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- Art. 5a FC
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- Art. 43a FC
- Art. 55 FC
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- 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
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- 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
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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
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- Art. 31 para. 2 lit. e FADP
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- 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. Commentary in the strict sense
- Recommended further reading
- About the authors
- Materials
- Bibliography
I. History of origins
1 Art. 118 FC is referred to as the Health Article of the Federal Constitution and transferred Arts. 69, 69bis and 24quinquies para. 2a FC into the new constitutional text. With the exception of some editorial adjustments - specifically, humans and animals are no longer mentioned in paragraph 1, but in paragraph 2 lit. b of the provision - it corresponds in large parts to E-Art. 109 FC according to the Federal Council's draft of a revised Federal Constitution. Minority motions in the Constitutional Commission of the National Council to add a provision for the promotion of self-help and promotion of "primary" prevention as well as to create a competence to issue regulations on education and training "in the scientific medical professions" were narrowly rejected in the National Council.
II. Commentary in the strict sense
A. Measures to protect health (para. 1)
2 Art. 118 para. 1 FC formulates a very general, programmatic mandate to the Confederation to take measures to protect human and animal health. The addition of "within the scope of its competences" makes it clear that the programmatic mandate as such does not establish any new federal competences. Based on this concept, public health remains fundamentally within the competence of the cantons. However, the fact that Art. 118 para. 2 FC then lists various subject areas that in some respects do grant the Confederation a binding (fragmentary) legislative competence with subsequent derogatory effect with regard to the health protection of the population to be guaranteed, puts this into perspective. The "strategies" enacted by the Confederation in various areas test the state's order of competences insofar as the Confederation is to a certain extent engaged in comprehensive and not disease-specific health promotion - this includes not only the Federal Council's health policy strategy 2020-2030, but also the numerous topic-oriented national health strategies (e.g. in the areas of dementia, eHealth, cancer, non-communicable diseases, palliative care, etc.).
3 The concept of health is central to the understanding of Art. 118 para. 1 FC. Nevertheless, one searches in vain not only in the provision itself, but also in the materials for a definition of this "highly indeterminate term in need of concretisation". In the materials on other provisions of the Federal Constitution, such as Art. 41 para. 1 lit. b FC, as well as in the rest of federal law, a definitional circumscription of the concept of health has also been omitted. This is probably also due to the fact that a concise and universal definition is hardly achievable due to its frame of reference, which depends on the respective context. In contrast, the numerous attempts at definition by the doctrine are almost impossible to keep track of, with part of the doctrine arguing in principle that the concept of health should be circumscribed on the basis of the respective applicable views of contemporary history, while other doctrines argue that it should be concretised on the basis of its purpose in the context of the respective regulatory environment.
4 With regard to international law, it makes sense to understand the concept of health broadly, as does the WHO in the Alma-Ata Declaration of 1978 or in the definitions of the Ottawa Charter for Health Promotion of 1986. In point I of the Alma-Ata Declaration, health is described as a "state of complete physical, mental and social well-being" and is explicitly not understood as a mere state of being "free from disease or infirmity". Irrespective of whether health can ever be correctly and conclusively described conceptually and as a concept, a broad understanding of the term is likely to correspond to a consensus that the concept of health is changeable and must not be reduced to "absence of disease".
5 The object of Art. 118 para. 1 FC is primarily police measures to avert danger, which are generally intended to prevent direct health impairments - it is therefore a matter of concrete and direct dangers to public health and thus to the health of humans and animals in general. Indirect adverse effects, such as those caused by air, noise, water or other environmental influences, are not covered, but are the subject of the so-called environmental protection article (Art. 74 FC). As far as the more specific protection of animals is concerned, Article 80 FC is also relevant. Finally, measures aimed at the individual's state of health and health promotion do not fall within the scope of this provision. Accordingly, there is no constitutional basis for comprehensive and disease-unspecific health promotion in the sense of "promotion of self-help" and promotion for "primary prevention", inter alia because the Constitutional Commission of the National Council and subsequently also the National Council itself rejected a corresponding version of Art. 118 para. 1 FC (but cf. N 2 in fine). It is obvious that this contrasts with the generally postulated broad concept of health. However, aspects of disease-unspecific health promotion underlie various agreed international guarantees and (social) human rights - in particular the "right to health" according to Art. 12 UN Covenant I . However, such norms do not give rise to any individual rights, for example to disease-unspecific health promotion, but the corresponding guarantees are to be seen as a programmatic requirement for the health care of the signatory states, which in turn can serve as a justification for the Confederation to consider comprehensive and disease-unspecific health promotion where national thrusts are needed (cf. in this regard the above-mentioned theme-oriented national health strategies).
