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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
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- Art. 48 PRA
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- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
I. History, systematics and importance of the provision
1 As indicated by its title, which is the same in all three language versions, Art. 15 deals with the validation and publication of (federal) voting results. Like the other provisions of Title 2, the provision applies only to votes, not to elections, for which there are other provisions in the law on the validation and publication of results.
2 The provision already existed, but in a significantly shorter version, and with only three paragraphs, the first three, in the original version of the law, in 1976. The two chambers of Parliament adopted the Federal Council's proposals virtually unchanged, apart from a very slight editorial amendment to paragraph 3, and without discussion.
3 Since then, the provision has undergone only two modifications, both linked to the reform of the justice system and the transfer to the Federal Supreme Court of the jurisdiction - previously held by the Federal Council - to hear appeals for violation of federal political rights, particularly in connection with federal votes. On the one hand, the wording of paragraph 1 was amended with the adoption of the Federal Supreme Court Act (LTF) on June 17, 2005, precisely to take account of this transfer of jurisdiction.
4 In addition, the partial revision of the Political Rights Act of June 21, 2002, which came into force on January 1, 2003, added a new paragraph 4 to Art. 15. In this respect, the Federal Assembly adopted the Federal Council's proposal in full, without discussion. We will return to the reasons for this addition below.
5 For the rest, Art. 15 has undergone no further changes since the law came into force in 1978.
6 With regard to its structure, Art. 15 thus consists of four paragraphs, dealing with the validation of voting results (para. 1) and their publication in the Federal Gazette (para. 2), as well as the entry into force of amendments to the Constitution (para. 3) and the hypothesis of the provisional entry into force - or provisional maintenance in force - of certain acts prior to the definitive validation of voting results (para. 4).
7 With regard to the importance of the provision in general, we will simply refer to what has already been said in the commentary on art. 10 to 14, on the significance and fundamental importance of the rules governing the organization and conduct of popular votes - in particular the correct establishment of results - in the Swiss constitutional and political system.
8 All the cantons have provisions similar to art. 15, which deal with the validation and publication of cantonal and communal voting results.
II. Commentary
A. Paragraph 1: validation of results by the Federal Council
1. The concept of validation and its evolving meaning
9 Paragraph 1 of art. 15 stipulates that "[t]he Federal Council confirms the definitive result of the vote (validation) as soon as it has been established that no appeal has been lodged with the Federal Tribunal or as soon as the judgments on such appeals have been handed down". As already stated in the 1975 Federal Council message, Art. 15:
"... defines the notion and legal character of validation, which is the establishment of the irrevocably established result of the vote."
We shall see later that this assertion of the definitive nature of validation needs to be qualified in the light of recent Federal Court case law.
10 As is clear from the very text of paragraph 1, validation is therefore - subject to the reservation just mentioned - the establishment of the "definitive result of the vote". It represents the "official act which establishes the content of the popular will" and the "act by which an authority ascertains both the result and the regularity of a ballot", an act which "takes effect from the moment of its publication, in the official organ provided for this purpose". The validation decision thus, in principle, formally puts an end to the procedure for adopting a norm or to the legislative procedure.
11 In the case of a vote, therefore, a distinction must be drawn between the provisional results of the ballot and their declaration, which are established immediately, in principle on the day of the vote itself, and which fall within the scope of art. 14 of the LDP, and the formal (and in principle definitive) validation of the ballot and its results, which takes place at a later date and is the subject of art. 15 para. 1 of the LDP.
12 As the 1975 Message also made clear, the provision now gave the Federal Council the power to validate the results of all federal votes, including votes on constitutional amendments:
"While the results of votes on federal laws and decrees have been validated by the Federal Council since 1874, the Federal Assembly has until now validated constitutional amendments itself, in the absence of a legal provision. In order to ensure complete legal certainty with regard to voting (Title 6 of the bill), and in view of the relatively minor importance of this competence and the additional workload imposed on Parliament, it seems appropriate and justified to delegate this responsibility to the Federal Council. In some cases, this delegation has been granted, due to lack of time (e.g. the Federal Decree of December 27, 1963 concerning the extension of the Confederation's financial regime)."
Since 1978, therefore, the Government has had sole authority to validate the results of all federal votes, regardless of the type of act concerned.
