-
- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. History of origins
- II. Significance of the provision
- III. Commentary on the text of the norm
- Materials
- Bibliography
I. History of origins
1 Parties appeared late in Switzerland; they did not exist in the Federal Assembly of 1848. The cantonal liberal movements of the 1830s in particular resisted being called a "party", as the term was discredited. The Freisinnige Volkspartei was not founded until 1873 and the first parliamentary group in the Federal Assembly, the "Radical Democratic Group of the Federal Assembly", was not constituted until 1878. The need for parties also only arose with the declining influence of the liberal elite in the early federal state towards the end of the 1870s. Politics now depended on the participation of the people, but the majority of the people were not interested in politics or did not have the education and leisure to take an interest in politics. The political parties jumped into this gap and now supported the political decision-making of the electorate. From then on, the importance of the parties increased in parallel with the importance of the people's rights, although it was precisely the people's rights that led to the political parties in Switzerland exerting less influence on state decisions than in other countries.
2 Accordingly, political parties were not an issue for constitutional law doctrine for a long time either, as legislation and constitutional law ignored them. "Constitutional law, however, with its duties and its powers, knows nothing of parties" wrote Johann Caspar Bluntschli in 1869, meaning that the norms of constitutional law should not distinguish between parties and that the institutions and offices of the state should not be exercised according to party criteria.
3 The Federal Constitution has only mentioned parties since the total revision in 1999. Since then, art. 137 stipulates that political parties participate in the formation of the opinion and will of the people. Although formal constitutional law did not mention the parties before, it was of course undisputed at the end of the 20th century that political parties today have a central function in state politics. It may be related to a still widespread scepticism towards an increased party statehood that art. 137 FC merely states what has long been valid anyway. The normative content of the constitutional provision is also rather low. The doctrine considers it inadmissible to give political parties legal or financial advantages on the basis of art. 137 FC that go beyond the provisions of organisational law. In particular, art. 137 FC cannot be the basis for direct party financing, although Hangartner, for example, feared that art. 137 would one day be used as a basis for financial aid to the parties.
4 Despite the unclear scope of art. 137 FC, the Federal Council used this provision to establish – together with art. 39 para. 1 FC – the party register provided for in art. 76a PRA, which at the same time was to form a new title in the PRA. The Federal Council was also aware of the scepticism towards a stronger party statehood, claiming in its dispatch that it only wanted to regulate the party system in a "moderate manner". The party register was nothing more than the logical continuation of the decision of the constitutional legislator to anchor the parties in the FC. At the same time, however, the Federal Council did not conceal the fact that a party register was the prerequisite for any further type of party regulation, whereby art. 76 PRA could form the basis for further regulations of political parties. However, the federal government now essentially bases its regulations on the transparency of political funding on art. 39 para. 1 FC.
II. Significance of the provision
A. General
5 The practical significance of the provision has so far been limited, since the only relief that registration brings is that the party is exempt from the quorums under art. 24 para. 1 PRA under certain circumstances. The provisions on party financing are not linked to the party register, but to the concept of "political party represented in the Federal Assembly" (art. 76b para. 1 PRA).
6 The significance lies rather in the fact that a party register, if one is to follow the argumentation of the Federal Council, is the logical next step that must follow the mention of the parties in art. 137 FC (cf. already above n. 4). The Federal Supreme Court also followed this assessment and, with reference to art. 137 and 147 FC, held that the federal legislature could also attach consequences to the registration of parties under art. 76a PRA, which would not have to be limited to elections, such as the facilitation under art. 24 para. 3 and 4 PRA. The register formed the basis for a party regulation "in general".
7 In terms of legal policy, art. 76a PRA can thus form an administrative starting point for the whole issue of increased party statehood. However, art. 137 FC offers no basis for this. The doctrine also sometimes discusses whether art. 137 FC could form the constitutional basis for transparency regulations on party financing (cf. already above n. 4).
8 Registered parties enjoy a further preferential treatment under tax law, because according to art. 33 para. 1 lit. i no. 1 DBG and art. 9 para. 2 lit. l no. 1 StHG, membership contributions and donations to parties that are registered in the federal party register may be deducted from income. However, the same also applies to parties that are represented in a cantonal parliament or have obtained at least three per cent of the votes in cantonal parliamentary elections.