B. Legislative mandates (para. 2)
1. Comprehensive legislative competence with subsequent derogatory effect
6 In para. 2 of Art. 118 FC, the Confederation is granted the authority and obligation to enact regulations in the exhaustively named health-related sub-areas according to lit. a to c. This is a retroactive derogatory effect. The federal competence is a subsequent and comprehensive competence with derogatory effect.
2. Handling of foodstuffs, medicinal products, narcotics, organisms, chemicals and objects hazardous to health (lit. a)
7 According to Art. 118 para. 2 lit. a FC, the Confederation must issue regulations on the handling of foodstuffs, commodities and consumer goods that are hazardous to health. This provision corresponds to Art. 69bis a FC. Although the regulatory competence is in principle an exhaustive one, it is not possible to enact an exhaustive list of specific goods and objects of a hazardous nature within these categories, with regard to which the Confederation has legislative competence in the sense described above. Instead, it is to be assumed that the Confederation must take regulatory action as soon as an object can be assigned to one of the categories mentioned in Art. 118 para. 1 lit. a FC and appears to be potentially hazardous to health. Consumers and not specialists are to be protected here. POLEDNA rightly points out that Art. 118 para. 1 lit. a FC ultimately also has the character of a consumer protection provision.
8 The wording "dealing with" chosen by the constitutional legislator indicates that not only the primary acts - such as the consumption or use in the case of food, medicinal products or narcotics - are covered by the provision. Rather, according to the materials, it is to be assumed that the most diverse processes and actions are covered by the definition, i.e. in particular production, processing, trade (import, storage, distribution, purchase) and use. However, production for personal use is not to be included in the scope of application.
9 In the area of foodstuffs, the Confederation has exercised its competence by enacting the Federal Act on Foodstuffs and Utility Articles (LMG; SR 817.0). Based on this, numerous departmental and some Federal Council ordinances were issued, such as the Ordinance on Foodstuffs and Utility Articles (LGV; SR 817.02) or the Tobacco Ordinance (TabV; SR 817.06). Art. 4 para. 1 LMG then also contains a general definition of food as "any substance or product intended to be, or reasonably foreseeable to be ingested by humans in a processed, partially processed or unprocessed state". This definition is supplemented in Art. 4 para. 2 LMG by a positive list and in Art. 4 para. 3 LMG by a negative list. The federal legislature has dispensed with a general abstract definition of consumer goods and instead defined in Art. 5 LMG eight product categories into which an object may fall in order to be considered a consumer good within the meaning of the LMG.
10 The Confederation has fulfilled its obligation and competence to regulate the handling of medicinal products and narcotics by enacting the Federal Act on Medicinal Products and Medical Devices (HMG, Therapeutic Products Act; SR 812.21). This also applies to narcotics if they are used as therapeutic products (Art. 2 para. 2 lit. b HMG). The federal government also regulates the handling of narcotics in the Federal Act on Narcotics and Psychotropic Substances (BetmG; SR 812.121). According to Art. 2 lit. a BetmG, narcotics are dependence-producing substances and preparations of the effect types morphine, cocaine or cannabis, as well as substances and preparations that are manufactured on their basis or have a similar effect to these. In the case of cannabis, a slowly progressing liberalisation can be observed. For example, the use of cannabis for medicinal purposes was legalised as of 1 August 2022, and Art. 8a BetmG has permitted pilot trials with controlled distribution of this substance for "pleasure purposes" since 15 May 2021.
11 The terms "organisms" and "chemicals" have in common that they have to be interpreted narrowly, since in the final analysis animals and humans are also organisms and their "components" are chemicals and the competence would be all-encompassing with a broad understanding of the term. It must therefore be assumed that the provision only covers chemical substances and their preparations as such ("chemicals") and microorganisms ("organisms"). Provisions on the handling of microorganisms can be found in various federal laws, such as the Environmental Protection Act (USG; SR 814.01) and the Federal Act on Genetic Engineering in Non-Human Areas (GTG; SR 814.91). Moreover, the term "organisms" is defined in Art. 7 para. 5bis USG and Art. 5 para. 1 GTG: "Organisms are cellular and non-cellular biological entities capable of reproduction or of passing on genetic material. Mixtures and objects containing such units are treated as such".
12 "Articles which may endanger health" is essentially a catch-all offence. In addition to the above-mentioned LMG, which also contains a list of articles for use (cf. Art. 5 LMG), reference should be made in this regard above all to the Product Safety Act (PrsG; SR 930.11) and the Explosives Act (SprstG; SR 941.41). Objects which, due to their nature, are suitable for threatening or injuring people are also subject to the Weapons Act (WG; SR 514.54). Art. 4 para. 6 of the Weapons Act mentions objects such as "tools, household and sports equipment" and excludes pocket knives, "such as the Swiss army pocket knife".
