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- Art. 3 FC
- 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. 73 PRA
- Art. 73a 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 origin
1 After the possibility of withdrawing a popular initiative unconditionally had been recognized, it became apparent that the legal regulation could not be entirely satisfactory in every respect. The Federal Assembly occasionally accommodated initiative committees with indirect (formerly known as “material”) legislative proposals. “In order not to become the plaything of changing initiative committees,” the Federal Assembly often added a conditional publication order to these, ”according to which the indirect counter-proposal is to be published in the Federal Gazette (and thus trigger the referendum period) as soon as the popular initiative has been withdrawn or rejected by the people and the cantons.” However, in the absence of the possibility of a conditional withdrawal, there was a risk that the initiative committee would not withdraw the initiative as a precautionary measure, or that a referendum would be called against an indirect counter-proposal as a precautionary measure, both of which could lead to unsatisfactory situations.
2 The possibility of the conditional withdrawal of a popular initiative in favor of an indirect counter-proposal of the Federal Assembly goes back to a parliamentary initiative of December 18, 2008. The reason for this was a specific case (indirect counter-proposal to the popular initiative “Living Water”). The amendment was adopted on September 25, 2009 and came into force on February 1, 2010.
II. Significance of the provision
A. General
3 Art. 73a of the PRA allows not only the unconditional withdrawal, which is already provided for in Art. 73 PRA, but also the conditional withdrawal in favor of an indirect counter-proposal in the form of a federal act. Such indirect counter-proposals are permissible in areas in which the Federal Assembly is competent to draft a federal act on the basis of its general legislative competence under Article 160 para. 1 FC, or the Federal Council is competent to do so under its right of initiative under Article 181 FC.
4 The importance of the indirect counter-proposal combined with the conditional withdrawal of a popular initiative should not be underestimated. Popular initiatives for a partial revision of the Federal Constitution can be used to prompt the Federal Assembly to draft or amend a federal law in a certain way. The indirect counter-proposal allows the Federal Assembly to seek alternative legislative solutions to issues addressed by the popular initiative. To a certain extent, this possibility of conditional withdrawal compensates for the lack of a legislative initiative at the federal level.
5 The possibility of the conditional withdrawal of popular initiatives has brought more commitment and structure to the political tug-of-war between the initiative committees and the Federal Assembly. The Federal Assembly does not become dependent on the popular initiative committee, and the committee does not take the unilateral risk that the indirect counter-proposal to its popular initiative will fail with the conditional withdrawal of the popular initiative. The solution found is in the interest of all parties.
6 The practical significance of the conditional withdrawal is impressively demonstrated by the statistics of the Federal Chancellery. According to these, a total of 108 out of 367 federal popular initiatives were withdrawn by November 1, 2024, of which 29 were in favor of a counter-proposal, 46 in favor of an indirect counter-proposal, and 33 for other reasons. Since 2000, a total of 41 popular initiatives have been withdrawn, 10 of which were in favor of a counter-proposal, 19 in favor of an indirect counter-proposal and 12 for other reasons.
B. Comparative law
7 The legal situation regarding the right of withdrawal in the cantons is generally largely the same as that at the federal level. However, only three cantons (Bern/Vaud/Zurich) provide for conditional withdrawal in favor of an indirect counter-proposal.
III. Commentary
A. System
8 Article 73a PRA is a specification of Article 73 PRA; the conditions of Article 73 PRA also apply to conditional withdrawals under Article 73a paragraphs 2 and 3 PRA. Accordingly, reference is made to the commentary on Article 73 PRA.
B. Para. 1
9 In Eugen Huber's 'a nutshell', this paragraph states that the withdrawal of a popular initiative is 'in der Regel unbedingt' (as a rule unconditional). The brevity is at the expense of accuracy. This norm is not intended to describe how the withdrawal of a popular initiative occurs according to experience. Contrary to its wording, it is not an empirical statement. Rather, it is to be understood – normatively – to mean that a withdrawal must always (as a rule) be unconditional, unless a permissible exception applies.