B. Legal comparison
9 For a long time, the cantons had no counterparts to the register of political parties under art. 76a PRA. The federal party register only refers to the exercise of political rights at federal level, although art. 76a para. 1 lit. b somewhat inconsistently also refers to their representation in the cantonal parliaments for the registration possibilities of parties.
10 The canton of Fribourg has had a cantonal party register since 2009, whereby the modalities are largely modelled on the PRA. The register goes back to a motion that called for such a register in order to relieve the parties of having to collect a number of signatures from voters for their electoral lists. Similarly, the canton of Vaud introduced such a party register in 2021 with the same justification as the canton of Fribourg, which is also based on art. 76a PRA for the modalities.
III. Commentary on the text of the norm
A. Requirements for official registration (para. 1)
1. Definition of political party
11 Official registration is open to political parties. In accordance with the fact that political parties were not mentioned in the Constitution until the total revision of the FC in 1999, the term political party was also not legally defined before (cf. already above n. 3). Strangely enough, however, the PRA does not define the important concept of political party, but to a certain extent already presupposes it in art. 76a PRA. Only the Federal Assembly Ordinance defines the political party as an "association which, on the basis of its statutes, primarily pursues political purposes". Thus, from the outset, only associations come into question as political parties within the meaning of art. 76a PRA, which is why the definition is rightly criticised as circular.
12 The question of whether an association primarily pursues political purposes must be based on the purpose of the association as defined in its statutes. The political purpose must not form a mere secondary purpose of the association, whereby the distinction between main purpose and secondary purpose is used in civil law primarily with regard to the economic secondary purpose and thus cannot be adopted without further ado for the political main purpose.
2. Legal form of the association
13 On the one hand, the constitution as an association is a conceptual feature of political parties, as defined by art. 2 of the Regulation on the Register of Political Parties. On the other hand, the legal form of an association within the meaning of art. 60–79 of the Civil Code is a prerequisite for official registration under art. 76a para. 1 lit. a of the PRA. Since political parties in Switzerland have always chosen the form of association, this restriction of the corporate form may have been undisputed. Nevertheless, the legislator thereby excludes any other form of company and associations of persons, which constitutes a restriction of freedom of association. Particularly in the case of the simple partnership, it is sometimes argued in the doctrine that such a partnership should not be excluded per se. The relevant criterion here seems to be the question of permanence, which the Federal Council also emphasised several times in its dispatch on the revision of the PRA.
3. Minimum number of political mandates
14 Another precondition for registration is a minimum number of political mandates, which is supposed to guarantee both the permanence and the seriousness of an association or a political party. The message speaks somewhat paternalistically of "trial balloons" and "mayflies" who are to be denied the benefit of registration. However, art. 2 of the Political Parties Register Ordinance can only claim significance for the registration of a party and not for its existence. Nevertheless, in tax law norms, the federal government and the cantons already link the entry in the party register to the question of whether donations to parties are tax deductible. At least at the federal level, however, the entry in the register of political parties is only one of several alternative criteria. The party register nevertheless provides for a certain gradation between more relevant parties, which enjoy certain administrative and tax advantages, and the other parties.
15 A political party can register if it is represented either by one member in the National Council or by three members each in three different cantonal parliaments. This regulation favours parties that have a certain importance at the federal level. In the opinion of the Federal Supreme Court, the member of the National Council must already have been elected as a representative of the party in question.
B. Documents and information (para. 2)
16 The Federal Chancellery (Political Rights Section) is responsible for registration; it maintains the register of parties. The PRA mentions as documents and information to be submitted by the association a copy of the legally valid statutes, the statutory name and registered office of the party, and the names and addresses of the presiding and managing persons of the federal party. For the purpose of registration, the Federal Chancellery has drawn up a form based on art. 3 of the Ordinance on the Register of Political Parties, which is available free of charge in both electronic and paper form.