13 As we have seen, paragraph 1 was amended when the Federal Supreme Court Act (LTF) of June 17, 2005 came into force on January 1, 2007. Whereas the original 1976 text simply stated that "[t]he Federal Council establishes the definitive result of the vote (validation)", the end of the sentence was added, i.e. the temporal precision "as soon as it is established that no appeal has been lodged with the Federal Tribunal or as soon as the judgments handed down on such appeals have been pronounced". This addition is explained by the fact that, prior to the entry into force of the reform of the justice system and the new Federal Supreme Court Act, it was the Federal Council itself that was the appeals authority for challenges to cantonal government decisions on appeals concerning "irregularities affecting votes (appeals concerning votes)", within the meaning of art. 77 para. 1 let. b LDP. Consequently, as the authority competent both to hear appeals against votes and to validate the results of such votes, the Federal Council did not need to specify the moment of validation, which logically took place after it had itself decided on any appeals.
14 The Federal Council had in fact proposed that this logic be enshrined in law, and it was with the partial revision of March 18, 1994, which came into force on November 15, 1994: Parliament, following the Federal Council's proposal without amendment or discussion, added a new second sentence to art. 81 of the LDP, worded as follows: "The Federal Council shall rule on the appeal before declaring the final result of the vote (art. 15, para. 1)". This clarification disappeared, however, insofar as Art. 81 of the LDP was subsequently simply repealed when the Federal Supreme Court Act was passed.
15 With the transfer to the Federal Supreme Court, as a result of the reform of the justice system, of the power to rule on appeals concerning votes within the meaning of art. 77 para. 1 let. b LDP, it became necessary to introduce a new clarification, namely that the validation of vote results by the Federal Council can and must only take place once it has been "established that no appeal has been lodged with the Federal Supreme Court, or as soon as the rulings on such appeals have been handed down".
16 Paragraph 1 of art. 15 LDP thus means that the Federal Council must await the outcome of any appeals to the Federal Supreme Court before validating the final results of federal referenda. And the Federal Council is bound in this respect, with regard to the regularity of the vote, by any decisions of the Federal Court, concerning for example the annulment of a vote or the ordering of a recount. This has the effect of reducing the significance of the Federal Council's validation decision, which, according to some authors, has little more than an "accounting" or "notarial" function.
17 In any case, the validation decision currently takes the form of a "decree of the Federal Council recording the result of the federal vote of ...", with the final official results of each of the items put to the vote in the vote in question appended.
18 This validation decree of the Federal Council is not, as such, subject to appeal to the Federal Court, by virtue of art. 189 para. 4 of the Constitution.
2. Art. 15 and "retrospective" judicial review
19 The rule that the Federal Council must await the outcome of any appeals to the Federal Supreme Court before validating the final results applies to "ordinary" appeals, so to speak, i.e. appeals lodged against votes within the time limits laid down in the legislation on political rights and the law on the Federal Supreme Court.
20 On the other hand, in view of the Federal Supreme Court's recent - and much-discussed - case law, inaugurated in 2011 and confirmed in 2019 when the first federal vote in history was annulled, this does not prevent the result of a federal vote from being called into question at a later date, once it has been validated by the Federal Council. In this case law, the Federal Supreme Court accepted, as it had previously done for cantonal votes, that it is possible to challenge retrospectively, by means of a public law appeal, and under certain specific conditions, the validity or regularity of a federal vote, even after the vote has been validated by the Federal Council, and well after the expiry of the "ordinary" appeal period, if it transpires that the vote was tainted by irregularities discovered after the event, and which could not be invoked beforehand. This is sometimes referred to as "retrospective" review - or "retrospective" or "subsequent" legal protection ("nachträgliche Prüfung") - of the regularity of a federal vote.
21 It is well known that, in a subsequent decision of March 23, 2021, the Federal Supreme Court somewhat corrected and qualified its jurisprudence, and considered as exceptional, and subject to strict conditions, the possibility of contesting a posteriori the (results of) federal votes, a possibility which it did not, however, formally call into question.
22 It follows from this case law that - contrary to what the Federal Council's 1975 message indicated - the Federal Council's validation of the results of a vote within the meaning of art. 15 para. 1 LDP is not or no longer absolutely definitive, or that this "result [is no longer] irrevocably established". As one author points out, "validation no longer completely fulfils this historic role", insofar as "jurisprudence now admits, under certain conditions, that a ballot may or must be subject to judicial review after it has been validated".
