now exempted the project from the planning obligation.
Further projects are already in the pipeline. For example, the environmental committee of the small chamber of Parliament has unanimously voted in favour of drafting a bill to speed up the construction of large-scale wind turbine projects. The new bill concerns wind projects that have received the green light for their utilisation plan from the Federal Supreme Court. In this case, the utilisation plan should exceptionally also be valid as a building permit. It would then no longer be possible to appeal against it. It is planned that Parliament will debate the issue in the coming winter session.
Infringement of Constitution and fundamental principles of law
The energy crisis has been a topic of much debate both globally and in Switzerland. However, the Swiss Parliament's approach to the crisis has been harshly criticised.
Regarding the first draft of the bill concerning solar energy, the Federal Office of Justice concluded in a non-binding assessment that the law infringed the Swiss Constitution. In such a case, the new law would be subject to a mandatory referendum – namely, it would be put to a vote of the Swiss people.
Subsequently, the draft law was amended by Parliament and, as a result, it was also only made subject to an optional referendum – namely, it would only be put to a referendum if at least 50,000 voters demanded it.
However, the criticism of this and other energy policy bills remains. Opponents of the law in question claim that it violates the Federal Constitution, which requires the "undiminished preservation" or at least the "greatest possible protection" of landscape protection objects of national importance. Thus, they argue, a mandatory referendum would have been required.
Furthermore, it is claimed that, in particular, the exemption of the planning obligation infringes the principle of the division of powers and that Parliament is using the situation to generally lower the threshold for emergency legislation.
Therefore, some voters have, according to media reports, filed voting rights complaints with the Federal Supreme Court. However, it is doubtful that the Federal Supreme Court will even hear such appeals. Switzerland does not have a constitutional court system, and the right to voting rights complaints serves to challenge elections and referendums, but not parliamentary resolutions.
As in many Western countries, the energy crisis has led to significant developments in politics and legislation in Switzerland. It is to be expected that further similar projects will follow.
In addition to energy policy, this also raises various constitutional and legislative questions. It remains to be seen how the Swiss legal and political system will cope with the balancing act between time pressure for energy measures caused by the crisis and the normally rather slow pace of the Swiss legislative system.
For more information please contact Marcel Meinhardt or Ueli Weber at Lenz & Staehelin by telephone (+41 58 450 80 00) or email ([email protected] or u[email protected]). The Lenz & Staehelin website can be accessed at www.lenzstaehelin.com.