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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
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- Art. 29a FC
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- Art. 32 FC
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- 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
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- 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
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- 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
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- Art. 40 PRA
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- Art. 55 PRA
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- 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. Historical
1 The establishment of a deadline for the Federal Council within which initiatives and subsequent constitutional amendments must be submitted to a vote dates back to the revision of the Political Rights Act and the former Business Transactions Act of 21 June 1996, which entered into force on 1 April 1997 (I.B.). Previously, the successive legislations regulating the procedure for popular initiatives only contained provisions on the deadlines for the parliamentary handling of initiatives (I.A.). Since the voting deadlines in Art. 75a PRA begin with the end of the consideration of the initiative in the Federal Assembly or the expiry of the deadlines provided for this purpose, it is nevertheless useful to place them briefly in this more general history of deadlines for the treatment of initiatives.
A. Time limits for consideration (since 1892)...
1. Introduction (1892)
2 From the very beginning (1891), the constitutional provision that introduced the right of initiative for a partial revision of the Constitution did not set a time limit for the authorities to comment on the initiative and put it to a vote (Art. 121 aBV). The same applies to the constitutional regulation of the initiative for a total revision of the Constitution (Art. 120 aBV; cf. also Art. 113 aBV 1848). This silence is still found today in Articles 138–139 FC.
3 By contrast, the first legal regulation of the modalities of the right of initiative by the Federal Act of 27 January 1892 on the Procedure for Petitions for Popular Initiatives and Votes on the Revision of the Federal Constitution set the Federal Assembly a deadline of one year to decide whether to accept or reject the successful initiatives for the partial revision of the Constitution (Art. 7 and 8). In comparison, the law does not provide for a deadline within which the initiatives must be voted on after they have been dealt with by the Federal Assembly. Initiatives aimed at a total revision of the Constitution must be put to the vote "without further ado", as the law does not provide for a specific deadline for this (Art. 6).
2. Expansion and division of the subject matter (1950; 1962; 1978)
4 In the course of the 20th century, the deadline for dealing with initiatives was extended several times. In 1950, the Federal Assembly extended the time limit to two years if it was a generally formulated initiative (Art. 7) and to three years if it was dealing with a fully elaborated initiative (Art. 8). In contrast to the Federal Council, which proposed to dispense with a fixed deadline and instead introduce a more flexible regulation that could cover both times of crisis and normal situations, the Councils adhered to the principle of a fixed deadline. However, it emerged from the debates that the deputies were aware that exceptional situations could test compliance with this deadline. The amendment still did not introduce a voting deadline and confined itself to stating that the initiative would be put to the vote "without delay" "if the two Councils are unable to reach a concordant decision within the statutory period" (Art. 9).
5 In 1962, the adoption of the new Federal Act on Popular Initiatives was accompanied by a division of the subject matter: the rules on the handling of initiatives by the Federal Assembly were inserted into the new GVG (Art. 25 ff.), to which the Act on Initiatives refers (Art. 6), retaining for its part only those procedural rules that directly concern citizens (later female citizens).
6 The legal deadlines for dealing with initiatives underwent a second extension in 1976 on the occasion of the adoption of the CPD (entry into force 1978): they increased from 2 to 3 years for generally formulated initiatives and from 3 to 4 years for initiatives formulated from scratch (art. 26–27 CPD). Since 1974, the Federal Assembly has also had the option of extending these deadlines by one year "if the decisions of the Councils on a counter-proposal or a decree closely related to the popular initiative diverge" (Art. 29 para. 4 CPTA). All in all, the handling of an initiative can thus extend over a period of 4 or 5 years, not including the time needed for the Federal Council to vote on the initiative, as this has not yet been regulated.
3. Reduction (1997)
7 The revision of the PrHG and the EHG in 1996 (entered into force in 1997) brought about a complete paradigm shift. It goes back, among other things, to a motion of the National Council's State Policy Committee in 1988 and is a reaction to the time limit – often 6, 7 years, sometimes even longer – within which votes on initiatives take place, which is perceived as being too long.
8 In contrast to earlier revisions, the 1996 revision accordingly shortens the time limits for dealing with initiatives: The Federal Assembly now has two years to decide on generally formulated initiatives and 30 months to decide on initiatives drafted from scratch (Art. 26–27 GVG). The latter period may be extended by one year "if at least one of the councils has adopted a decision on a counter-proposal or on a legislative act that is closely related to the popular initiative" (Art. 27 para. 5bis GRG).
9 This regulation of deadlines for parliamentary treatment is taken over when the GVG is replaced by the ParlG of 13 December 2002. The above-mentioned deadlines therefore still apply today (Art. 96, 100, 103, 105 ParlG).
B. ...on time limits for votes (since 1997)
1. Introduction (1997)
10 In addition to shortening the deadlines for dealing with initiatives, the 1996/1997 revision implemented its aim of shortening the overall duration of the initiative process by introducing additional deadlines.
11 On the one hand, the Federal Council now has a period of nine months to put the initiative to the vote. This period begins with the Federal Assembly's final vote on the initiative, but no later than the expiry of the statutory deadlines for dealing with the initiative (Art. 74 para. 1 PRA as amended until 31 December 2002). In the eyes of the Councillors, it takes account of the Federal Council's need for a certain degree of flexibility in distributing the various bills that are ready for a vote among the available deadlines, as well as the fact that in an election year there is no vote in September. The Federal Assembly may extend it without an explicit time limit "if the initiative is opposed by a legislative act (indirect counter-proposal)" (Art. 74 para. 2 PRA as amended until 31 January 2010). This provision is intended to allow the authorities to await the fate (in a referendum, if necessary) of the indirect counter-proposal before submitting the initiative to the voters.
12 On the other hand, if an initiative drafted in general terms is accepted, the Federal Assembly must adopt the corresponding constitutional amendment within two years (Art. 26 para. 2 and 6 GG). The constitutional amendment in question must be put to the vote within a total of 30 months (Art. 74 para. 3 PGR as amended until 31 January 2010).
2. Extension (2003)
13 In the early 2000s, two popular initiatives calling for a drastic shortening of the procedure for dealing with impromptu initiatives (6 and 12 months in total, respectively) failed already at the signature collection stage (initiative "So that popular initiatives are put to the vote within six months [...]") or at the vote stage (initiative "For faster direct democracy [...]").
14 In contrast, the deadline for voting on an initiative was extended to 10 months by a revision of the PRA in 2002, which came into force in 2003. This amendment was not included in the Federal Council's draft. The National Council's State Policy Committee included it in the revision without providing any justification for it in the parliamentary debate. Only the then Federal Chancellor commented on this amendment and spoke of correcting an inequality, but without explaining it in more detail.
3. Modalities in the case of a conditional withdrawal of an initiative, deadline for voting on the implementation of a generally formulated initiative, clean-up (2010)
15 Voting deadlines undergo a new development with the revision of the PRA of 25 September 2009 (entered into force on 1 February 2010), which introduces the right to withdraw an initiative on condition that the indirect counter-proposal adopted by the Federal Assembly is not rejected in the popular vote (art. 73a para. 1 PRA). This new instrument in fact requires a specification of the deadline for the vote on the initiative, which is applicable if the rejection of the indirect counter-proposal prevents the conditional withdrawal from taking effect (Art. 73a para. 3 PRA e contrario), making the authorities' obligation to put the initiative to the vote topical. In this case, the law now provides for a period of 10 months for the Federal Council as well, which runs from the confirmation of the result of the vote on the counter-proposal in accordance with Art. 15 para. 1 PRA (Art. 75a para. 2 PRA). The former Art. 74 para. 2 PRA, which allowed the Federal Assembly to extend the deadline for voting on an initiative if the initiative was opposed by an indirect counter-proposal, is repealed.
16 In this revision, the deadline for voting on a bill to implement a generally formulated initiative was also aligned with the other deadlines: While the deadline for consideration and voting was 30 months in total and ran from the submission of the initiative, it is now 10 months and runs from the Federal Assembly's final vote on the revision (Art. 75a para. 3 LDP). This revision, which is presented as a simple reorganisation of the matter, actually leads to an extension of the deadline for the implementation process. Indeed, the Federal Assembly continues to have 2 years, i.e. 24 months, to prepare the implementation bill (Art. 104 para. 1 ParlG), plus the 10 months granted to the Federal Council to organise the referendum. In total, the handling and voting of an implementation bill can thus extend not only over 30, but over 34 months.