3. Combating disease (lit. b)
13 Art. 118 para. 2 lit. b FC obliges the Confederation to enact regulations on the control of communicable, widespread or malignant diseases of humans and animals. The provision corresponds to Art. 69 aBV. In the past, the Confederation was entitled to intervene when the spread of a disease impaired the work performance of broad sections of the population and thus indirectly also the economy.
14 According to Art. 118 para. 2 lit. b FC, for a federal competence to be established, a disease must meet the following alternative ("one of the three characteristics") requirements. In many cases, however, a disease is likely to fulfil all of the above criteria. It must be malignant, which is the case if it threatens life or causes severe and permanent impairment of health. In addition to the individual effects, the impact and social as well as economic damage of a disease on society must also be taken into account. Another alternative prerequisite is the widespread spread of a disease. This is the case if the disease is not purely local but has become so widespread that measures at the national level appear to be indicated. As a third alternative criterion, Art. 118 para. 2 lit. b FC mentions the transmissibility of a disease. This is given if the disease is caused by a pathogen that can be passed on, which means that the disease is directly or indirectly contagious.
15 The enactment of regulations that serve to "combat" corresponding diseases of humans and animals does not only mean the spectrum of health police instruments such as prohibitions, behavioural and licensing obligations. Targeted measures of a preventive nature to ward off diseases are also possible, as long as the focus is not purely general prevention.
16 Based on Art. 118 para. 2 lit. b FC, the Confederation has enacted, among other things, the Federal Act on the Control of Communicable Human Diseases (Epidemics Act, EpG; SR 818.101). This defines, for example, what is to be regarded as a "communicable disease" ("disease that is transmissible to humans by pathogens or their toxic products"). ). In this context, the Federal Act on the Legal Basis for Federal Council Ordinances on the Management of the Covid 19 Epidemic (Covid 19 Act; SR 181.102) should also be mentioned. This was enacted by the Confederation in the wake of the Covid 19 epidemic and regulates special powers of the Federal Council to combat the Covid 19 epidemic and to manage the effects of the control measures on society, the economy and the authorities (Art. 1 para. 1 Covid 19 Act). Furthermore, the Federal Law on the Registration of Cancer Diseases (KRG; SR 818.33) as well as the Federal Law on Protection against Hazards from Non-Ionising Radiation and Sound (NISSG; SR 814.71) and the Law on Epizootic Diseases (TSG; SR 916.40) were enacted on the basis of Art. 118 para. 2 lit. b FC, among others. It is also worth mentioning that the enactment of federal measures to protect against passive smoking, i.e. the Federal Act on Protection against Passive Smoking (SR 818.31), which was enacted in 2008, and the Federal Act on Tobacco Products, which has been planned for some time, are also based on this constitutional foundation. It is questionable whether further (prevention) measures - such as suicide prevention - can also be based on this federal competence.
17 With the adoption of the popular initiative "Yes to the protection of children and adolescents from tobacco advertising (children and adolescents without tobacco advertising)" on 13 February 2022, the Confederation has also been given the mandate to ban any kind of advertising for tobacco products that reaches children and adolescents. This means that not only tobacco advertising explicitly aimed at children and adolescents will be banned, but also advertising that can be perceived by them or is accessible to them. This means that print media, the internet, posters, cinemas and points of sale as well as events are affected. It thus goes far beyond the indirect counter-proposal that the Federal Council and Parliament had opposed to the initiative. The revised Tobacco Products Act in the version of the indirect counter-proposal will enter into force as soon as the referendum deadline expires on 20 January 2022, but will have to be revised again immediately due to the acceptance of the popular initiative. According to No. 14 of the transitional provisions following the adoption of the Federal Constitution of 18 April 1999, this revision must be completed within three years of the adoption of the popular initiative.
4. Protection against ionising radiation (lit. c)
18 Art. 118 para. 2 lit. c FC establishes a legislative mandate concerning protection against ionising radiation, whereas non-ionising radiation is covered by the article on environmental protection in Art. 74 FC. Art. 118 para. 2 lit. c FC corresponds to Art. 24quinquies para. 2 aBV. The police regulations to be issued in this regard are primarily found in the Radiation Protection Act (StSG; SR 814.50). They are largely of a preventive nature; economic policy interventions cannot be based on the constitutional foundation.
Recommended further reading
Burch Stephanie, Staatliche Gesundheitsförderung und Prävention, Diss. Zürich, Basel 2014.
Eichenberger Thomas/Jaisli Urs/Richli, Paul (Hrsg.), Basler Kommentar, Heilmittelgesetz, 2. Aufl., Basel 2022.
Fingerhuth Thomas/Schlegel Stephan/Jucker Oliver (Hrsg.), Kommentar zum Betäubungsmittelgesetz, 3. Aufl., Zürich 2016.
Gutzwiller Felix/Jeanneret Olivier (Hrsg.), Sozial- und Präventivmedizin Public Health, 2. Aufl., Bern 1999.
