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Old 03.03.2008, 19:05
cynik cynik is offline
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Re: EU human rights law under bilateral treaty

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As far as we are, it appears there is - I don't think this has been repealed so far. Maybe you can come up with some jurisprudence?
Sure. Actually, you already did. Annex 1 to the bilateral agreement that sets out how Article 3 of that agreement (free movement of folks). I followed that up and find the following:

Annex 1, Art 1, section 1:

1. The Contracting Parties shall allow nationals of the other Contracting Parties and members of their family within the meaning of Article 3 of this Annex and posted persons within the meaning of Article 17 of this Annex to enter their territory simply upon production of a valid identity card or passport.

No entry visa or equivalent requirement may be demanded save in respect of members of the family and posted workers within the meaning of Article 17 of this Annex who do not have the nationality of a Contracting Party. The Contracting Party concerned shall grant these persons every facility for obtaining any necessary visas.

Annex 1, Art 3, section 1:
Members of the family
1. A person who has the right of residence and is a national of a Contracting Party is entitled to be joined by the members of his family.

So, that is the agreement between the states.

Reasonable men may differ, but I would say that this language indicates a legislative intention to create rights that MUST be respected. Note particularly the extra sentences demanding that folks being given "every facility" to get their paperwork. In the ECJ, this has been interpreted as meaning that states cannot even charge a fee for this "service".

Reading this law in light of the ECJ interpretations of the very same provisions and terms in EU law, I would hesitate to suggest that, on the face of it, EU nationals even need a B permit. It seems that the law allow the Swiss to keep track of family members who are not EU nationals (but not the right to deny them without cause), but I can't read this law without wondering if the whole B permit system for europeans is misguided and unlawful, according to the treaty.

This is what I meant earlier when I said the Swiss feds have been half hearted in drafting their view of the law. They allowed the bilateral agreement to be written in the language of the EU, and now they must show cause as to why the ECJ should not be the authority of this law, and the lawful authority of its scope.

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I suspect you're having issues with the principle of parliamentary sovereignty.
Your damn straight I do. Anyone who doesn't wonder about sovereignty has no political imagination at all.

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By the way, "the law I describe there" is UK's interpretation of EU case law and specifically of the EU Human Rights convention.
Yeah, that's right. Except to be pedantically accurate, the UK courts uphold the case law of the ECJ, they do not interpret it. And it isn't the Human Rights Convention they follow, but rather the Human Rights Act 1998 (UK), a very controversial piece of legislation that forces UK courts to abide by the human rights law of the EU, as set out by the ECJ and commission.

Actually, this isn't pedantry. It is kind of what this whole thread is about. Does the treaty give power to the ECJ to set standards, or does it allow states to interpret the law as they like?

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That's more or less as far as I'm willing to go on this go-nowhere topic.


Well, thanks anyway. It is kind of boring for most folks to discuss these things, it is fun to have company.
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