17 Finally, with the 2009/2010 revision, the provision on the deadlines for the referendum bill was subjected to a (genuine) formal clean-up. The provision in question is now entitled "Referendum" instead of "Treatment" – the former expressing the content more precisely than the latter – and is found in Art. 75a LDP and no longer in Art. 74 LDP (repealed) – in the more or less chronological logic of Title 5 of the LDP.
4. Extension of time limits in election years (2015)
18 The last amendment to Art. 75a LDP to date stems from the LDP revision of 2014, which was dedicated to the election procedure for the National Council. While the draft submitted by the Federal Council did not propose any change to the voting deadlines, the National Council decided in its first reading and without the proposal being up for debate to extend the various deadlines in Art. 75a LDP to 12 months. Instead of going along with this change, the Council of States adopted an alternative regulation proposed by its State Policy Commission, according to which the voting deadlines would be extended by 6 months if the start of the deadlines was between 10 and 3 months before the next general renewal of the National Council. This version finally prevailed in the National Council and entered into force on 1 March 2015 (Art. 75a para. 3bis PRA). However, it is not clear from the deliberations in the Councils what criteria the SPK-S used to delimit the relevant period for the extension as well as the duration of the extension specifically in months.
II. SIGNIFICANCE OF THE PROVISION
A. General
1. Background
19 The popular initiative process comprises several phases. After the initiative has been launched (Art. 68–69 PRA), signatures collected and submitted (Art. 71 PRA), the Federal Chancellery establishes the existence of the initiative (Art. 72 PRA), whereupon it is up to the Federal Council to submit a draft federal decree and a dispatch on it to the Federal Assembly (Art. 97 ParlG). Thereafter, a parliamentary phase of dealing with the initiative begins, at the end of which the Federal Assembly decides on the validity and appropriateness of the initiative and, if necessary, on the adoption of a direct or indirect counter-proposal (Art. 100 ff. ParlG).
20 If the initiative is not withdrawn (Art. 73–73a FC), the guarantee of the right of initiative (Art. 34 para. 1 FC) subsequently obliges the authorities to submit the successful and valid initiatives to the people for a vote (initiative for the total revision of the Constitution [Art. 138 para. 2 FC], generally formulated initiative [Art. 139 para. 4 sentence 2 FC]) or to the people and the cantons (initiative formulated from scratch [Art. 139 para. 5 sentence 1 FC]). The case law on standing initiatives, the substance of which is, however, also relevant at federal level, states that the vote must take place within a reasonable period of time so that the initiative retains its relevance. Similarly, the guarantee of the right of initiative dictates that initiatives drafted in general terms that have been adopted be implemented within a reasonable period of time by drafting the constitutional amendment they call for (Art. 139 para. 4 sentences 1 and 3 FC).
21 At the federal level, the task of ordering and organising votes is entrusted to the Federal Council (Art. 10 et seq. PRA, cf. also Art. 58, 59c and 73 para. 2 PRA). In particular, it is incumbent on it to set the voting dates and to distribute the voting documents among the various dates (Art. 10 para. 1bis PRA).
22 Art. 75a LDP must be seen in this context. Its purpose is to concretise the temporal modalities of the obligation to put initiatives to the vote or implement them within a reasonable period of time. To this end, it sets a specific deadline (in principle 10 months) for the Federal Council to put a popular initiative (paras. 1–2) or a constitutional amendment following a generally formulated initiative (para. 3) to the vote. Only the voting period in the narrower sense, i.e. from the (actual or fictitious) end of the parliamentary treatment period, has its seat in Art. 75a LDP. The deadlines within which the Federal Assembly must decide on a popular initiative and, if necessary, prepare an implementation bill are regulated in Art. 97 ff. ParlG, to which Art. 75a para. 4 PRA expressly refers.
23 Art. 75a LDP is located in the 5th title of the LDP, which is dedicated to the popular initiative and whose order of provisions more or less follows the course of the corresponding procedure. In contrast, it does not apply to the vote on a matter subject to an optional or compulsory referendum, even if it is a constitutional amendment initiated by the Federal Assembly. Strictly speaking, Title 5 applies indiscriminately to all forms of initiative. However, the provisions of this title were primarily designed for initiatives aimed at a partial revision of the Constitution. Some of these provisions are therefore inappropriate and consequently not applicable to initiatives aiming at a complete revision of the Constitution. However, if they are not incompatible with this type of initiative, the rules of Title 5 remain relevant, if necessary in a way adapted to the specificities of a full constitutional amendment initiative. In our view, this is the case with Art. 75a para. 1 (time limit for voting on an initiative) and 3bis (extension of this time limit) PRA.
24 It follows from the above that Art. 75a PRA is part of the system for implementing the right of popular initiative. For this reason, in our view, it enjoys the protection afforded by the guarantee of political rights (Art. 34 para. 1 FC). Indeed, this guarantee requires that "the totality of the rules establishing and organising political rights shall be respected". However, since the violation of Art. 75a PRA is not accompanied by a concrete sanction and cannot be invoked before a court, this fundamental protection remains theoretical. In the current state of legislation, it has no concrete impact on practice.
2. Function
25 The time limits for dealing with and voting on an initiative or its implementation concretise the right of initiative by weighting several divergent democratic interests in such a way that their respective consideration is ensured while respecting the principle of proportionality (Art. 5 para. 2 FC).
26 On the one hand, there is an interest in the voters deciding quickly on the initiative in order to ensure the topicality of the issue, which depends on the legal and factual conditions under which the initiative takes place. Thus, the initiative committees are de facto forced to abandon the initiative if many years have passed since its launch. In addition, the longer it takes to bring an initiative to the ballot, the more the electorate changes and differs from the electorate that contributed to the initiative's coming into being. An excessively long period between the submission of an initiative and the vote on it may thus amount to an undermining of the right of initiative and thus violate the guarantee of political rights (Art. 34 para. 1 FC).
27 On the other hand, the authorities have an interest in having sufficient time to comment on initiatives and to put them to the vote. In addition to parliamentary treatment in the strict sense (cf. Art. 139 para. 4 1st and 3rd sentences and 5 2nd sentence, 173 para. 1 let. f FC), which is not covered by Art. 75a LDP (cpr para. 4), this time must cover the period necessary to organise and conduct the vote in such a way as to ensure the free formation and the faithful and certain expression of the will of the people (Art. 34 para. 2 FC). This task includes not only a material dimension (announcement, preparation of material, etc.), but also an intellectual one. Indeed, the Federal Council must distribute the subjects to be put to the vote among the various dates available – 3 or 4 per year, fixed in advance (art. 2a FOPI) – taking into account various factors that may influence the free formation and the faithful and certain expression of the popular vote, in particular the time required for the debate (art. 10 para. 1bis FOPI), the complexity, the contradictory nature or even the tendency to moderate the debate on the various proposals.
3. Nature and sanctions of the time limits of Art. 75a PRA
28 The deadlines for parliamentary consideration of an initiative are often referred to either as forfeiture deadlines – after the expiry of which parliament is closed and can no longer deliberate on the initiative and a counter-proposal – or as order deadlines – the violation of which as such does not entail any legal consequences, but in certain cases may amount to an unjustified refusal to take a decision. Jurisprudence leaves it up to the cantons to decide whether or not to provide for time limits and whether or not to introduce time limits of one kind or another. At the federal level, the deadlines for dealing with the initiative in Art. 100 and 103 (cum 105) ParlG are forfeiture deadlines: if the Federal Assembly has not passed a resolution within these deadlines, the Federal Council submits the initiative to a vote (Art. 106 ParlG). By comparison, the period granted to the Federal Assembly for drafting a constitutional amendment on the basis of an initiative drafted in general terms (Art. 104 para. 1 ParlG) is a period of order (cf. also Art. 75a para. 3 PRA).
29 However, the distinction between periods of order and periods of realisation is not very suitable for qualifying the deadlines for votes (on an initiative or a subsequent constitutional amendment) in Art. 75a PRA. Indeed, it makes no sense to state that after the deadline has expired, the Federal Council's right to put the initiative or its implementation to a vote lapses: the vote is the purpose of the initiative procedure. Nevertheless, according to the present commentary, the voting deadlines are not purely regulatory deadlines. Rather, the interpretation of Art. 75a PRA leads to the conclusion that they are binding deadlines.