23 Another question raised by this case law, again in connection with art. 15 para. 1 LDP, is whether, in the event of a vote being annulled by the Federal Supreme Court, the Federal Council is obliged to review or partially annul its validation decree. In its ruling of April 10, 2019, the Federal Supreme Court decided to do so, and enjoined the Federal Council "to adapt its validation decree ex officio to the new ruling of the Federal Supreme Court", on pain of finding itself "in conflict with the duty imposed on it by art. 182 para. 2 Cst. to ensure the implementation of judgments handed down by the federal judicial authorities". The Federal Council justified this injunction and followed it, partially repealing the decree validating the vote of February 28, 2016, by decision of June 21, 2019. However, some experts believe that this should not - and should not - have been the case.
B. Paragraph 2: publication (of the validation) of the results in the Federal Gazette
24 Paragraph 2 of art. 15 stipulates that "[t]he validation decree shall be published in the Federal Gazette". This provision, which already existed in the original 1976 version of the law and has not been amended since, does not call for much comment. At most, we can point out that it falls into the category of publications in the Federal Gazette mentioned in art. 13 para. 1 let. g of the Federal Act on the Compilations of Federal Law and the Federal Gazette (Official Publications Act, LPubl) of June 18, 2004. According to this provision, "other texts that must be published by virtue of federal legislation" are published in the Feuille fédérale.
25 It follows from the text and system of art. 15 LDP - as well as from simple logic - that the publication (validation) of results in the Federal Gazette follows their validation by the Federal Council.
26 At present, the validation decree (see N 17 above) is generally published in the Federal Gazette within two to five months of the vote. In the meantime, however, the provisional official results are published on the Federal Chancellery website.
C. Paragraph 3: entry into force of amendments to the Federal Constitution
27 Paragraph 3 of Art. 15, which has also remained unchanged since the law came into force in 1978, states that "[a]mendments to the Constitution come into force as soon as they have been accepted by the people and the cantons, unless the bill provides otherwise".
28 This provision, which was not commented on in the Federal Council's 1975 message, merely reproduces, at least in its first part, Art. 195 of the Federal Constitution, which states that "[t]he Constitution, as totally or partially revised, comes into force as soon as it has been accepted by the people and the cantons". In this sense, it might at first glance appear unnecessary.
29 However, the purpose of this apparent repetition is to remind us of the constitutional rule, and to clarify, in relation to the two preceding paragraphs, that although the results of a federal vote must first be validated by the Federal Council (para. 1 of art. 15 LDP), and then published in the Federal Gazette (para. 2) - operations which take some time, not least because, as we have seen above, the outcome of any appeals to the Federal Supreme Court must be awaited - this does not prevent amendments to the Constitution - which are necessarily subject to mandatory referendum - from "coming into force as soon as they have been accepted by the people and the cantons", i.e. without necessarily waiting for the results of the vote to be validated and published in the Federal Gazette. Revisions to the Constitution therefore come into force, in principle, on the very day of the vote by which they are accepted.
30 In this sense, the first part of paragraph 3 confirms, or reaffirms, that the constitutional rule applies despite the duration of the validation and publication of the voting results, which therefore have no effect on the entry into force of constitutional amendments.
31 The second part of paragraph 3, namely the fact that amendments to the Constitution come into force as soon as they have been accepted by the people and cantons "unless the draft provides otherwise", is on the other hand more surprising and difficult to pin down: this proposal no longer confirms or reaffirms the constitutional rule, but on the contrary provides a derogation, or an exception, which is not contained in the Constitution. Indeed, the constitutional rule makes no provision for such an exception, and "is, at least in appearance, given to be absolute". This is despite the fact that practice tolerates exceptions - as stipulated in art. 15 para. 3, to be precise - even quite frequently, in the sense that the draft constitutional amendment submitted to the vote of the people and the cantons sometimes empowers the Federal Assembly or the Federal Council to set the date of its entry into force, as was the case, for example, for the reform of the justice system, accepted on March 12, 2000, but also for the new Federal Constitution itself, of April 18, 1999.
32 While such derogations from the rule that constitutional amendments must come into force immediately upon acceptance are relatively common in government projects, they are also sometimes found in the text of certain popular initiatives.
33 The derogatory rule, which delegates to the Federal Assembly or the Federal Council the power to set the date of entry into force of the constitutional amendment at a later date, may appear either in the (constitutional) text submitted to the vote itself - for example, in a transitional provision - or in the federal decree submitting this text to the vote of the people and the cantons.
