Such conflicting aims can be solved by carefully balancing interests. As a matter of principle the environmental protection article (Article 24, BV) is a binding executive body, but only so far as the realization of other equal-ranking duties are not being blocked or impeded excessively.
Compromise remains an essential part of Swiss politics and environmental policy. The Swiss High Court (Bundesgericht, alt. Bger) has repeatedly stated that where there are contradictions between environment protection and government duties, a balance must be found. The principle of cooperation is embodied in various articles of the Federal Law Relating to the Protection of the Environment (Bundesgesetz ueber den Umweltschutz, alt. USG) to clarify this characteristic.
The state government (Bundesrat) says that "all interested parties shall participate in the decisionmaking process and participate." This is a very important statement, as the referendum threatens all executive body negotiations.
By forcing the executive body (Article 39, Paragraph 3 USG) to give cantons and interested parties a hearing before enactment of a decree or the preparation of conventions, the legislature voices the principle of cooperation. Similarly, in Article 6 (USG) the authorities are forced to appropriately inform the public about environmental protection and the extent of pollution.
Nevertheless, there remains a considerable information gap between the majority of citizens and the local authorities. Six months before the planned Aarhus convention for example, there were only approximately a dozen interested parties.
Significantly, the cantonal executive requires authorization from the government to introduce legally binding measures concerning the environmental test of compatibility (Article 9, USG), protection in the event of disaster (Article 10), rehabilitation or reconstruction (Articles 16-18), sound-protection of buildings (Articles 20-21) and waste (Article 30-32).
Cantons can make autonomous decisions, such as implementing speed restrictions on their cantonal section of the motorway but in doing so they must not violate federal law. Therefore when implementing legal remedies cantons have no right to make it impossible or excessively difficult for authorized organizations to accomplish their duties. In conclusion, it can still be maintained that cantonal environmental law is decreasingly important.
More recent cantonal constitutions often mention the method by which authorities should be forced to inform the public. Bern Canton adopted a public-oriented policy, whereas Appenzell Canton A.Rh. is more moderate. First steps towards a public-oriented administration were made in the past by Basel-Land and Aargau cantons.
Under the EUROLEX-legislation the EC Council Directive on Freedom of Access to Information on the Environment would have been transformed into Swiss law, but after the Economic European Area was rejected on December 6, 1992, the directive was not adopted.
No such constitutional right exists, but the Federal Law Relating to the Protection of the Environment (USG) establishes in Article 46, (Paragraph 1) the general rule that everyone must provide the administration with information necessary to enforce the USG and to carry out or submit inquiries.
Article 46 (USG) is lex specialis in relation to the principles of general administrative law. Article 47 says that information received by the administration from individuals and entities may be published if it is of general interest. The concerned parties have to be consulted before publishing. Paragraph 2 of Article 47 cites the obligation to preserve trade and business secrecy. To obtain (environmental) information the coordination principle (that everyone participates to reach a compromise [the Swiss system of evaluation/concordance]) must be respected.
Generally the number of regulations is not as high as in other European countries. However, the administration has a duty to cooperate and collaborate with affected, interested private entities (Article 41/a USG).
Conditions for Obtaining Information
Although the law mentions "every person," the duty to supply information is limited to those who are affected because of their activities or knowledge.
Refusal to Provide Information
In the Administration Procedure Act (Article 8 VwVG) it is stated that the government should inform the people. Article 6 (USG) forces authorities to appropriately inform the public about environmental protection. However there remains no free access to public information in the sense of that granted in the EC Directive 90/313/EEC.
Informal Guidelines for Agencies and the Public
There are no public guidelines concerning the provision or the request of information. There is only the right of access to publicly accessible information. Those directly concerned have a right to information.
Certain limitations on the duty to provide information are set down in the general administration principles, e.g. the principle of proportionality.
Specific Institutions/Officials to Provide Information
There is no governmental institution or public authority which is responsible for information. It is possible to contact the administration and try to get the information.
If an Authority Does Not Possess the Information
If the public authorities do not possess the requested information they are not obliged to get it from other agencies. Normally the authorities would assist the requester by providing, for example, the contact information of the authority responsible for dealing with the information requested.
Article 46 (USG) states the duty to provide information in the case of a harmful substance which is produced or imported, as well as details concerning where it is sold, processed or disposed.
In cases of emergency the public authorities should not hesitate to disseminate information.
It is the government's responsibility to spread information in case of an emergency. There are several legal decrees concerning that: Article 10 (USG); Stoerfallverordnung, February 27, 1991, SR 814/012; Verordnungueber die Einsatzorganisation bei erhoehter Radioaktivitaet, June 26, 1991, SR 732/32; Notfallschutzverordnung, November 28, 1983, SR 732/33; Verordnung ueber die Nationale Alarmzentrale, December 3, 1990; Verordnung ueber den Koordinierten AC-Schutz, February 24, 1990; SR 501/4.
Methods of Dissemination
It is possible for NGOs to be included on a list of groups regularly informed about law and policymaking but that list varies and it is compiled by the administration.
In the case of provision of information in Switzerland, there is mainly a system of evaluation and direct contacts from NGOs to the administration. However, mainly on the cantonal level, the administration often refuses to provide such information.
Electronic Means of Dissemination
There is no obligation to disseminate the information electronically. The Swiss administration is slowly making information available electronically, for example, via Websites.