30 First of all, the three paragraphs of Art. 75a PRA that set deadlines (paras. 1–3) are formulated categorically: they do not contain any specification such as "in principle". Only one case of deadline extension is explicitly regulated (Art. 75a para. 3bis ODSG). Secondly, although no traces of a discussion on the nature of the time limits can be found in the preparatory work, at no point in the debates is the possibility reserved for the Federal Council to exceed these time limits. On the contrary, it seems to us that the chambers start from the principle that the Federal Council is obliged to respect these deadlines. This is particularly evident from their subsequent decisions to extend the deadlines for votes from 9 to 10 months and to provide for an automatic extension of 6 months in the event of an election year (Art. 75a para. 3bis PRA). If the deadlines in Art. 75a LDP were only regulatory deadlines, such adjustments would be superfluous. It is clear from this that the Federal Assembly has opted for a clearly defined regulation of the time frame that applies to the handling and voting of initiatives. The purpose of setting a deadline for the Federal Council – to prescribe a rhythm for voting on initiatives – also argues against classifying it as a regulatory deadline. Finally, it would not be very coherent if the deadlines set for the Federal Council were not binding, while the deadlines set for the Federal Assembly are binding.
31 Failure to comply with the voting deadlines of 10 or 16 months thus violates Art. 75a PRA and the guarantee of political rights (Art. 34 para. 1 FC). However, cases remain reserved in which a failure to meet a deadline is based on a legal basis, respects the principles of public interest and proportionality and preserves the substance of the deadline (Art. 5, 9 FC). This is then an alternative concretisation of the modalities of the right of initiative. As will be explained later, the present commentary assumes that the standstill of time limits can be based directly on the LDP in certain circumstances.
32 Apart from this, the mandatory character of the deadlines in Art. 75a LDP is not accompanied by any sanctions. On the one hand, exceeding a deadline does not entail any disadvantages for the Federal Council (cannot entail any disadvantages). On the other hand, citizens have no legal recourse under these circumstances to assert the violation of their political rights. Indeed, Art. 189 para. 4 FC precludes acts of the Federal Council from being brought before the Federal Supreme Court, unless the law provides for an exception. Even if, strictly speaking, the present case concerns an omission (the failure to submit an item to a vote within a certain period), it nevertheless concerns an act that falls within the competence of the Federal Council. Under current law, however, the logic of Art. 189 para. 4 FC precludes any legal protection with regard to the Federal Council's competences in the area of political rights. In the absence of a legal provision introducing an exception to this rule, the Federal Supreme Court cannot hear appeals against the denial of justice (Art. 94 BGG), which would constitute an unjustified delay or refusal to order the vote. To our knowledge, however, this question has never arisen, so there is no case law on the subject.
4. Expiry of time limits under Art. 75a PRA
a. Applicable rules
33 Apart from a specific ground for extension (para. 3bis), Art. 75a PRA does not contain any rules on the expiry of the time limits set forth therein. The LDP also does not contain a general rule on the calculation, extension, suspension and interruption of time limits.
34 According to the present commentary, the Federal Act on Administrative Procedure, which contains rules on time limits (Art. 20 ff. VwVG), is not applicable to the time limits of Art. 75a LDP. Admittedly, the application of the VwVG to the matter of federal political rights is not excluded, even if it is not an "administrative matter" (Art. 1 para. 1 VwVG) in the strict sense. Admittedly, it could also be argued that the Federal Council (Art. 1 para. 2 let. a VwVG) issues a (general) ruling when it determines the subjects of a vote (Art. 10 para. 1bis PRA). However, the act that preserves the time limit according to Art. 75a PRA is not the fixing of the agenda of a vote, but the vote itself, i.e. an act of its own kind. Since a vote cannot be equated with an administrative order (cpr Art. 5 VwVG), its procedure is not subject to the procedural rules of the VwVG.
35 For the same reasons, it seems to us that the European Convention on the Calculation of Time Limits, which applies to the calculation of time limits in particular "in [...] administrative matters", does not regulate time limits for votes on an initiative or its implementation.
36 In these circumstances, and in the absence of an applicable rule of enacted law, it is in our view the general principles of law in which to look for rules to govern the running of the time limits of Art. 75a PRA.
b. Calculation
37 The three time limits of Art. 75a LDP (paras 1, 2 and 3) are time limits set in months. According to a general principle (cpr e.g. Art. 77 para. 1 item 3 CO, Art. 142 para. 2 CPC, Art. 110 para. 6 SCC, Art. 4 item 2 European Convention on the Agreement of Time Limits) they are calculated in quantiles: The time limit ends on the day of the last month corresponding to the day on which it began to run or, in the absence of a corresponding date, on the last day of the last month. Consequently, if the 10-month period begins to run on 22 December (dies a quo), it ends on 22 October (dies ad quem).
c. Extension
38 Art. 75a para. 3bis FADP explicitly provides a reason for extending the time limits of paras. 1–3: If the time limit begins to run between 10 and 3 months before the next general renewal of the National Council, it is extended by 6 months.
39 According to the present commentary, this is to be seen as a comprehensive regulation of the extension of the time limit of Art. 75a PRA. The silence of the DPA on any further grounds for extension is indeed qualified. This conclusion is supported not only by an argument a contrario in connection with the wording of Art. 75a, para. 3bis FADP, but also by a comparison with the deadlines for dealing with matters laid down in the ParlG (Art. 97 ff. ParlG), where the grounds for extension are also precisely delimited (Art. 97, para. 2, 105, para. 1 ParlG). Moreover, although the admissibility of other grounds for extension is neither expressly reserved nor excluded in the preparatory works, the general development of the rules on treatment and voting deadlines tends to indicate that the time frame is precisely delimited by the Act and that there is no room for other grounds for extension. Finally, from a teleological point of view, the legislature has already taken into account the interest of the Federal Council in having sufficient time to organise the vote by granting a relatively long deadline when compared to the time actually used in practice.
40 Since no other provision reserves an extension of the deadlines of Art. 75a PRA, this is excluded, even if the Federal Assembly and/or the initiative committee agree to it. Indeed, it is a general principle that a statutory time limit cannot be extended (e.g. Art. 144 CPC, Art. 89 para. 1 CCP). The situation is different, however, with regard to the question of whether time limits can be suspended under Art. 75a FADP.
d. Suspension
41 The extension of time limits differs from the suspension of time limits. While both postpone the expiry of the time limit, the extension of the time limit extends the time limit, while the suspension pauses the expiry of the time limit. If the person or authority to whom a time limit has been set can take steps to meet the time limit during the suspension, the suspension is in effect similar to an extension, since the days of suspension extend the duration of the time limit accordingly. If, on the other hand, the standstill corresponds to a period during which the completion of the steps to meet the deadline (in this case, the organisation and holding of a vote) is impeded, the standstill does not amount to an extension: the usable time available to complete the steps remains the same as that originally set in the deadline.
42 The LDP does not contain an explicit rule – neither general nor specific to Art. 75a LDP – referring to the standstill of time limits. Since the rule on the extension of time limits provided for in Art. 75a para. 3bis is exhaustive, according to this commentary a standstill of these time limits, which would in fact amount to an extension of time limits, is excluded.
43 On the other hand, the qualified silence of Art. 75a FADP on the grounds for an extension of time limits does not, in our view, militate against the assumption that there is a gap in the law with regard to the (real) inhibition of time limits. Unlike the question of the extension of time limits, the text of Art. 75a FADP does not exclude or reserve inhibition, but does not regulate any aspect of it. As explained, its aim is to maintain a balance between the interest in preserving the timeliness of an initiative and the interest in giving the Federal Council sufficient time for the material and intellectual preparation and implementation of the vote. This interest is particularly in the service of guaranteeing free education and the faithful and certain expression of the will of the people (Art. 34 para. 2 FC). However, if this time is not available to the Federal Council or if votes cannot take place within the ordinary time frame (Art. 2a FOPI), this balance is disturbed. Finally, there is no indication of a historical will on the part of the legislature to exclude a standstill of the time limit under certain extraordinary circumstances.