34 In any case, while accepting the practice and the derogatory rule of art. 15 para. 3 of the LDP, legal doctrine generally stresses that "for democratic considerations and legal certainty, an entry into force should not be unduly delayed, particularly when it is up to Parliament or the federal government to determine it".
35 It should also be remembered that, as the legal literature emphasizes, a distinction must be drawn between the entry into force of constitutional provisions, on the one hand, and their implementation, on the other, which depends in particular on whether or not they are directly applicable. Art. 15 para. 3 of the LDP, like art. 195 of the Constitution, deals only with entry into force, not implementation.
36 Finally, it should be noted that there is some disagreement in the legal literature on the question of publication in the Official Compendium of amendments to the Constitution. For some authors, the fact that the Constitution itself in principle fixes the date of entry into force of such amendments, at the time of their acceptance, means that it is no longer necessary to publish them officially in the Official Compendium. Others, however, with whom we agree, take the view that this is not the case, and that the amendments themselves must also be published, even if they have already come into force. In practice, they are always published.
D. Paragraph 4: provisional entry into force of an act
1. Origin and ratio legis of the provision
37 Paragraph 4 of art. 15, which was introduced with the revision of June 21, 2001 and came into force on January 1, 2002, "[i]f the modification of the law does not suffer any delay and the result of the vote is indisputable, the Federal Council or the Federal Assembly may, before the validation decree is issued, provisionally bring into force a law or a federal decree approving an international agreement"; the provision adds that the authority in question may also, where appropriate, "provisionally maintain in force or repeal a law declared to be urgent". The two chambers adopted the Federal Council's proposal without discussion.
38 The Federal Council's message explained the need for this new provision as follows:
"Whereas until now, decisions on appeals and the validation of voting results were the responsibility of the Federal Council, which made the former decisions and validated the latter at the same time, the reform of the justice system brought about by the new Constitution (art. 189, para. 1, let. f, Cst.) has separated these two operations. At least as a general rule, the validation of the voting result by the Federal Council should logically take place once the Federal Supreme Court has ruled on the appeals lodged by those contesting the result. We submitted proposals on this subject in the message on the new Federal Supreme Court Act (FF 2001 4000). Over the last few years, we have seen more and more evidence that having to wait for the validation decree before bringing a legislative act into force, when the contingencies of national and international law require us to act quickly in the interests of the community, leads to serious disadvantages for the country, which a majority of the people precisely do not want. As for federal laws declared urgent, there is even a systematic risk that they will cease to be in force at the end of the one-year period prescribed by the Constitution if the decree validating the people's "yes" cannot be issued in time due to the flood of appeals, as the following table 1 (corresponds to the original text, no translation) shows:
Opérations | Temps minimal nécessaire, en jours |
Publication dans la FF /dans le RO | 10 jours |
Délai référendaire | 100 jours |
Contrôle des signatures | 30 jours |
Fixation de la date de la votation populaire (généralement 4 dates par an) | 30 jours |
Organisation correcte de la votation, d’après les normes | 95 jours |
Publication du résultat de la votation dans la feuille officielle du canton, recours devant le gouvernement cantonal et décision sur recours | 28 jours |
Dépôt du recours | 5 jours |
Total intermédiaire | 298 jours |
Réserve pour la décision finale du Tribunal fédéral, y compris la notification | 37 jours |
Procédure jusqu’à l’arrêté de validation du Conseil fédéral | 15 jours |
Publication dans la FF/dans le RO | 15 jours |
Total | 365 jours |
For all these reasons, when the result of the vote is perfectly clear, the competent authority (Federal Council or Parliament) may, even before issuing the validation decree, provisionally bring into force a federal law or decree approving an international agreement, or maintain in force an urgent federal law if the modification of the law (or its maintenance in the case of an urgent law) does not suffer any delay (art. 15, para. 4, LDP)."
39 The same message from the Federal Council also gave several examples of federal laws and international agreements on which a referendum had been requested and which had been - or were due to be - submitted to a popular vote, but which had "had to come into force earlier than planned once the result of the vote was known, if not immediately after the referendum had been declared successful". The message goes on to cite a dozen such cases, including the Federal Decree on Switzerland's membership of the Bretton Woods institutions and the Federal Act on Switzerland's participation in the Bretton Woods institutions in 1992, the Federal Act on the increase of import duties on fuels, dated October 9, 1992, in 1993; the Federal Decrees on accession to - and approval of - the Agreement establishing the World Trade Organization (WTO), in 1994-1995; the four Federal Acts constituting the reform of the PTT, in 1997, etc. .
