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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
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- 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 of origins
- II. Comparison of Laws
- III. Significance of the provision and content of the provision
- Bibliography
I. History of origins
1 The first elections for the appointment of the National Council after the foundation of the modern federal state did not take place on a uniform date. They were held on different days between October 1 and October 27, 1848. Although the Tagsatzung had not set a specific election day for the first elections, it did at least instruct the cantons in a resolution to "immediately hold the elections of members to the National Council and the Council of States [...]". What was required, however, was that the elections be held before November 6, 1848, since the constituent session of the Federal Assembly (National Council and Council of States) was scheduled for that date in Bern.
2 With the enactment of the Federal Act on the Election of Members of the National Council of December 21, 1850, the last Sunday in October at the end of the term of office was designated as election day. This election date was confirmed with the entry into force of the Federal Act concerning the Elections of the National Council of 14 February 1919. Thus, the elections for the ordinary general renewal of the National Council for the years 1851 to 1975 were held on the last Sunday in October each year.
3 Since 1979, National Council elections have been held on the second-to-last Sunday in October. The date was brought forward by one week by the Federal Act on Political Rights, which came into force in 1978. The reason given for moving the date forward was that the period between the last Sunday in October (election day) and the constituent session of the National Council, which (up to and including the 1999 elections) was held on the last Monday in November, was very short in order to determine and verify the election results and settle any election complaints. Therefore, when the PRA was created, the Federal Council proposed to bring forward the date for the National Council elections by one week. The advancement of the date for the general renewal elections and also Art. 19 PRA as a whole were adopted by both the National Council and the Council of States without discussion.
II. Comparison of Laws
4 In contrast to the Confederation, the majority of cantons do not provide for a date for the election (election day) of the cantonal parliament determined by the Constitution or the law. In these cantons, the election day is set by the electoral authority (BE, LU, UR, SZ, OW, GL, SO, BS, BL, SH, AR, SG, TG, VD). The cantonal decrees concerning political rights occasionally provide for a period at the end of a current legislative period in which the election must take place, whereby the specific date is also determined by the electoral authority:
ZH: between January and April of the election year.
NW: at the latest on April 15 of the election year
FR: in the fourth quarter of the election year
AI: one week after the ordinary Landsgemeinde in the years of the general renewal elections of the National Council or, if the district has introduced the ballot box election, at the latest on the third Sunday in May
GR: in May or June of the election year
AG: at the latest in October of the election year
TI: on a day in April of the election year
NE: in April of the election year
GE: between March 1 and April 30 of the election year.
5 Only three cantons, like the Confederation, provide for a specific election day established by statute:
ZG: first Sunday in October of the election year.
VS: first Sunday in March of the election year
JU: penultimate Sunday in October of the election year.
6 Fixed election dates established by statute can only be changed by constitutional or legislative means. They thus offer a certain degree of legal and planning security for all political actors as well as for eligible voters, because the dates for the election of parliament are known for decades. In those cantons where the electoral authority determines the specific election date, the arrangement may be subject to political influence. If it becomes a political issue in advance, it can also influence elections. For example, in the 2023 renewal elections for the cantonal and governmental councils of the canton of Zurich, controversy arose with regard to the arrangement of the election date, as the governmental council had set the election date earlier than usual (February instead of April) and thus had to accept the accusation of having "prevented a genuine election campaign".
7 For by-elections or supplementary elections, the cantons, in agreement with the Confederation, provide that the date is set by the electoral authority.
III. Significance of the provision and content of the provision
8 Art. 19 PRA establishes the date of election of the National Council for the ordinary general renewal pursuant to Art. 149 FC, as well as the competence to fix the date for by-elections and supplementary elections pursuant to Arts. 51 and 56 FC and for the extraordinary general renewal pursuant to Art. 193 para. 3 FC.
A. para. 1, sentence 1: Time of the ordinary general renewal
9 According to Art. 19 para. 1 sentence 1 PRA, the elections for the ordinary general renewal of the National Council, which takes place every four years (Art. 149 para. 2 sentence 2 FC), are held on the second-last Sunday in October. Since the election date is provided for by law, it can only be changed by way of legislation (Art. 164 para. 1 lit. a FC). The mention of the specific date in the circular letter of the Federal Council to the cantonal governments concerning the general election of the National Council therefore only has a declaratory effect.
10 Due to the statutory fixing of the date of the election, the election dates for the next elections of the ordinary general renewal are already known (22 October 2023, 24 October 2027, 19 October 2031, 21 October 2035, 23 October 2039, etc.).