44 It is difficult to close such a gap in general, modo legislatoris, by anticipating all hypotheses and circumstances of an inhibition. In the interest of legal certainty, a revision of the law in this sense would be preferable. A suspension of time limits must in any case respect the general principles of state activity (Articles 5, 8 and 9 FC). It must not have the aim or effect of disadvantaging or favouring one initiative over another: As a difference in treatment, it must be based on an objective and serious reason and affect equally all submissions that are within the same time frame (Art. 8 para. 1 FC). It must also be suitable and necessary to achieve the objective pursued (Art. 5 para. 2 FC), i.e. to enable the Federal Council to make good use of the entire period of 10 or 16 months for organising and holding the vote.
45 Suspension on the basis of the PRA can therefore only be considered in a situation where the organisation and/or conduct of the vote is impeded. This may be the case, for example, if the country is at war, there is a general power cut or even necessary health measures make voting and/or counting impossible. However, the mere occurrence of these circumstances is not sufficient. They must also actually and concretely lead to an obstruction.
46 The concrete effect and duration of the suspension should, moreover, depend on the nature of the impediment(s): Does it concern the organisation of the vote, its conduct or both? For example, if an event (war, general blackout, pandemic, etc.) prevents the holding of a vote while the legal deadline for voting expires, it is reasonable to assume that the deadline will be suspended until the next possible voting date. On the other hand, the mere impossibility of holding a vote does not exempt the authorities from working to prepare the next possible vote if the preparatory steps are not hindered. Thus, if an event temporarily prevents the holding of a vote, but the Federal Council still has sufficient time to put the initiative to a vote at a later date and is in a position to take the relevant preparatory steps, it cannot be assumed that the time limit is inhibited.
47 An assessment of the two-month suspension of the voting deadlines of Art. 75a PRA ordered by the Federal Council on 20 March 2020 in response to the Covid 19 pandemic (Art. 1 para. 1 let. c Ordinance of 20 March 2020 on the Suspension of the Deadlines for Federal Popular Initiatives and Referendum Petitions at Federal Level) can illustrate the above. Specifically, this deadlock only concerned the initiative "For moderate immigration (limitation initiative)", whose statutory voting deadline would have expired on 20 October 2020 and was therefore extended until 20 December 2020. The Federal Council had originally scheduled the referendum on this initiative for 17 May 2020, but cancelled it – also due to the Covid 19 pandemic – and ruled out holding referendums until 31 May 2020 (Art. 2 para. 1 let. b Ordinance on the Standstill of Deadlines). As early as 29 April 2020, it decided that the referendum would ultimately have taken place on 27 September 2020, i.e. still within the deadline of 10 months from the vote of the Federal Assembly.
48 Even if the Federal Council was ultimately able to meet the voting deadline as if it had not issued a suspension, the procedure of suspending the deadline "pre-emptively" can be viewed critically with regard to possible future crisis situations. Indeed, on 20 March 2020, at the time of the annulment of the 17 May 2020 vote, the Federal Council still had 7 months to plan and organise a new vote, which could take place as early as after 31 May 2020, leaving a period of almost 5 months (until 20 October 2020) to hold the vote. In addition to the ordinary date of 27 September 2020 (Art. 2a para. 1 let. c CDP), the Federal Council had the possibility to set additional voting dates during this period for overriding reasons (Art. 2a para. 2 CDP). Under these circumstances, the suspension of the deadline for two months was not necessary and for this reason violated the principle of proportionality (Art. 5 para. 2 FC).
49 According to the interpretation proposed in this commentary, an inhibition of the time limits of Art. 75a LDP, which is within the framework described above, does not require an additional legal basis, as it can be based on the LDP, which was supplemented in a permissible manner. Different – and exorbitant to the subject matter of this commentary – is the question of whether there are other legal bases that allow for an inhibition of the time limits in question.
e. Interruption
50 In principle, the time limits of Art. 75a LDP run without interruption until the performance of the act at which they are aimed, i.e. the holding of a referendum (on an initiative [paras. 1–2] or on a constitutional amendment adopted as a result of an initiative [para. 3]).
51 However, the rare but not excluded case must be reserved that the referendum in question is later declared invalid. In such a situation, it must be noted that a new (full) voting period begins to run. In other words, the invalidated vote then acts as an act interrupting the original voting period.
52 Similarly, if an initiative is withdrawn on condition that an indirect counter-proposal enters into force (Art. 73a para. 2 PRA), if the people reject the counter-proposal after a vote with a valid result (Art. 15 PRA), which starts the period for voting on the initiative under Art. 75a para. 2 PRA, but the vote on the counter-proposal is later the subject of a retrospective "revision request", this request must, in our opinion, interrupt the period for voting on the initiative.
B. Comparative cantonal law
53 Most cantons know a system of voting deadlines for initiatives or, if they have to be voted on, for the implementation bills of adopted, generally formulated initiatives. Schematically, three systems can be distinguished:
54 Some cantons set an "absolute" voting deadline, i.e. a deadline that runs from the submission or the ascertainment that the initiative has come to fruition (Art. 29–30 KV/ZH cum § 132, 137 GPR/ZH; Art. 28 para. 3 KV/UR; Art. 64 FC/OW; Art. 55 FC/NW; Art. 119 para. 1, 124, 125 LEDP/FR; Art. 32 para. 1–2 FC/SO; § 24a IRG/BS; § 29 FC/BL; Art. 15 FC/GR; § 66 GPR/AG; Art. 82 para. 1 FC/VD; Art. 33 para. 2, 100 para. 2 FC/VS).
55 In other cantons, the voting deadline is "relative": it runs from the end of the discussion of the initiative in parliament, similar to the deadlines in Art. 75a para. 1 and 3 PRA (Art. 35 para. 5, 79 para. 2 KV/ZG; Art. 81 para. 2, 82 para. 2, 83 para. 3 StWG/TG).
56 Finally, some cantons do not know any voting deadlines. However, they can set deadlines for the authorities to deal with the initiative and/or to prepare an implementation concept (Art. 59 para. 4 FC/BE cum Art. 149 ff. StWG/BE; Art. 33 FC/SZ; Art. 55 para. 3 FC/AR; Art. 44 ff. RIG/SG; Art. 62–63 FC/GE; Art. 76 FC/JU).
57 Several cantons also combine elements from different systems. In the canton of Lucerne, for example, an absolute voting period of six months governs the initiative for the total revision of the cantonal constitution (Art. 82l KRG/LU, cpr Art. 82a in the area of obligatory and optional referendum). In Schaffhausen and Neuchâtel, a relative voting period (Art. 77 para. 4 Electoral Act/SH; Art. 109 para. 4, 110 para. 5 LDP/NE) is supplemented by an absolute period if the initiative aims at a total revision of the cantonal constitution (Art. 79 Electoral Act/SH; Art. 108 para. 1 LDP/NE). As far as the Canton of Ticino is concerned, it establishes an absolute voting deadline of two years from the publication of the coming into being of the initiative (or of 60 days if the initiative aims at a total revision of the Constitution) and a relative deadline of 60 days from the conclusion of the deliberations (Art. 46, 90 FC/TI).
58 As with the treatment deadlines, it is up to cantonal law to determine whether voting deadlines are binding or regulatory deadlines. Some cantons expressly provide for their extension (Art. 117 para. 2 LEDP/FR; § 24a para. 1 and 4 IRG/BS; Art. 15 FC/GR; Art. 82 para. 2 FC/VD; Art. 33 para. 2 FC/VS) or even their standstill (§ 24a para. 3 IRG/BS) under certain conditions. Moreover, in the absence of an explicit qualification (which is often the case), doctrine points out that case law (in connection with processing deadlines) tends to hold that they are regulatory deadlines.
III. COMMENT
A. Time limit for putting an initiative to the vote (paragraph 1)
1. Subject matter ("to put an initiative to the popular vote")
59 Art. 75a para. 1 FADP grants the Federal Council a deadline of ten months from the Federal Assembly's final vote on the initiative or the expiry of the deadlines set for it to put a popular initiative to the vote.
60 The object of the time limit in Art. 75a para. 1 PRA is thus the holding of a vote, i.e. a "procedure in the course of which the [active] citizens who constitute the electorate (the people) decide on the acceptance or rejection of a proposal", in this case a popular initiative, in the form of a ballot.
