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Within a few days, parliament drafts and passes an energy law that provides funds for electricity supply. above all other national interests puts - without a constitutional basis. A vote on the bill is mandatory, but instead the parliament ignores the democratic rights of the people and wants to pass the law Effective immediately set. At the same time, the Federal Council decides concealed emergency law in matters of electricity supply. Experts consider the decisions to be unconstitutional and unlawful.
Alain Griffel, a professor of constitutional law, considers the law problematic: firstly, it is unconstitutional, and secondly, the people would have to be able to vote on it because the constitutional basis is missing. Even the Federal Office of Justice opposed it. The final vote and the vote on whether the law should come into force before the referendum deadline have not yet been held.
At the same time, the Federal Council is covertly introducing emergency legislation (electricity shortage), although there is still more than enough electricity. The only current goal is to push through a permit for a gas-fired power plant in Birr without an environmental impact assessment (appeal deadline 5 days, no chance of appeal). Giovanni Biaggini, a professor of constitutional law in Zurich, fears that this will set a precedent that could be used at a later date to justify the repeal of other laws. If there is no immediate threat, this decision is unlawful, Biaggini says.
The Federal Council and Parliament are abandoning the path of the rule of law and deciding on an ill-considered energy expansion according to their own rules. Large power plants in untouched nature, but also the "intelligent" networking of all households and energy suppliers. Further expansion steps and curtailments of the rights of the population are planned. Parliament and the Federal Council are sawing away at the separation of powers. They make decisions where they have no say and seize power and rights at a rapid pace. They probably hope to be faster than any resistance.
Between Wednesday and Friday the die will finally be cast.
We can still have an influence! In order to Parliamentarians to reach us quickly, it is best to send an e-mail to the following address: firstname.lastname@example.org
Include the subject "21.501 Energy Act". This is the best way for your message to get through.
I share the assessment that the Federal Act on Urgent Measures for the Short-Term Provision of a Secure Electricity Supply in Winter, even in the version passed by the National Council yesterday, is problematic from a constitutional point of view in various respects and would therefore necessarily have to be subjected to an in-depth constitutional assessment. This is all the more necessary as it is the responsibility of parliament to examine the constitutionality of a law and to comply with it.
In my view, the following points are particularly problematic from a constitutional point of view - after a first, cursory perusal of the draft:
a) the question of whether there is an objective urgency within the meaning of Art. 165 of the Federal Constitution that justifies the enactment of an urgent federal law;
b) the compatibility of the exclusion of the planning obligation (Art. 71a para. 1 lit. c and Art. 71b para. 1 lit. b) with Art. 75 para. 1 BV;
c) the compatibility of a generally-abstractly regulated, fundamental priority of certain interests (Art. 71a para. 1 lit. d and Art. 71b para. 1 lit. c) with Art. 78 para. 2 BV;
d) the compatibility of a general-abstract regulation of an individual case (Grimselsee) with the constitutional principle of separation of powers.
Should point a) be negated, an urgent federal law would be completely inadmissible. If the objective urgency can be affirmed, but the constitutionality of individual further aspects must be denied, only an urgent federal law without a constitutional basis within the meaning of Art. 165 para. 3 of the Federal Constitution would come into question. The responsibility for the integral compliance with the Constitution adopted by the people and the cantons lies, as said, with Parliament.
With kind regards
Prof. Dr Alain Griffel
University of Zurich
Institute of Law