In Switzerland there are no nongovernmental information centers.
Legislation in Switzerland set down a basis for power-sharing. It is a cooperative process mainly involving economic interest groups in the pre-parliamentary phase and political parties in the government and parliamentary arena.
In this system of "concordance," as it is called in Switzerland, no single winner takes all and everybody wins something from the negotiation. It is an idea that cannot be abandoned without changing the institutions: as long as the referendum tool exists that is a constraint on all political players. Swiss political parties and interest groups are obliged to look for compromises, even in cases of major conflict.
"Power-sharing" underlines the roles of constitutional cooperation and institutional mechanics. It prevents the exclusive exercise of power and leads to a political culture of cooperation.
The optional referendum has the greatest impact when all referendum threats are eliminated through successful pre-parliamentary and parliamentary negotiations.
The types of referendum and popular initiative (at a federal level and in the 26 cantons) are as follows:
Constitutional referendum (obligatory): In cases of total revision of the constitution, amendments and, since 1977, in decisions concerning membership of supranational organizations, a referendum must be passed for the change to take effect. All constitutional referenda must win a double majority more than 50 percent of the vote nationwide and a majority of voters in the majority of cantons.
Legislative referendum (Number of signatures required: 50,000 or the vote of eight cantons). Also known as a "facultative" referendum. Any law or decree of the Federal Assembly can be challenged. If a popular majority votes against it, the law is nullified. In cases which are deemed "urgent," the law takes effect after passage, but loses force after one year if is rejected in a subsequent referendum.
Treaty referendum (Number of signatures required: 50,000): The agreement must face a referendum if a petition with the required number of signatures is submitted. Only a popular majority is required for its passage.
Right to Initiative
Constitutional initiative (Number of signatures required: 100,000): Specifically-worded amendments go to the government and then to the Federal Assembly, which either endorses or rejects the change and is given the opportunity to offer a counter-proposal. The initiative (and counter-proposal, if there is one) is then presented for popular approval. A double majority is required for its passage.
Constitutional initiative (Number of signatures required: 100,000): The proposal is first submitted to the people. If a popular majority agrees, parliament is dissolved and an assembly is elected to draft a new constitution. The resulting document is then submitted to a referendum, in which it must gain a double majority.
All environmental issues can be subject to referenda or initiatives in this system. Referenda are binding. In Switzerland we have around 12 referenda and initiatives (at the federal level) per year.
The same system operates at the regional level (cantons) and on the communal level. At this level the possibilities are even bigger. People can suggest to change any law text or proposed projects etc. The requirements for signatures are much lower according to the number of inhabitants of the canton or the commune (in communes of several hundred e.g. 500 signatures, in larger cantons e.g. 3,000 signatures).
When a road is to be built close to private property, affected or interested parties will be notified.
NGO groups are consulted regularly on law and policymaking if the subject of the decisionmaking process is relevant to them.
Each new law proposal is sent to all interested groups and parties for written comments before the draft enters the parliament.
Openness of Parliamentary Committees
It is possible to participate in parliamentary committee meetings in different ways. Through the excellent system of evaluation in Switzerland it is possible to give oral or written commentaries.
It cannot be asserted that any Swiss government funding is specifically focused on public participation projects or public participation training.
In the case of general environmental issues, this grants further protection in areas such as association appeal in the public appeal procedure, while reference to the OG and the VwVG gives added security.
The executive body has consistently stated that legitimacy primarily fails on parties which are concerned by a decree and which have a protection based interest in its cancellation or alteration. However, association appeal is permitted, which should allow the better enforcement of public interests. Legal standing is granted to environmental protection organizations which were established at least ten years before the appeal was submitted. A corresponding list is published by the government.
With regard to any authorized legal remedy on a cantonal or local level, Article 55 (Paragraph 3, USG) states clearly that environmental protection organizations can legally benefit from any of the legislation's measures.
Cantonal law has to guarantee legal associations at least the same rights as in national law. Thereby national legislation does not intervene unnecessarily in canton sovereignty, a doctrine which conforms to the constitution.
The average time for appealing an administrative decision about other environmental administrative decisions would be about one to three years.
There are no environmental cases in Switzerland concerning the provision of information.
As noted previously, it is the USG which regulates such issues.
Against all larger projects which affect the environment and for which an EIA is obligatory (there is a list of types of projects in the law) the environmental protection organizations which have existed for 10 years have a legal right to appeal and to be a party in the legal procedure on the permission for construction. They can ask that the permission be rejected or that the project must be modified. They can appeal through all levels starting from the communal level, regional level and up to the final decision of the federal court if necessary. This legal right to appeal has been used very successfully by NGOs. The success rate is much greater than with other legal procedures.
|TABLE 1: Legal Standing Against Polluters|
|Special administrative court||Civil court||Criminal court||Arbitration court or special economic courts||Constitutional court|
*theoretically (one case)
USG = Umwelschutzgesetz, October 7, 1983, SR 814/01 (Federal Law Relating to the Protection of the Environment)
NHG = Bundesgesetz ueber den Natur- und Heimatschutz, July 1, 1966, SR 451 (Federal Law Relating to the Protection of Nature and the Countryside)
In Switzerland there is consistent and meaningful enforcement of court judgments. It is not a problem in principle.