61 The time limit refers exclusively to the phase of the initiative process after parliamentary consideration. In principle, the Federal Assembly orders the submission of a popular initiative to a vote in a federal decree, in which it declares the initiative valid and issues a recommendation on it (Art. 98, 100, 103 ParlG). An exception, however, is the situation in which the Councils have not passed a federal decree on the initiative within the set time limit (Arts. 100, 103, 106 ParlG). In this case, it is exceptionally up to the Federal Council to remedy this deficiency by ordering the principle of the vote itself (Art. 106 ParlG).
62 In both cases, it is then up to the Federal Council to work towards compliance with the voting deadline. As the executive authority (Art. 174 FC), it sets the date of the vote (Art. 10 para. 1bis PRA) and takes the preparatory steps (Art. 11 PRA) that enable the cantons to hold the vote on their respective territories (cf. Art. 10 para. 2 PRA). In principle, it defines the subjects that will be the subject of the next vote in the form of a decree and delegates to the Federal Chancellery to take all measures necessary for the vote.
63 The deadline is met if the vote actually takes place before its expiry. The mere fixing of the date of the vote is therefore not yet sufficient to meet it. If the vote takes place and is later declared invalid, this interrupts the deadline. The initiative must then be put to the vote again (subject to its withdrawal) and a new period of 10 months begins to run in accordance with Art. 75a para. 1 PRA.
64 According to the present commentary, all valid initiatives (Art. 139 para. 3 FC, Art. 75 LDP) that are not withdrawn (Art. 73–73a LDP) fall within the time limit of Art. 75a para. 1 LDP, including initiatives aiming at a total revision of the Federal Constitution (Art. 138 FC). Initiatives for a total revision of the Federal Constitution (Art. 138 para. 2 FC) as well as generally formulated initiatives (Art. 139 para. 4 second sentence FC) must be submitted to a vote of the people, while initiatives reformulated from scratch must be submitted to a vote of the people and the cantons (Art. 139 para. 5 first sentence FC).
65 Due to the obligation to put them to the vote at the same time as the initiatives to which they are opposed (Art. 139b FC, Art. 76 PRA), direct counter-proposals, i.e. alternative constitutional revisions to the initiative proposed by the Federal Assembly, indirectly fall within the voting time limit of Art. 75a PRA if the initiative is upheld despite its adoption, even if they are the subject of a federal decree separate from the initiative (cf. Art. 101 para. 2 ParlG). Art. 75a para. 1 PRA, on the other hand, does not set a deadline for the vote on the direct counter-proposal as such. If the initiative is withdrawn and only the direct counter-proposal remains, it is not subject to the voting period of 10 months. De lege ferenda, a voting deadline similar to that in Art. 75a para. 1 LDP would prevent a substantial delay from causing the counter-proposal to lose its raison d'être.
66 Indirect counter-proposals that also propose an alternative regulation to the initiative, but in the form of a sub-constitutional act that does not necessarily have a formal exclusionary relationship with the initiative, are also not subject to the time limit of Art. 75a para. 1 LDP. If a referendum is held against an indirect counter-proposal, neither the Constitution nor the law specify a time limit within which the vote must take place. If the initiative is upheld despite the indirect counter-proposal, the Federal Council is under pressure to put it to a vote quickly so that the vote on the initiative, which must take place within ten months (Art. 75a para. 1 PRA), takes place as soon as the fate of the counter-proposal has been decided. This pressure is lacking, on the other hand, if the initiative is withdrawn, either definitively or on condition that the indirect counter-proposal is definitively adopted (Art. 73a para. 2 PRA).
2. Starting point
a. Main starting point: Actual conclusion of parliamentary treatment ("final vote of the Federal Assembly")
67 In principle, the time limit of Art. 75a para. 1 PRA begins with the conclusion of the parliamentary phase of the handling of the initiative, i.e. with the final vote of the Federal Assembly on the federal resolution on the initiative (Art. 81 para. 1 let. c ParlG). This resolution decides on the validity of the initiative (Art. 1) and on the voting recommendation on it (if it is drafted from scratch) or on its acceptance or rejection (if it is drafted in general terms) (Art. 2).
68 The final vote on the federal decree on the initiative takes place in both chambers on the same day if the National Council and the Council of States have passed concurring resolutions on the initiative (Art. 81 para. 1bis ParlG), after they have each deliberated at first reading (Art. 74 ParlG) and, if necessary, settled their differences (Art. 89 ff. ParlG).
69 However, it may happen that the chambers are unable to pass concordant resolutions on the initiative. If one chamber rejects the conciliation proposal on the voting recommendation in the case of a drafted initiative, then according to Art. 98 para. 3 ParlG only Art. 2 of the federal decree concerning the voting recommendation is deleted. In this case, it seems to us that a final vote on the resolution (Art. 81 para. 1 let. c ParlG), which relates exclusively to the validity of the initiative (Art. 1), can take place.
70 Although this seems to us to be the result of an omission that can be corrected by analogous application rather than a deliberate decision, Art. 98 para. 3 ParlG does not refer to the acceptance or rejection of an initiative drafted in general terms (cpr "voting recommendation", "conciliation proposal"). The procedure for settling differences in this regard has a special feature: if a chamber decides a second time to reject the initiative, this second rejection is considered final (Art. 95 let. e ParlG). If one assumes in this context that the mechanism of Art. 98 para. 3 ParlG is not applicable, Nico Häusler points out that the text of Art. 81 ParlG excludes a final vote on the initiative, since it presupposes that both chambers have adopted the enactment to be put to a final vote (Art. 81 para. 1 let. c ParlG), moreover by passing concurrent resolutions on it (Art. 81 para. 1bis ParlG).
71 However, if one adheres to the wording of Art. 75a para. 1 PRA, then in the absence of a final vote, the time limit of Art. 75a para. 1 PRA would only begin to run with the expiry of the treatment periods set for the Federal Assembly (Art. 103, 105 ParlG). However, such a conclusion contradicts the (systematic and teleological) logic of the article, which states that a final decision by the Federal Assembly sets the voting period in motion. It is probably due to an omission, which can be explained by the fact that there is hardly any practice for dealing with initiatives drafted in general terms, rather than a qualified silence. According to the present Commentary, if the practice refrains from applying Art. 98 para. 3 PRA by analogy to the rejection of an initiative in general form and from holding a final vote on the validity of the initiative, the (second) rejection by a Council, which definitively seals the fate of the initiative (Art. 95 let. e PRA), must entail the commencement of the time limit of Art. 75a para. 1 PRA. Under these circumstances, it is not appropriate to wait for the expiry of the deadline for consideration by the Federal Assembly (Art. 103 para. 1, 105 ParlG).
72 Finally, despite the requirement that the final vote takes place after the chambers have adopted concurring resolutions, it is possible for the chambers to ultimately adopt divergent resolutions in the final vote, with one chamber adopting the federal resolution with a recommendation and the other chamber rejecting it (Art. 81 para. 3 ParlG). In this case, the chambers are deemed to have refrained from making a voting recommendation, which is contrary to their constitutional duty to express themselves (Art. 139 para. 4 and 5 FC). Nevertheless, in order to preserve the citizens' right to a quick decision on an initiative, this situation definitively ends the parliamentary phase and allows the voting period of Art. 75a PRA to begin, even if the deadlines for parliamentary consideration (Art. 100, 103, 105 ParlG) have not yet expired.
b. Subsidiary starting point: Fictitious end of parliamentary treatment ("expiry of the statutory time limits reserved for parliament to deal with the initiative")
73 The actual conclusion of the parliamentary treatment of the initiative only marks the beginning of the period for voting on the initiative if it takes place within the statutory deadlines for parliamentary treatment (Art. 100, 103, 105 ParlG). If the Federal Assembly fails to deal with the initiative within the set deadlines or to pass a concurring resolution on the initiative, the Federal Council is obliged to order the popular vote without waiting for its decision (Art. 106 ParlG).
74 In such a situation, Art. 75a para. 1 PRA equips the deadline for the vote on an initiative with a starting point subsidiary to the final vote of the Federal Assembly: the expiry of the statutory deadline for parliamentary consideration of the initiative. Instead of the actual end of parliamentary treatment, it is then the fictitious end that occurs through the forfeiture effect that marks the beginning of the 10-month period. This system limits and makes predictable the maximum total period (period for parliamentary consideration [Art. 100 or 103 para. 1 PRA], extended if necessary [Art. 105 PRA] + period for voting [Art. 75a para. 1 PRA], extended if necessary [Art. 75a para. 3bis PRA]) that can elapse between the submission of an initiative and the vote on it.