40 The Government's intention with this new paragraph 4, which the Chambers adopted without discussion, was to give the authorities - the Federal Assembly itself or the Federal Council, as the case may be - the power to "provisionally bring into force a federal law or decree approving an international agreement" without waiting for the decree validating the results of the vote and its publication.
41 For federal votes other than those on constitutional amendments, the new paragraph 4 therefore performs a function somewhat analogous to that of paragraph 3 for votes on constitutional amendments. While such amendments normally come into force automatically (unless an exception is made), i.e. without having to be "put into force", from the moment of their acceptance by the people and the cantons, i.e. without waiting for the validation and publication of the results, paragraph 4 allows the authorities, under certain conditions, to do the same for acts other than constitutional amendments, i.e. to "provisionally bring into force a federal law or decree approving an international agreement", and to do so "before the decree validating" the popular vote is issued.
2. Excursus: art. 15 para. 4 LDP and provisional application of treaties under art. 7b LOGA
42 This power of the Federal Council to provisionally bring into force certain acts, in particular a decree approving an international treaty accepted by popular vote, without waiting for the decree validating the popular vote in question, should not be confused with the institution of provisional application of an international treaty even before its approval by the Federal Assembly, an institution introduced subsequent to art. 15 LDP, in the Federal Act on the Organization of Government and Administration (LOGA), by a revision of October 8, 2004, in force since January 1, 2005.
43 Art. 7b LOGA, the wording of which was slightly modified by a revision of June 21, 2019, in force since December 2, 2019, thus provides that "[w]hile the approval of the conclusion or modification of an international treaty is a matter for the Federal Assembly, the Federal Council may decide or agree on its provisional application without the approval of the Federal Assembly if the safeguarding of essential interests of Switzerland and a particular urgency so require" (para. 1), with the proviso that the Government "renounces provisional application if the competent committees of both Councils oppose it" (para. 1bis) and that "[t]he provisional application of an international treaty ends if, within six months of the start of provisional application, the Federal Council has not submitted to the Federal Assembly the draft federal decree approving the treaty concerned" (para. 2).
44 The two institutions should not therefore be confused, since they are so different in terms of their material and temporal scope, as well as their "political" importance. Whereas art. 7b LOGA potentially covers all treaties whose approval falls within the competence of the Federal Assembly, within the meaning of art. 166 para. 2 of the Swiss Constitution, art. 15 para. 4 LDP applies, possibly, only to treaties whose act of approval - already adopted by the Federal Assembly - is subject to a vote of the people (optional referendum) or to a vote of the people and the cantons (mandatory referendum) and has effectively (already) been accepted by popular vote. As a result, art. 7b LOGA applies prior to approval by the Federal Assembly, whereas art. 15 para. 4 LDP applies only to treaties that have already been approved by the Federal Assembly and, indeed, accepted by popular vote, and then only on a provisional basis and for a period ranging from a few days to a few months at most, between the vote accepting the treaty and the date of its validation. The scope of Art. 15 para. 4 LDP is therefore much narrower than that of Art. 7b LOGA, and its importance significantly less.
45 The provisional application of a treaty that has been accepted by popular vote, but whose validation has not yet been adopted and published, as provided for in art. 15 para. 4 LDP, is obviously much less politically sensitive than the provisional application, as provided for in art. 7b LOGA, of an international treaty that has not even yet been approved by Parliament. This is why provisional application is subject to very strict conditions, namely, as the text of the law states, that provisional application is required by "the safeguarding of essential interests of Switzerland and a particular urgency", and that it must be approved after the fact by the Federal Assembly.
3. Back to art. 15 para. 4: its use in practice and conditions of application
46 Since it came into force in 2002, art. 15 para. 4 has hardly been applied. The question has apparently been raised in some cases, but a solution has always been found to avoid the need for provisional enactment - or maintenance - in the sense that the validation decree has almost always been issued and published before the act in question comes into force. It may also be asked whether a solution, which has apparently not been (or should not have been) used to date, might not further reduce the risk of having to resort to provisional entry into force or maintenance in force within the meaning of art. 15 para. 4 of the LDP: the provision, at least in cases where it proves necessary, of separate validation decrees for each (or for some) of the objects submitted to the same popular vote. Such a procedure, of separate or individual validation decrees, if necessary, seems legally admissible, even recommended, particularly from the point of view of the principle of proportionality, in that it would represent a milder measure than that of provisional entry into force.