C. Register and Parliamentary Ordinance (para. 3)
17 The Federal Chancellery maintains the register of parties, which is public and can be viewed both on the internet and on site; 14 parties are currently listed in it. The information on the internet is currently provided with the notice that the information will only be updated at the request of the parties. However, since art. 4 of the Regulation on the Register of Political Parties subjects the parties to an immediate reporting obligation with regard to changes in the obligatory information, this is not a request by the parties. This reporting obligation is backed up by the legal consequence that parties lose their relief under art. 24 paras. 3 and 4 PRA if they have not complied with the reporting obligation by 1 May of the election year.
18 The order of the Federal Chancellery refusing entry in the register of parties is directly contestable before the Federal Supreme Court.
19 With art. 76a para. 3 PRA, the legislature mandates the Federal Assembly to regulate the details of the register in a parliamentary ordinance. The Federal Council justified this by referring to art. 163 para. 1 and art. 164 para. 2 FC. Art. 164 para. 2 FC concerns the delegation of legislative powers, which means that the Federal Assembly assumed that the Register of Political Parties Ordinance should not only contain enforcement provisions. Art. 164 para. 2 FC also concerns the case where the Federal Assembly, as legislator, delegates to itself the competence to regulate a matter by means of a legislative delegation. The Federal Assembly has complied with this mandate by enacting the Ordinance on the Register of Political Parties.
The author would like to thank Beat Kuoni for his review of the text and valuable comments.
Materials
Botschaft über eine Änderung des Bundesgesetzes über die politischen Rechte vom 30. November 2001, BBl 2001 6401 (Botschaft BPR 2001).
Bibliography
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Bluntschli Johann Caspar, Charakter und Geist der politischen Parteien, Nördlingen 1869.
Feller Richard, Die Entstehung der politischen Parteien in der Schweiz, Schweizerische Zeitschrift für Geschichte 8 (1958), S. 433–449.
Glaser Andreas, §2 Der moderne Verfassungsstaat, IV. Verhältnis Staat-Gesellschaft, in: Giovanni Biaggini/Thomas Gächter/Regina Kiener (Hrsg.), Staatsrecht, 3. Aufl., Zürich et al. 2021.
Gruner Erich, Die Parteien in der Schweiz, 2. Aufl., Bern 1977 (zit. Gruner, Parteien).
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Hangartner Yvo, Bemerkungen zu Bundesgericht, I. öffentlichrechtliche Abteilung, 6.6.2003, Verein "Freies Forum Schweiz" c. Schweizerische Bundeskanzlei (1.A.91/2003), Verwaltungsgerichtsbeschwerde, BGE 129 II 305, AJP 2003, S. 1225–1227.
Lachenal François, Le parti politique, sa fonction de droit public (en particulier dans le droit public suisse), Basel 1944.
Rhinow René A., Parteienstaatlichkeit – Krisensymptome des demokratischen Verfassungsstaats?, VVDStRL 44, S. 84–109.
Riemer Hans Michael, Berner Kommentar, Die Vereine, Systematischer Teil und Kommentar zu Art. 60–79 ZGB, 3. Aufl., Bern 1990.
Schiess Rütimann Patricia M., Art. 137 BV, die politische Gleichheit und das Parteienregister, ZBl 107 (2006), S. 505–528 (zit. Schiess Rütimann, Gleichheit).
Schiess Rütimann Patricia M., Politische Parteien: Privatrechtliche Vereinigungen zwischen öffentlichem Recht und Privatrecht, Bern 2011 (zit. Schiess Rütimann, Parteien).
Schiess Rütimann Patricia M., Kommentierung zu Art. 137 BV, in: Ehrenzeller Bernhard/Mastronardi Philippe/Schweizer Rainer J./Vallender Klaus A. (Hrsg.), St. Galler Kommentar, Die schweizerische Bundesverfassung, 3. Aufl., Zürich 2014 (zit. SGK-Schiess Rütimann).
Tschannen Pierre, Kommentierung zu Art. 137 BV, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.) Basler Kommentar, Bundesverfassung, Basel 2015 (zit. BSK-Tschannen).
Wyttenbach Judith/Wyss Karl-Marc, Kommentierung zu Art. 164 BV, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.) Basler Kommentar, Bundesverfassung, Basel 2015 (zit. BSK-Wyttenbach/Wyss).