75 In the case of the initiative for the total revision of the Constitution, Art. 96 ParlG merely stipulates that the Federal Assembly shall submit the initiative to a vote of the people, without expressly setting a deadline for this. In our view, however, it would violate the guarantee of political rights (Art. 34 para. 1 FC) to infer from this that the Federal Assembly is not obliged to deal with the initiative within a reasonable period of time. As assumed by the majority of doctrine, the Federal Assembly should in any case not exceed a time limit of two years, which corresponds to the time limit for dealing with initiatives drafted in general terms (Art. 103 para. 1 ParlG). According to the present commentary, the expiry of such a time limit should consequently also mark the subsidiary start of the time limit of Art. 75a para. 1 PRA. Otherwise, a delay or an unjustified refusal by the Federal Assembly to deal with the initiative would result in the vote on the initiative being prevented indefinitely.
c. Additional starting point: Federal Council decision refusing or revoking confirmation of a vote (unwritten)
76 As already mentioned, it is conceivable that a vote on an initiative could be declared invalid, resulting in the start of a new voting period within the meaning of Art. 75a para. 1 PRA.
77 Art. 75a LDP does not regulate the question of when this new voting period begins. According to the present commentary, this is an actual gap, which is due to the fact that the legislator did not anticipate this question. In our view, in order to fill this gap, it is necessary to take into account the procedure followed after the annulment of the vote, which in turn depends on the reasons that led to this annulment.
78 Thus, if a new parliamentary procedure on the initiative takes place, the rules of Art. 75a para. 1 on dies a quo can be applied mutatis mutandis without further ado, since a new final vote would have to take place within a certain period.
79 If the parliamentary procedure is not continued, it must be decided whether the period begins to run anew from the court decision declaring the vote invalid or – after the substantive declaration of invalidity – from the Federal Council decision refusing or revoking the validity of the result (Art. 15 PRA). Even if this entails the risk that the Federal Council delays its action, the second solution seems more appropriate to us. After all, validation is the act that establishes the result of the vote in a binding and definitive manner. With its rejection or revocation, the procedure formally ends. Moreover, this starting point reflects Art. 75a para. 2 PRA, whose dies a quo is the date of validation of the result of the vote on the indirect counter-proposal and not the date of the vote.
3. Duration ("ten months")
80 The period for voting on an initiative under Art. 75a para. 1 LDP runs for a duration of ten months, calculated in quantiles. As a reminder, only the post-parliamentary steps for the material and intellectual organisation of the vote need to be taken during this phase.
81 Since the period begins to run from the final vote of the Federal Assembly, if this takes place within the statutory time limits of the ParlG, the Federal Council does not benefit from any remainder of the treatment period laid down in the ParlG in addition to the 10 months prescribed by Art. 75a para. 1 PRA.
82 In view of the calendar of available voting dates (4 per year outside the election year) (Art. 2a PRA) and the obligation to determine the objects of a vote at least 4 months in advance (Art. 10 para. 1bis PRA), the Federal Council has in principle concretely 2 freely selectable dates to put the initiative to the vote. In practice, the average period between the final vote of the Federal Assembly and the vote in the case of initiatives voted on since 2010 is around 6.3 months (excluding extended deadlines under Art. 75a para. 3bis PRA).
83 Within this period, the Federal Council is free to make use of the discretionary power granted to it by its status as the supreme executive authority of the Confederation (Art. 174 FC) to determine the date of the vote on an initiative. He does not have to take instructions from the Federal Assembly in this regard. However, it must safeguard the free formation and the faithful and certain expression of the will of the people (Art. 34 para. 2 FC), which means that it must perform its task taking into account the complexity, contradictory nature or even the propensity to enliven the debate of the various items to be put to the vote.
84 The duration of the time limit is extended by six months if it begins to run during a certain period before the overall renewal of the National Council (Art. 75 para. 3bis ParlG). According to the present commentary, it can be suspended very exceptionally.
B. Time limit for putting a conditionally withdrawn initiative to the vote if the indirect counter-proposal is rejected (paragraph 2)
1. Purpose ("to put the initiative [...] to the vote [if the indirect counter-proposal is rejected]")
85 Like the deadline in Art. 75a para. 1 LDP, the deadline in Art. 75a para. 2 LDP also has as its object that an initiative be put to the vote. Accordingly, reference can be made to the previous remarks on this term. However, Art. 75a para. 2 PRA refers to the special context in which the people reject an indirect counter-proposal even though the initiative committee had withdrawn the initiative on condition that this counter-proposal would not fail in the popular vote (Art. 73a para. 2 PRA). In such a case, the withdrawal of the initiative has no effect, since the condition to which it is attached has not occurred (Art. 73a para. 3 PRA e contrario). Finally, if the initiative committee does not decide to withdraw the initiative unconditionally (Art. 73 para. 1 PRA), the authorities are still obliged to put the initiative to the vote.
86 Under these circumstances, starting the period for voting on a conditionally withdrawn initiative from the final vote of the Federal Assembly, as provided for in Art. 75a para. 1 FC, would entail the risk that, given the referendum period of 100 days (Art. 141 para. 1 let. a FC) and the obligation to announce a vote at least four months in advance (Art. 10 para. 1bis FC), this period would expire before the fate of the indirect counter-proposal, and thus also of the initiative, was sealed. For this reason, Art. 75a para. 2 PRA stipulates that the period only begins to run on the date of confirmation of the result of the vote in which the indirect counter-proposal was rejected.
87 The text of Art. 75a para. 2 LDP aims to submit the initiative "to a vote of the people and the cantons". Now, however, only the initiative drafted from scratch is subject to the double majority requirement (Art. 139 para. 5 FC). However, Art. 75a para. 2 PRA seems to us to be applicable also to a generally formulated initiative (which is only submitted to a vote of the people). According to prevailing opinion, it is not excluded to oppose such an initiative with an indirect counter-proposal. Consequently, it should also be permissible to conditionally withdraw the initiative. Moreover, the wording of Art. 73a PRA does not exclude this. Moreover, the preparatory work on the introduction of the conditional withdrawal of the initiative shows no will on the part of the Federal Assembly to exclude this mechanism in the case of an initiative drafted in general terms. In this context, it seems to us that the restrictive wording of Art. 75a para. 2 PRA is merely the result of an omission due to the few occurrences of generally worded initiatives in practice and the rapid pace of legislative work.
88 In the case of the initiative for a total revision of the Federal Constitution, on the other hand, the previous majority doctrine precludes it from containing substantive proposals. In this context, the Federal Assembly cannot propose an alternative to such an initiative, even in indirect form, which precludes a conditional withdrawal of the initiative. The rule of Art. 75a para. 2 PRA is therefore irrelevant for this type of initiative.
89 Finally, it should be noted that neither Art. 75a para. 2 PRA nor the Constitution attaches a time limit to the vote on the indirect counter-proposal. According to the present commentary, the Federal Council must adhere no less to a reasonable deadline in order to preserve the initiative guarantee (Art. 34 para. 1 FC). After all, the longer the vote on the counter-proposal takes, the longer the vote that must take place on the initiative in the event that the counter-proposal is rejected, which can undermine the initiative. De lege ferenda, in our view, at least if the initiative has been conditionally withdrawn, a time limit for the vote on the indirect counter-proposal should be set that is identical to that in Art. 75a LDP (10 months).
2. Date of commencement
a. Ordinary starting point: executive confirmation of the rejection of the indirect counter-proposal ("date of confirmation of the result of the vote on the counter-proposal")
90 The voting period of Art. 75a para. 2 PRA begins with the validation of the result of the vote rejecting the indirect counter-proposal. This act constitutes a declaratory decision by the Federal Council. It only comes into effect after any complaints in connection with the vote, which must be submitted within three days (Art. 77 para. 2 PRA), have been settled (Art. 15 para. 1 PRA).
