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Old 04.03.2008, 11:13
Shorrick Mk2 Shorrick Mk2 is offline
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Re: EU human rights law under bilateral treaty

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I know, I know, but I'm a sucker for a coherent, lucid and literate troll posting
The troll is coherent and lucid but certainly not literate enough. Had he been so - this thread wouldn't have been started.

For starters, the Agreement on Free Movement contains explicit directions towards the implications of ECJ jurisprudence.

If the application of the Agreement involves notions of EC body of law, jurisprudence prior to the date of the Agreement's signature will have to be considered (that is article 16 para 2. of said Agreement) So unlike what the OP would have us believe, the issue certainly wasn't addressed half-heartedly by the Swiss government; and there certainly is no leeway in the way the cantons address this as it is federal legislation.

Further, there has been no reticence in Swiss Courts to take into account jurisprudence posterior to the Agreement's signature, (which is not to be applied by default stricto sensu, but rather be examined initially by a Mixed Committee - and nota bene this is what the agreement says; so all claims that the Swiss having their own interpretation would jeopardise the legislative equivalence principle are preposterous, as that right is agreed upon).

The Federal Court has consistently issued jurisprudence along the lines of EC jurisprudence as far as family reunion is concerned - see sentence in 2A.238 of 2003, consid. 5.2.2 which builds along the lines of Baumbast C-413/99.

Not only that but the Federal Court has also used references to EC law to fill voids in Swiss law (even though the matter judged was not governed by the Agreement) - see ATF 129 I 265 (consid. 5.2).

I might be wrong, but I don't believe the purpose of the European body of law is to supersede the national bodies of law as far as immigration is concerned. As a matter of fact, the European directive on Family reunion (2003/86/CE) specifically excludes EU citizen, their condition being addressed by the respective national bodies of law.

The rest, as I said, I won't comment upon.

By the way, this should be moved either under Politics or Off-Topic, as it has nothing to do here.
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Last edited by Shorrick Mk2; 04.03.2008 at 11:26.
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