B. para. 1 sentence 2: Date of by-elections and supplementary elections
11 Based on Article 19 para. 1 sentence 2 PRA, the government of the canton in which the by-election or supplementary election is to be held is responsible for determining the date of by-elections (Article 51 PRA) and supplementary elections (Article 56 PRA) to the National Council. A by-election must be held if, in constituencies in which only one member of the National Council is to be elected, the elected member resigns from the National Council or dies during the legislative period. A by-election shall be necessary if the seat of a retiring member of the National Council cannot be filled either by succession or by nomination.
12 The cantonal government shall schedule the election for the next possible date. The term "next possible date" is an indeterminate legal term. It is not defined by federal law, nor are there any clues to its interpretation in the materials. However, it is obvious that the provision of the law is intended to guarantee that a vacant seat in the National Council can be filled as soon as possible and that the number of 200 deputies guaranteed by Art. 149 para. 1 FC can be restored quickly. Accordingly, a by-election or supplementary election must in principle take place on the date that "offers itself as the next possibility". Accordingly, a by-election or supplementary election shall take place on the next blanket date for the federal referenda after the vacancy occurs. The cantonal government is admittedly not bound by these blank dates. However, in analogous application of Art. 21 para. 1 PRA, when setting the date, it must necessarily observe the deadline for the submission of election proposals set by cantonal law. When setting the election date, this deadline may of course not yet have expired and the political parties and organizations must have sufficient time between the election order and the deadline for submitting the election proposals to nominate a candidate within the party or organization.
13 The provision may lead to difficulties, in particular, if the resignation of a member of the National Council occurs shortly before an upcoming general renewal. A case from the canton of Appenzell Innerrhoden can be cited as an example: The Landsgemeinde elected Daniel Fässler (CVP/AI), then a member of the National Council, to the Council of States on April 28, 2019. Fässler took office as Council of States on June 3, 2019. Due to the incompatibility rule according to Art. 144 para. 1 FC, he resigned from the National Council the day before. The inner-Rhodian National Council seat thus became vacant four and a half months before the ordinary general election. However, the cantonal government (Standeskommission) then waived the order of a by-election for the vacant seat in the National Council. In my opinion, this waiver is compatible with federal law. Art. 19 para. 1 sentence 2 PRA provides for a certain margin of discretion for the cantonal governments. The cantonal governments may waive the ordering of a by-election if the ordinary general renewal election takes place within six months and the functioning of the National Council is not hindered thereby. The parallel organization and holding of a by-election and an overall renewal election is not only disproportionate, the member of the National Council newly elected in the by-election could, as a rule, only participate in the autumn session before the overall renewal due to the tight time constraints. A waiver of a by-election shortly before ordinary general renewal elections is not an unusual occurrence in Switzerland. Some cantons therefore provide for their elections, which are to be organized according to cantonal law, that by-elections are to be dispensed with if the vacancy occurs no more than six months before the ordinary renewal elections.
C. para. 2: Timing of the extraordinary general renewal elections
14 Art. 19 para. 2 PRA regulates the timing of the extraordinary general renewal of the National Council within the meaning of Art. 193 para. 3 FC. Art. 193 FC regulates the procedure for the total revision of the Federal Constitution. Such a revision may be proposed by the People or by one of the two Councils, or it may be decided by the Federal Assembly (Art. 193 para. 1 FC). If the initiative comes from the People or if the two Councils disagree, the People shall decide on the implementation of the total revision (Art. 193 para. 2 FC). If the people approve a total revision of the Federal Constitution, a total revision of the National Council and the Council of States becomes necessary. The date for the extraordinary total renewal of the National Council is set by the Federal Council. Although the Federal Constitution does not specify any deadline or time span by which the total renewal must take place, according to unanimous doctrine it must be carried out without delay.
15 If the people approve a total revision of the Federal Constitution, an overall renewal (otherwise unknown) must also be carried out for the Council of States (Art. 193 para. 3 FC). An overall renewal of the Council of States is in principle not provided for: Since the members of the Council of States are elected according to cantonal law (Art. 150 para. 3 FC), the term of office of the members of the Council of States results from the respective relevant cantonal law. Federal law therefore does not provide for a term of office or legislative period for the Council of States. Due to the fact that an overall renewal of the Council of States has never taken place and that nothing relevant emerges from the legislative materials on Art. 19 para. 2 FC, the timing for the overall renewal of the Council of States within the meaning of Art. 193 para. 3 FC could lead to conflicts in practice. In particular, the question arises whether the Federal Council may also determine the date for the overall renewal of the Council of States on the basis of Art. 19 para. 2 PRA.