91 Having the period start from the decision on validity and not from the date of the vote itself is intended to prevent the rejection of the indirect counter-proposal from being declared invalid while the vote on the initiative is still being prepared or has even already taken place. Since the effect of the initiative depends on the failure of the indirect counter-proposal (Art. 73a para. 3 PRA), this mechanism is indispensable from the point of view of legal certainty and guaranteeing the free formation and faithful and certain expression of the will of the people (Art. 34 para. 2 FC). Indeed, citizens cannot be required to vote on an initiative where the effect of withdrawal has not been definitively clarified.
b. Extraordinary starting point: retroactive judicial confirmation of the rejection of the indirect (unwritten) counter-proposal
92 According to the present commentary, if the vote on the indirect counter-proposal is exceptionally subject to "retrospective" judicial review, i.e. after the results have been confirmed in accordance with Art. 15 FC, while the vote on the initiative has not yet taken place, the vote on the initiative must be suspended for as long as the fate of the vote on the indirect counter-proposal has not yet been decided, in order to protect the free formation of the will and the faithful and certain expression of the will of the people (Art. 34 para. 2 FC) as well as legal certainty. In this respect, Art. 75a para. 2 PRA has a loophole which the legislature was unable to observe and which the legal process developed by the Federal Supreme Court requires to be closed.
93 If the vote on the counter-proposal is indeed declared invalid, the duty of the authorities to put the initiative to the vote now depends (once again) on the fate of the counter-proposal, so that the time limit of Art. 75a para. 2 PRA is interrupted.
94 If, on the other hand, the invalidity petition is rejected, the question arises as to whether the Federal Council must again be granted a full period of 10 months to put the initiative to the vote, or whether the period that has already expired until the submission of the revision petition must be taken into account. In view of the obligation to give at least four months' notice of the subject of a ballot (Art. 10 para. 1bis PRA) and the time needed to organise the ballot, it seems more appropriate to us to assume a new full period of 10 months. In other words, the submission of a motion "for repetition" of the vote on the indirect counter-proposal interrupts the running of the deadline of Art. 75a para. 2 LDP, while the rejection of the motion marks the dies a quo of a new voting deadline.
95 By comparison, the vote on an initiative whose conditional withdrawal due to the failure of the indirect counter-proposal did not become effective as soon as it took place is a reason that should preclude a "retroactive" annulment of the vote on the indirect counter-proposal. In fact, the Federal Supreme Court ties the annulment of a vote in this context to several conditions, including the protection of legal certainty, which would be impaired as soon as the annulment of the vote on the counter-proposal would have to result in the annulment of the vote on the initiative.
c. Additional starting point: Federal Council decision refusing or revoking confirmation of a vote (unwritten)
96 Finally, like Art. 75a para. 1 PRA, in the event of a cancellation of the vote on the initiative (the withdrawal of which did not become legally valid due to the failure of the indirect counter-proposal), Art. 75a para. 2 PRA must be supplemented to the effect that, if the parliamentary procedure is not renewed, the Federal Council decision refusing or revoking the validity of the result (Art. 15 PRA) marks the starting point for a new ten-month period for the vote on the initiative.
3. Duration ("ten months")
97 The confirmation of the result of the vote on the indirect counter-proposal triggers a voting period of 10 months. Thus, the time that elapsed between the Federal Assembly's final vote on the initiative and the initiative's conditional withdrawal is not retroactively deducted from the voting period.
98 Since all indirect counter-proposals on the basis of which an initiative has been conditionally withdrawn have come into legal force, it is not possible in practice to state the average duration for holding a vote after the rejection of the indirect counter-proposal. However, since these cases also involve the conduct of a vote on a constitutional amendment, there is prima facie no reason why it should differ significantly from the average duration of the conduct of a vote on the initiative in an "ordinary" case.
C. Time limit for voting on the implementation of a general initiative (paragraph 3)
1. Subject matter ("[to put to the vote] the constitutional amendment [...] relating to [a generally held initiative]")
99 The time limit in Art. 75a para. 3 PRA also refers to the holding of a referendum, the modalities of which are the same as the referendums referred to in Art. 75a paras. 1 and 2, but the subject of which is the constitutional amendment following the adoption of an initiative conceived in general terms, and not the initiative itself.
100 Art. 75a para. 3 PRA is applicable exclusively to selective constitutional amendments that follow generally formulated initiatives. It therefore does not refer to a comprehensive constitutional amendment that follows on from an initiative adopted in this sense (Art. 138 cum 193 para. 1 FC), which must also be the subject of a vote by the people and the cantons (Art. 140 para. 1 let. a FC).
101 As a reminder, the initiative, which is of a general nature, indicates the direction of a desired constitutional amendment without definitively formulating the wording of this amendment. If the Federal Assembly approves the initiative, it directly drafts the corresponding constitutional amendment (Art. 139 para. 4 sentence 1 FC), which must "strictly reflect the content and objectives of the initiative" (Art. 104 para. 2 ParlG). If it rejects the initiative, it submits it to a vote of the people (art. 139 para. 4 sentence 2 cum. 140 para. 2 let. b FC). If the people vote in favour, the Federal Assembly is obliged to draw up the constitutional amendment demanded by the initiative (art. 139 para. 4 sentence 3 FC). Since this is a constitutional amendment, the implementation drawn up by the Federal Assembly is subject to a mandatory referendum and must be approved by the people and the cantons (Art. 140 para. 1 let. a FC).
102 The implementation of the initiative drafted in general terms within a reasonable period of time is protected by the guarantee of political rights (Art. 34 para. 1 FC). The time limit in Art. 75a para. 3 PRA refers to the post-parliamentary phase of this process. The Federal Assembly, for its part, has a period of two years from the approval of the initiative to draft the constitutional amendment (Art. 104 para. 1 PARlG). However, the law does not provide a mechanism to sanction a delay or a refusal by the Federal Assembly to legislate (cpr Art. 189 para. 4 FC).
103 In accordance with a constitutional requirement (Art. 156 para. 3 let. b FC), on the other hand, the law provides a mechanism to ensure that a decision on implementation is taken if only differences between the Councils prevent its adoption by the Federal Assembly. Art. 104 para. 3 ParlG reads: "If the Councils cannot agree on a joint draft for a partial revision, or if one or both of them reject the draft, the decisions taken by them in the last deliberation shall be submitted to a vote of the people and the cantons". This provision applies if the Houses have each adopted a draft resolution but one House rejects the proposal of the conciliation conference (cpr Art. 93 para. 2 ParlG) or one (or both) Houses reject the draft revision in the final vote on it (cpr Art. 1 para. 3 ParlG).
104 If one of these situations occurs, it is up to the people and the cantons to separate the bills adopted by one and the other chamber in their final detailed deliberations in the form of a vote on these two variants. Irrespective of the question of the precise subject matter and modalities of this vote, which goes beyond the subject matter of this commentary, we believe that the time limit of Art. 75a para. 3 PRA should also apply here, at least by analogy, if the vote is on a constitutional amendment that follows a general initiative.
2. Starting point ("final vote of the Federal Assembly")
a. Ordinary starting point: actual conclusion of parliamentary treatment ("final vote of the Federal Assembly")
105 The time limit for voting on a constitutional amendment that is based on an initiative drafted in general terms begins with the final vote of the Federal Assembly (Art. 81 ParlG) that approves the revision in question (Art. 75a para. 3 PRA). This dies a quo also applies if one of the two chambers rejects the draft resolution on the constitutional amendment in this final vote (Art. 104 para. 3 ParlG).
106 On the other hand, in the event that Art. 104 para. 3 ParlG is applied as a result of the rejection of the proposal of the Unification Conference by a Council, no final vote on the draft resolution on constitutional revision takes place. In this case, we believe it is appropriate to fill a gap in Art. 75a para. 3 PRA by stating that the two-year period runs from the vote leading to the rejection of the unification proposal.
107 Since there is no mechanism to force the Federal Assembly to adopt a constitutional amendment, and since the Federal Council has no competence of its own to adopt a constitutional amendment itself, the Federal Council cannot logically order a vote on a non-existent subject (cpr Art. 106 ParlG). For this reason, in contrast to para. 2, Art. 75a para. 3 PRA does not provide for a subsidiary dies a quo.
b. Additional starting point: Federal Council resolution refusing or revoking the confirmation of a voting result (unwritten)
108 Finally, like the votes on initiatives, the vote on the constitutional amendment implementing an initiative drafted in general terms is to be declared invalid only in very exceptional cases. In this case, we believe that it is the decision of the Federal Council to deny or revoke the validity of the result (Art. 15 PRA) that marks the beginning of a new voting period of 10 months.