10 The only permissible exception is regulated in para. 2.
11 Accordingly, the initiative committee is prohibited – as was already the case before the introduction of Art. 73a of the PRA – from making the withdrawal of the popular initiative dependent on any condition other than that regulated in para. 2. This regulation limits the options for action and thus also the political influence of the initiative committee. In particular, however, it also limits the potential for abuse, strengthens the binding nature of the declaration of withdrawal and the trustworthiness of this bargaining chip.
12 The unconditional withdrawal is likely to occur if the initiative is countered by a direct counter-proposal that will definitely be put to the vote of the people and the cantons; it is also likely in cases where the initiative committee is already satisfied with the concessions made by the authorities or no longer sees a real chance of its concerns being addressed.
C. Para. 2
13 The only condition that can be attached to a withdrawal is, according to Art. 73a para. 2 PRA, that the indirect counter-proposal is not rejected in a popular vote (cf. “however” in the first sentence of para. 2).
1. “Indirect counter-proposal”
14 The initiative committee may withdraw the popular initiative in favor of a (single) “indirect counter-proposal” (Art. 73a paras. 2 and 3, Art. 75a para. 2 PRA). In the German-language version, this is distinguished terminologically from the “counter-proposal” (Art. 139 para. 5 sentence 3 and Art. 139b para. 1 FC; Art. 76 para. 1 sentence 1, para. 1 let. b, para. 3 sentence 1 PRA) and from the “direct counter-proposal” (title of Art. 76 PRA). In the French (contre-projet) and Italian («contro-progetto») versions, however, a uniform term is used. Legal scholars are critical of this terminological distinction and often use the uniform term «counter-project»; instead of distinguishing between direct counter-projects and indirect counter-proposals, they often only distinguish between direct and indirect counter-projects – although this term is not entirely accurate either.
15 Direct counter-proposals within the meaning of Art. 139 para. 5 sentence 3 and Art. 139b para. 1 FC are at the same legislative level as the popular initiative, i.e. at the federal level always at the constitutional level. Indirect counter-proposals, on the other hand, can in principle be at any lower legislative level. By contrast, an indirect counter-proposal within the meaning of Art. 73a para. 2 and 3 PRA is, as the wording of the law expressly states, at the legislative level. As a resolution on a federal law, it is only subject to an optional referendum, and in the event of a referendum being held, a majority of the people is sufficient (Art. 141 para. 1 let. a in conjunction with Art. 142 para. 1 FC).
16 According to the message, the only legal connection between an indirect counter-proposal and the popular initiative concerns the deadline for scheduling the vote on the popular initiative and for the authorities to process the popular initiative. The substantive requirement for such an extension of the deadline is that the indirect counter-proposal is “closely related to the popular initiative” (see Art. 97 para. 2 and 105 para. 1 ParlA). The Federal Supreme Court had already developed this principle in the context of its case law on cantonal popular initiatives. It is often understood in doctrine and case law as a special form of the principle of unity of subject matter. In the light of Art. 34 para. 2 FC, the indirect counter-proposal must maintain equal opportunities. The indirect counter-proposal is often identified as such by a corresponding linking clause or by an alternative clause that contains a reservation of publication in view of the incompatibility of the indirect counter-proposal and the popular initiative.
17 The conditional withdrawal therefore occurs under the suspensive condition that the indirect counter-proposal comes into force, or more precisely, that the entry into force of the indirect counter-proposal can no longer be prevented by any legal barrier. The risk that a referendum will be held against the indirect counter-proposal and that the indirect counter-proposal will be rejected in the referendum is therefore no longer borne by the initiators alone.
18 Based on its legislative powers, the Federal Assembly may make an indirect counter-proposal to a popular initiative in the form of a federal act. This applies to all forms of popular initiative for a partial revision of the Federal Constitution. However, in the absence of a proposal for a specific outcome, some legal scholars believe that it is not permissible to make an indirect counter-proposal to a popular initiative for a total revision of the Federal Constitution.
2. Time of withdrawal
19 For a conditional withdrawal to be possible, the Federal Assembly must have approved the indirect counter-proposal 'at the latest at the same time as the final vote on the popular initiative'. This deadline is intended to prevent the conditional withdrawal from being open to any conditions.