47 In any case, the only known case of application of Art. 15 para. 4 to date occurred recently, in the context of the first amendment of the urgent Federal Act on the legal basis of Federal Council ordinances to overcome the COVID-19 epidemic (COVID-19 Act), of September 25, 2020. This first revision of the COVID-19 Act, adopted on March 19, 2021, also in the form of an urgent law, came into force on March 20, 2021, with effect until December 31, 2021 for some of its provisions, but until dates later than March 19, 2022 for others. This revision was also subject to a referendum, and the popular vote took place on November 28, 2021, with the law being accepted by around 62% of the citizens who took part in the vote. However, in accordance with Art. 165 para. 2 of the Swiss Constitution, this amendment should have ceased "to have effect one year after its adoption by the Federal Assembly if it has not been accepted by the people within this period", i.e. by March 19, 2022. By this date, however, the decree validating the results of the November 28, 2021 vote had not yet been adopted or published, nor was it ready to be, not least because of the numerous appeals lodged against the vote. The Federal Council therefore decided to rely on Art. 15 para. 4 of the LDP to provisionally maintain the provisions of the revised COVID-19 law in force, pending validation of these results. This was done by decree on March 11, 2002, published in the Feuille fédérale. The decree validating the results of the November 28, 2021 vote was adopted one month later, on April 11, 2022.
48 It is clear from this first case of application that, as far as form is concerned, the decision to bring into force - or maintain in force - provisionally must be published, and rightly so, in this case in the Federal Gazette. With regard to the authority to take such a decision, however, it is unclear whether the Federal Council or the Federal Assembly is responsible for deciding whether a law or federal decree approving a treaty should be brought into force - or remain in force - provisionally, and art. 15 para. 4 is not at all clear in this respect. The text of paragraph 4 refers to both "the Federal Council or the Federal Assembly", and the preparatory work seems to indicate that it is "the competent authority (Federal Council or Parliament)", depending on the case. In the case in point, however, the decision to provisionally maintain the revised COVID-19 law in force was taken by the Federal Council, even though the revised law in question did not contain a clause delegating its implementation to the Federal Council.
49 As far as the substance is concerned, the two conditions laid down for such a provisional entry into force, without waiting for the results of the vote to be validated and published in the Federal Gazette, are, as is explicitly stated in the provision, on the one hand, that "the modification of the law does not suffer any delay" and, on the other hand, "that the result of the vote is indisputable". With regard to the first of these conditions, the Federal Council's message cites "serious disadvantages for the country, which a majority of the people precisely do not want" (since the popular vote has, by hypothesis, approved the act in question) that could result from "having to wait for the validation decree before being able to bring a legislative act into force, where the contingencies of national and international law require us to act quickly in the interests of the community". The examples of the "interests at stake" provided in the message (cf. N 39 above) at the time in support of the various cases referred to mostly concerned "our country's representation" in international organizations and "a number of significant additional benefits" that our country could derive from its participation in these institutions, on the one hand, as well as "the enormous financial interests of the Confederation which were at stake", or "essentially economic reasons", on the other. These examples do not, however, provide very concrete indications, and in our view the condition that "the modification of the law does not suffer any delay" should not be accepted too readily, even if this condition cannot be as strict as the corresponding one that applies to the provisional application of treaties within the meaning of art. 7b LOGA.
50 With regard to urgent laws, the condition is more concretely understandable, the risk being, as the message also states, that an urgent law "ceases to be in force at the end of the one-year period prescribed by the Constitution if the decree validating the yes of the people cannot be issued in time because of the flood of appeals", which corresponds precisely to the only case, mentioned above, of application of the provision so far. In this case, not allowing the urgent law to be provisionally maintained would have the effect of creating a "hole" in the legislation, as it were, between the end of the one-year period provided for by the Constitution, when the urgent law would cease to be in force, and the moment of the decree validating the results of the vote, when the law would regain its validity and come back into force, which would not go without posing major problems of application of the law over time and legal certainty.