3. Duration ("ten months")
109 As with the other deadlines of Art. 75a LDP, the Federal Council has a duration of ten months to organise and conduct the referendum. The time that the Federal Assembly may not have used within the two-year period to prepare the constitutional amendment does not extend the period available to the Federal Council.
110 In the absence of a corresponding practice, it is not possible to state the average length of time that passes in practice between the Federal Assembly's final vote and the popular vote. Again, however, there is no reason why it should differ significantly from the average length of time it takes to conduct the vote on the initiative in an "ordinary" case.
D. Extension of time limits (paragraph 3bis)
111 While the first three paragraphs of Art. 75a set voting deadlines, paragraph 3bis sets out the extension of these deadlines, in our opinion in an exhaustive manner. It makes them conditional on the dies a quo of the relevant deadline (defined by the appropriately interpreted paragraphs 1–3) falling within a specified period before the next overall renewal of the National Council, i.e. between 10 and 3 months before the election.
112 Although this provision was not commented on when it was adopted in 2014, it is understandable that its rationale is to take into account the fact that an election year includes not four but only three dates for referendums (Art. 2a para. 3 ODP), thus limiting the dates available to the Federal Council to put the initiative to a vote. It is also conceivable that the intention is to relieve the Federal Chancellery during this period. However, we do not know the criteria that led to the delimitation of the period that is decisive for the extension. Moreover, it should be noted that the need to have sufficient time and voting dates in the election year had already been taken into account when the "ordinary" voting period was originally set at 9 months.
113 The general renewal of the National Council refers to the election of all deputies forming this chamber every four years (Art. 149 para. 2 BVG), as opposed to a possible by-election (Art. 51 PRA) or supplementary election (Art. 56 PRA).
114 The National Council is also completely renewed before the end of the four-year legislative period if the people agree to the principle of a total revision of the Constitution (Art. 193 para. 3 FC). The law does not regulate the temporal modalities of this selective total renewal. Unlike periodic renewal, it is not predictable. It is therefore not covered by the rule that in principle four votes are held per year (Art. 2a paras. 1 and 3 ODP). If necessary, it should therefore take place on an additional voting date and not overlap with the other voting items. In our view, it is therefore not covered by Art. 75a para. 3bis PRA. This, moreover, already follows from the wording of the provision, which implies periodicity by referring to the "next" renewal, and from its logic, which consists in fixing the extension of the deadline in relation to a foreseeable date.
115 The periodic general renewal of the National Council takes place (every four years) on the penultimate Sunday in October (Art. 19 para. 1 LDP). The relevant period for renewal between 10 and 3 months before the renewal thus always runs from one day of December of the year preceding the election to one day of July of the election year. It therefore extends over seven months.
116 All terms that begin to run during this period are automatically renewed. A corresponding resolution of the Federal Council or the Federal Assembly is not required. The duration of the extension is 6 months, bringing the total period to 16 months.
117 De lege ferenda, it should be noted that this system of automatic extension by the same duration for all deadlines that begin to run between 10 and 3 months before the election does not achieve its presumed objective of giving the Federal Council as many choices as usual when setting the date for the vote on the initiative. Outside an election year, the Federal Council in principle has the choice between two voting dates to put the initiative to the vote. However, the mechanism of Art. 75a para. 3bis PRA does not preserve this balance:
If the voting period begins to run immediately before the standstill period (i.e. immediately before the December deadline), the Federal Council has only one voting date at its disposal. For example, if the Federal Assembly had held the final vote on an initiative on the last day of its 2022 winter session, i.e. on 16 December 2022, the deadline for voting on this initiative would not have been extended, as the relevant period for the extension would have started on 22 December 2022, given the overall renewal of the National Council on 22 October 2023. Consequently, the Federal Council would have had until 16 October 2023 to put the initiative to the vote. Due to the obligation to announce a vote at least four months in advance (Art. 10 para. 1bis PRA) and the calendar of voting dates, which concretises Art. 2a PRA, the vote on the initiative could only have taken place on one voting date, namely 18 June 2023.
If, on the other hand, the deadline begins to run during the standstill (i.e. until the deadline in July), there are no longer two, but three or even four dates available for the vote. For example, if the Federal Assembly adopts a decision on an initiative on 17 March 2023, the deadline for the vote on the initiative, taking into account the extension, runs until 17 July 2024, leaving the Federal Council with the following 3 dates to set the vote: 26. November 2023, 3 March 2024 and 9 June 2024. If the final vote is held on 16 June 2023, the deadline runs until 16 October 2024, giving the Federal Council the option of ordering the vote on 26 November 2023, 3 March 2024, 9 June 2024 or 22 September 2024.
118 In other words, the current system does not prevent the loss of a voting date in certain circumstances and offers one or even two additional voting dates in other circumstances. In light of this, it should be noted that for the four initiatives that have so far been affected by an extension of the deadline, the average time between the final vote and the vote was approximately 10.3 months. Thus, the current system has not led to abuses, at least so far.
E. Time limits for dealing with the initiative: Reference to the Parliament Act (paragraph 4)
119 Art. 75a PRA concludes with a reference to the ParlG when it comes to the handling of an initiative by the Federal Council and the Federal Assembly and the time limits in this regard. This division of the matter is a historical decision by the legislature. However, the deadlines for the parliamentary handling of an initiative are decisive for the application of Art. 75a para. 1 PRA, as their expiry constitutes the subsidiary start of the deadline for the vote on an initiative.
120 The handling of an initiative by the Federal Council and the Federal Assembly is the subject of an entire chapter (3) in a title (5) of the ParlG (Art. 96–106).
121 As already mentioned, the initiative for the total revision of the Constitution is not subject to any explicit time limits (Art. 96 ParlG). Nevertheless, it must be dealt with within a reasonable period, which in any case should not exceed two years, analogous to what is provided for generally formulated initiatives (Art. 103 para. 1 ParlG).
122 In the case of an initiative aimed at a partial revision of the Constitution, Art. 97 para. 1 let. a ParlG sets a deadline of one year from the submission of the initiative for the Federal Council to submit to the Federal Assembly a draft federal decree as well as a dispatch on it. The period is extended by six months if the Federal Council prepares a counter-draft or a draft decree that is closely related to the popular initiative (Art. 97 ParlG).
123 For its part, the Federal Assembly has a period of 30 months from the submission of a drafted initiative to decide whether to recommend its acceptance or rejection (art. 100 ParlG), or of 2 years from the submission of an initiative drafted in general terms to decide whether to accept or reject it (art. 103 para. 1 ParlG). By decision of the Federal Assembly, these time limits may be extended by one year if one of the Councils has "adopted a decision on a counter-proposal or a draft enactment that is closely related to the popular initiative" (Art. 105 para. 1 ParlG).
124 Overall, the following time limits may thus elapse between the submission of the initiative and the vote on it:
In the case of an initiative drafted from scratch:
If the Federal Assembly does not extend the treatment period on the basis of a counter-proposal: 40 months (30 months treatment period + 10 months voting period) or 46 months (40 months + 6 months extension) if the period begins to run between 10 and 3 months before the next general renewal of the National Council.
If the Federal Assembly extends the period of consideration on the basis of a counter-proposal: 52 months (30 months period of consideration + 1 year, i.e. 12 months, extension + 10 months voting period) or 58 months (52 months + 6 months extension) if the period begins to run between 10 and 3 months before the next general renewal of the National Council.
In the case of an initiative drafted in general terms:
If the Federal Assembly does not extend the treatment period due to a counter-proposal: 34 months (2 years, i.e. 24 months, treatment period + 10 months voting period) or 40 months (34 months + 6 months extension) if the period begins to run between 10 and 3 months before the next general renewal of the National Council.
If the Federal Assembly extends the treatment period on the basis of an (indirect) counter-proposal: 46 months (2 years or 24 months treatment period + 1 year or 12 months extension + 10 months voting period) or 52 months (46 months + 6 months extension) if the period begins to run between 10 and 3 months before the next overall renewal of the National Council.
125 Finally, as regards the implementation of an adopted initiative in general terms, the Federal Council also has a period of one year from adoption to submit a draft and a dispatch to the Federal Assembly (Art. 97 para. 1 let. b ParlG), with a period of two years from adoption for the Federal Assembly to draft the decree. As already mentioned, however, failure to comply with this deadline has no concrete consequences.
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