20 If the indirect counter-proposal is rejected in the popular vote, the Federal Council must submit the popular initiative within ten months of the popular vote (Art. 75a(a) para. 2 PRA).
3. Form of conditional withdrawal
21 The conditions for a withdrawal (majority requirement) set out in Art. 73 para. 1 PRA also apply to a conditional withdrawal. The majority requirement for the conditional and unconditional withdrawal must be achieved individually in order to validly withdraw the popular initiative. If both the conditional and the unconditional withdrawal receive a majority, a tie-breaking question must be decided to determine whether the withdrawal should be conditional or unconditional.
4. Procedure for conditional withdrawal
22 Art. 73 para. 2 PRA also applies to conditional withdrawal. A template for the declaration of withdrawal is provided in the Annex to the VPR. The initiative committee is not obliged to use this template for the declaration of withdrawal. In all cases, the declaration of withdrawal must state that the conditions for conditional or unconditional withdrawal have been met.
D. Para. 3
23 The conditional withdrawal of a popular initiative applies as soon as the date of entry into force of the indirect counter-proposal is known, i.e. when no legal barrier (referendum or popular vote) can prevent it from coming into force. When this is the case is listed in a-c:
1. Para. a and para. b
24 Let. a covers those cases in which no valid signatures are submitted in favour of a referendum against the indirect counter-proposal, let. b those in which valid signatures are submitted but not in the required number. If no valid signatures are submitted in favour of a referendum (Art. 73a para. 3 let. a PRA) or if the constitutional quorum is not reached by more than half (some of the cases under Art. 73a para. 3 let. b PRA), the Federal Chancellery merely publishes a notice in the Federal Gazette that the collection period has expired without being used (Art. 72 para. 1 second sentence PRA). There is no right of appeal (Art. 80 para. 2 second sentence PRA). If the quorum is missed by a smaller margin (other cases under Art. 73a para. 3 let. b PRA), the Federal Chancellery issues a ruling that a referendum has not been held. This opens up the possibility of legal action (Art. 66 para. 1 in conjunction with Art. 80 para. 2 PRA).
25 Unlike a popular initiative – and as suggested by lit. b – in the case of an optional referendum, no actual referendum text (“referendum”) is submitted, but signatures of voters against an enactment or an amendment to an enactment. It is also inappropriate to speak of the failure of “a” submitted referendum; it would be more appropriate to speak of “the referendum”. Regardless of how many referendum committees or eligible voters submit signatures in favor of the referendum – and for whatever reasons they do so – their signatures are in favor of the referendum against the indirect counter-proposal.
26 In both cases (lit. a and b), what is relevant is that the referendum does not take place and thus there is no longer any legal reason preventing the indirect counter-proposal from coming into force. With regard to the point in time, differences may arise due to the possible contestability of cases under b.
2. Para. c
27 Under c, the referendum against the indirect counter-proposal has been held, but was rejected in the popular vote. With the confirmation of this result, it is clear that there are no longer any legal obstacles to its entry into force.
Bibliography
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Ehrenzeller Bernhard/Egli Patricia/Hettich Peter/Hongler Peter/Schindler Benjamin/Schmid Stefan G./Schweizer Rainer J. (Hrsg.), Die schweizerische Bundesverfassung, St. Galler Kommentar, 4. Aufl., Zürich 2023 (= SGK BV4).
Glaser Andreas/Braun Binder Nadja/Bisaz Corsin/Tornay Schaller Bénédicte (Hrsg.), Onlinekommentar zum Bundesgesetz vom 17.12.1976 über die politischen Rechte (BPR) (= OK-Autor).
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Tschannen Pierre, Staatsrecht der Schweizerischen Eidgenossenschaft, 5. Aufl., Bern 2021.
Wertenschlag Rudolf, Strukturen und Formen der Volksinitiative. In: Wertenschlag/Lombardi, Formen der Volksinitiative im Bund: heute und morgen, Basel/Frankfurt am Main 1990, 55–115.
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