16 In the second edition of their standard work "Die demokratischen Rechte in Bund und Kantonen der Schweizerischen Eidgenossenschaft" (Democratic Rights in the Confederation and the Cantons of the Swiss Confederation), Hangartner/Kley/Braun Binder/Glaser take the view that on the basis of Art. 19 para. 2 PRA the Federal Council determines the date of the extraordinary general renewal without distinguishing between the general renewal of the National Council and that of the Council of States. In my opinion, however, Art. 19 para. 2 PRA is not relevant for the overall renewal of the Council of States within the meaning of Art. 193 para. 3 FC. The members of the Council of States are to be elected according to cantonal law even in the case of an overall renewal within the meaning of Art. 193 para. 3 FC (Art. 150 para. 3 FC). Consequently, this also means that the authorities designated for this purpose under the relevant cantonal law determine the date for the overall renewal of their members of the Council of States. This conclusion can also be supported by systematic considerations: Due to the positioning of Art. 19 para. 2 PRA in the 3rd title of the PRA "Election of the National Council", it must be assumed that the legislator intended Art. 19 para. 2 PRA to regulate exclusively the election of the National Council and thus explicitly not to interfere with the competence of the cantons.
17 It follows from the foregoing that, in the event of approval by the people of the total revision of the Federal Constitution, the Federal Council, based on Art. 19 para. 2 PRA, exclusively determines the date for the extraordinary total renewal of the National Council. Since, according to Art. 53 para. 1 PRA, the constituent session must take place on the seventh Monday after the election, the date of the constituent session of the newly elected National Council would also be known when the election date is set. Due to the equal status of the National Council and the Council of States (Art. 148 para. 2 FC), it is obvious that the constituent session of the Council of States - which will take place for the first time since 1848 - must be held on the same day as that of the National Council. A constituent session of the Council of States would be mandatory as a result of the overall renewal of both Councils. As a consequence, the members of the Council of States would have to be elected in the cantons by the day of the constituent session. In this sense, the Federal Council could invite the cantons to hold elections for members of the Council of States by this date.
18 Since an overall renewal of both Councils in the sense of Art. 193 para. 3 FC has never occurred since the beginning of the modern federal state, Art. 19 para. 2 PRA has not yet been applied.
I would like to thank Benjamin Böhler, auxiliary assistant at the Center for Democracy Aarau, for his assistance in researching the material and for his valuable comments in reviewing the text.
Bibliography
Biaggini Giovanni, Bundesverfassung der Schweizerischen Eidgenossenschaft, Kommentar, 2. Aufl., Zürich 2017.
Epiney Astrid/Diezig Stefan, Kommentierung zu Art. 193 BV, in: Waldmann Bernhard/Besler Eva Maria/Epiney Astrid (Hrsg.), Basler Kommentar, Bundesverfassung, Basel 2015.
Hangartner Yvo/Ehrenzeller Bernhard, Kommentierung zu Art. 193 BV, in: Ehrenzeller Bernhard/Schindler Benjamin/Schweizer Rainer J./Vallender Klaus A. (Hrsg.), St. Galler Kommentar, Bundesverfassung, 3. Aufl., Zürich 2014.
Hangartner Yvo/Kley Andreas, Die demokratischen Rechte in Bund und Kantonen der Schweizerischen Eidgenossenschaft, 1. Aufl., Zürich 2000.
Hangartner Yvo/Kley Andreas/Braun Binder Nadja/Glaser Andreas, Die demokratischen Rechte in Bund und Kantonen der Schweizerischen Eidgenossenschaft, 2. Aufl., Zürich 2023.
Gfeller Katja, Kommentierung zu Art. 51 BPR, in: Glaser Andreas/Braun Binder Nadja/Bisaz Corsin/Tornay Schaller Bénédicte (Hrsg.), Onlinekommentar zum Bundesgesetz über die politischen Rechte, abrufbar unter https://onlinekommentar.ch/de/kommentare/bpr51, besucht am 15.6.2023.
Mahon Pascal/Weerts Sophie, Partie VII Procédures: La procédure d’adaption et de révision de la Constitution fédérale, in: Diggelmann Oliver/Hertig Randall Maya/Schindler Benjamin (Hrsg.), Verfassungsrecht der Schweiz, Zürich 2020, S. 1883–1911.