51 With regard to the second condition for the application of art. 15 para. 4, i.e. "that the result of the vote is incontestable", this requirement undoubtedly refers to the result of the vote itself, in particular to its more or less clear nature, i.e. the difference in votes. The clearer the result, and the greater the difference in votes, the more easily art. 15 para. 4 can be applied; conversely, the closer the result, the more restraint the authority will have to exercise in applying the provision. However, it may also be hypothesized that the closeness of the result - the difference in the number of votes - is not the only determining factor, and that the nature, or seriousness, of the objections to a voting result, in any appeal procedures that may be opened, may also play a role. The more serious the grievances, and the more likely they are to lead to the annulment of the vote, the more restraint the competent authority will have to exercise in applying art. 15 para. 4. Conversely, if the pending appeals concern grievances of little seriousness, notably irregularities a priori unlikely to lead to the annulment of the vote, the authority should enjoy greater latitude in its decision to make use - or not - of the possibility offered by art. 15 para. 4.
52 In any case, as we have seen, the federal authorities have so far shown a certain restraint, and rightly so, in the use of this provision.
The author would like to thank Mr. Beat Kuoni, legal expert in the Political Rights Department of the Federal Chancellery, for his careful review of this contribution and his valuable suggestions.
Bibliography
Aubert Jean-François, Art. 195, in : Jean-François Aubert/Pascal Mahon, Petit commentaire de la Constitution fédérale de la Confédération suisse du 18.4.1999, Bâle 2003, pp. 1501-1502.
Biaggini Giovanni, BV Kommentar, 2e éd., Zurich 2017.
Biaggini Giovanni, Eine verzwickte Angelegenheit: Die nachträgliche Prüfung der Regularität einer eidgenössischen Volksabstimmung – Bemerkungen zu den Entscheidungen des Bundesrates (vom 29.6.2011 [VPB 2012.5] und des Bundesgerichts vom 20.12.2011 [BGE 138 I 61] in Sachen Volksabstimmung über das «Unternehmenssteuerreformgesetz II» vom 24.2.2008, in : ZBl 2012, pp. 429-441 (cité : nachträgliche Prüfung).
Biaggini Giovanni, Eine Premiere mit begrenzter präjudizieller Tragweite, in : ZBl 2019, pp. 532-558 (cité : Premiere).
Biaggini Giovanni, Die Volksabstimmung über die Konzernverantwortungsinitiative vor Bundesgericht, Einblicke in die höchstrichterliche Innovationswerkstatt aus Anlass des Nichteintretensentscheids BGE 147 I 194 und der Abschreibungs-Verfügung vom 23 März 2021, in : ZBl 2021, pp. 614-628 (cité : Konzernverantwortungsinitiative).
Bisaz Corsin, Direktdemokratische Instrumente als «Anträge aus dem Volk an das Volk»: Eine Systematik des direktdemokratischen Verfahrensrechts in der Schweiz, Zurich/St. Gall 2020.
Commission des institutions politiques du Conseil des États, Initiative parlementaire. Application à titre provisoire de traités internationaux. Rapport de la Commission des institutions politiques du Conseil des États, du 18.11.2003, FF 2004 703 (cité : Rapport CIP CE 2003).
Commission des institutions politiques du Conseil des États, Initiative parlementaire. Dénonciation et modification des traités internationaux. Répartition des compétences, Rapport de la Commission des institutions politiques du Conseil des États, du 14.5.2018, FF 2018 3591 (cité : Rapport CIP CE 2018).
Conseil fédéral, Initiative parlementaire. Application à titre provisoire de traités internationaux. Rapport de la Commission des institutions politiques du Conseil des États, du 18.11.2003, Avis du Conseil fédéral, du 18.2.2004, FF 2004 939 (cité : Avis du Conseil fédéral 2004).
Conseil fédéral, Initiative parlementaire. Dénonciation et modification des traités internationaux. Répartition des compétences, Rapport de la Commission des institutions politiques du Conseil des États, du 14.5.2018, Avis du Conseil fédéral, du 15 août 2018, FF 2018 5405 (cité : Avis du Conseil fédéral 2018).
Conseil fédéral, Message du Conseil fédéral à l’Assemblée fédérale concernant une loi fédérale sur les droits politiques, du 9.4.1975, FF 1975 I 1337 (cité : Message 1975).
Conseil fédéral, Message concernant une révision partielle de la législation fédérale sur les droits politiques, du 1.9.1993, FF 1993 III 405 (cité : Message 1993).
Conseil fédéral, Message concernant une modification de la loi fédérale sur les droits politiques, du 30.11.2001, FF 2001 6051 (cité : Message 2001a).
Conseil fédéral, Message concernant la révision totale de l’organisation judiciaire fédérale, du 28.2.2001, FF 2001 4000-4280 (cité : Message 2001b).