Hug-Beeli Gustav, Kommentar zum Betäubungsmittelgesetz (BetmG), Basel 2015.
Landolt Hardy, Öffentliches Gesundheitsrecht, Public Health Law, Zürich/St. Gallen 2009.
Müller Markus, Zwangsmassnahmen als Instrument der Krankheitsbekämpfung, Basel 1992.
Poledna Tomas/Berger Brigitte, Öffentliches Gesundheitsrecht, Bern 2002.
Poledna Tomas/Kieser Ueli (Hrsg.), Gesundheitsrecht, in: Band VIII – Schweizerisches Bundesverwaltungsrecht (SBVR) von Koller Heinrich/Müller Georg/Rhinow René/Zimmerli Ulrich (Hrsg.), Basel 2005.
Poledna Tomas/Arter Oliver/Gattiker Monika (Hrsg.), Lebensmittelrecht, Bern 2006.
Schwendener Myriam, Krankheit und Recht, Diss. Zürich, Basel 2008.
Streuli Christoph, Leitfaden zum Chemikalienrecht, 2. Aufl., Bern 2013.
Weber Rolf H., Lebensmittelrecht EU-Schweiz, 2. Aufl., Zürich 2012.
Wolf Salome /Mona Martino/Hürzeler Marc (Hrsg.), Prävention im Recht, Basel 2008.
About the authors
Attorney-at-law Prof. Dr. iur. Ralph Trümpler studied at the Universities of Freiburg i.Ü., Zurich and Lucerne. After completing his doctoral thesis in the field of constitutional law, he worked as a clerk at various administrative courts and specialized in public law as an attorney. Since 2018 he has been a lecturer, and since 2023 a professor of administrative law at Kalaidos Law School. At Rudin Cantieni Attorneys at Law AG, he handles mandates in the area of constitutional and administrative law as well as public commercial law.
Gregori Werder, attorney-at-law, advises and litigates in all areas of public law at the law firm Werder Viganò AG, with a focus on public health law, health insurance law and personnel law. In addition, he regularly gives training courses on public law topics and carries out various teaching assignments.
The authors welcome suggestions and comments by e-mail at truempler@rudincantieni.ch and/or g.werder@wvlaw.ch.
Materials
Amtl. Bull. NR, Separatdruck Verfassungsreform (abrufbar unter: https://www.parlament.ch/centers/documents/de/bundesverfassung-reform-amtliches-bulletin-nr-d.pdf besucht am 7. März 2022).
Botschaft über eine neue Bundesverfassung vom 20. November 1996, BBl 1997 I, S. 1 ff.
Botschaft zum Bundesgesetz über Prävention und Gesundheitsförderung (Präventionsgesetz, PrävG) vom 30. September 2009, BBl 2009 S. 7071 ff.
Botschaft zum Bundesgesetz über Tabakprodukte (TabPG), BBl 2015 S. 9379 ff. (bezüglich den ersten Entwurf des Gesetzes) und BBl 2019 919 ff. (bezüglich den zweiten Entwurf des Gesetzes).
Entwurf des Bundesgesetzes über Tabakprodukte (TabPG), BBl 2015 S. 9471 ff. (bezüglich den ersten Entwurf des Gesetzes) und BBl 2019 999 ff. (bezüglich den zweiten Entwurf des Gesetzes); ferner BBl 2021 2327 ff. (Ablauf der Referendumsfrist).
Botschaft zur Volksinitiative «Ja zum Schutz der Kinder und Jugendlichen vor Tabakwerbung (Kinder und Jugendliche ohne Tabakwerbung)», BBl 2020 7049 ff.
Bibliography
Biaggini Giovanni, Kommentar zur Bundesverfassung der Schweizerischen Eidgenossenschaft, 2. Aufl., Zürich 2017.
Bognuda Cristina, Die Verletzung des Rechts auf Gesundheit, Zürich 2011.
Ehrenzeller Bernhard/Mastronardi Philippe/Schweizer Rainer J./Vallender Klaus A., Die schweizerische Bundesverfassung, Kommentar, Zürich 2002 (zit. St. Galler Kommentar BV).
Gächter Thomas/Rütsche Bernhard, Gesundheitsrecht – Ein Grundriss für Studium und Praxis, 4. Aufl., Basel 2018.
Gächter Thomas/Renold-Burch Stephanie, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.), Basler Kommentar, Bundesverfassung, Basel 2015.
Kahil-Wolff Hummer Bettina/Manon Joseph, in: Martenet Vincent/Dubey Jacques, Constitution fédérale, Art. 81 Cst. – dispositions finales, Basel 2021.
Mahon Pascal, in: Aubert Jean-François/Mahon Pascal, Petit commentaire de la Constitution fédérale de la Confédération suisse di 18 avril 1999, Zürich/Basel/Genf 2003.