Conseil fédéral, Message concernant la loi fédérale sur la compétence de conclure des traités internationaux de portée mineure et sur l’application provisoire des traités internationaux (Modification de la loi sur l’organisation du gouvernement et de l’administration et de la loi sur le Parlement), du 4.7.2012, FF 2012 6959 (cité : Message 2012).
Dubey Jacques, Quelle autorité pour la chose votée ? A propos du contrôle (dit « rétrospectif ») de la régularité d’une votation fédérale après le délai de recours et la validation du résultat (ATF 138 I 61), in : Eva Maria Belser / Bernard Waldmann (édit.), Festschrift für Peter Hänni zum 65. Geburtstag, Berne 2005, pp. 3-27 (cité : Contrôle rétrospectif).
Dubey Jacques, Droits fondamentaux, Volume II : Libertés, garanties de l’État de droit, droits sociaux et politiques, Bâle 2018. (cité : Droits fondamentaux).
Epiney Astrid, Art. 166, in : Bernhard Waldmann/Eva Maria Belser/Astrid Epiney (édit.), Bundesverfassung, Basler Kommentar, Bâle 2015, pp. 2484-2495 (cité : BSK-Epiney).
Fässler David, Die Aufhebung eidgenössischer Volksabtimmungen, Eine Betrachtung zu BGE 145 I 207, in : PJA 2021, pp. 486-494.
Fassbender Bardo, Art. 166, in : Bernhard Ehrenzeller/Patricia Egli/Peter Hettich/Peter Hongler/Benjamin Schindler/Stefan G. Schmid/Rainer J. Schweizer (édit.), Die schweizerische Bundesverfassung, St. Galler Kommentar, 4e éd., Zurich/St.-Gall 2023, pp. 3990-4008 (cité : SGK-Fassbender).
Glaser Andreas, Die Rechtsprechung des Bundesgerichts zu den politischen Rechten auf Bundesebene, in : ZBl 2017, pp. 415-436.
Graf Martin, Die vorläufige Anwendung von Staatsverträgen zwischen Verfassungsgrundsätzen und und der «Rücksicht auf die Forderungen der Wirklichkeit», in : ZBl 2015, pp. 455-469.
Hangartner Yvo/Kley Andreas, Die demokratischen Rechte in Bund und Kantonen der Schweizerischen Eidgenossenschaft, Zurich 2000.
Hangartner Yvo/Kley Andreas/Braun Binder Nadja/Glaser Andreas, Die demokratischen Rechte in Bund und Kantonen der Schweizerischen Eidgenossenschaft, 2e éd., Zurich 2023.
Lammers Guillaume, Art. 195, in : Vincent Martenet/Jacques Dubey (édit.), Constitution fédérale, Commentaire romand, Bâle 2021, pp. 3529-3535 (cité : CR-Lammers).
Mahon Pascal, Droits politiques, in : Olivier Diggelmann – Maya Hertig Randall – Benjamin Schindler (édit.), Droit constitutionnel suisse / Verfassungsrecht der Schweiz, Volume II : État de droit, Droits fondamentaux et droits humains / Rechtsstaatlichkeit, Grund- und Menschenrechte, Zurich/Bâle/Genève 2020, pp. 1499-1541 (cité : Droits politiques).
Malinverni Giorgio/Hottelier Michel/Hertig Randall Maya/Flückiger Alexandre, Droit constitutionnel suisse, Volume I : L’État, 4e éd., Berne 2021.
Müller Reto Patrick, Art. 195, in : Bernhard Ehrenzeller/Patricia Egli/Peter Hettich/Peter Hongler/Benjamin Schindler/Stefan G. Schmid/Rainer J. Schweizer (édit.), Die schweizerische Bundesverfassung, St. Galler Kommentar, 4e éd., Zurich/St.-Gall 2023, pp. 4609-4622 (cité : SGK-Müller).
Schiess Rütimann Patricia M., Art. 195, in : Bernhard Waldmann/Eva Maria Belser/Astrid Epiney (édit.), Bundesverfassung, Basler Kommentar, Bâle 2015, pp. 2826-2831 (cité : BSK-Schiess Rütimann).
Schmid Evelyne, Art. 166, in : Vincent Martenet/Jacques Dubey (édit.), Constitution fédérale, Commentaire romand, Bâle 2021, pp. 3089-3107 (cité : CR-Schmid).
Tschannen Pierre, Staatsrecht der Schweizerischen Eidgenossenschaft, 5e éd., Berne 2021 (cité : Staatsrecht).