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FEDERAL CONSTITUTION
MEDICAL DEVICES ORDINANCE
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
CRIMINAL CODE
CYBERCRIME CONVENTION
COMMERCIAL REGISTER ORDINANCE
FEDERAL ACT ON COMBATING MONEY LAUNDERING AND TERRORIST FINANCING
FREEDOM OF INFORMATION ACT
FEDERAL ACT ON THE INTERNATIONAL TRANSFER OF CULTURAL PROPERTY
- I. Introduction
- II. Legal reservation (para. 1)
- III. Legislative delegation (para. 2)
- IV. Justiciability
- V. Conclusion
- Recommended further reading
- Bibliography
- Materials
I. Introduction
A. Background
1 Article 164 of the Constitution defines when a rule of law must take the form of a law and when it may, on the contrary, take the form of an ordinance. In this respect, it had no equivalent in the former Constitution. Nevertheless, this provision codifies the case law of the Federal Supreme Court (FSC) on legislative delegation developed during the 20th century; in addition, it is based on provisions that have been part of many cantonal constitutions since the 1980s. Nevertheless, the adoption of Article 164 of the Constitution was turbulent. Its final version is the result of a process marked by various compromises and alterations. This is why the current wording of Article 164 of the Constitution is somewhat unfortunate. Its history partly explains the controversies surrounding its interpretation.
2 The Expert Commission appointed by the Political Institutions Committees of both Councils was the first to suggest enshrining in the Constitution a provision reserving the power to adopt important legal rules to the legislature. This provision stipulated that “the Federal Assembly shall enact important legal rules, which must take the form of a federal law.” The Expert Commission also proposed defining the concept of importance by means of a list of criteria, which it wished to codify in a law. It also dispensed with the concept of legislative delegation. The latter was considered superfluous because the separation of powers was strictly defined: the adoption of important rules was the responsibility of the legislature, while all other rules of law were the responsibility of the Federal Council.
3 The Federal Council departed from the expert commission's proposal. The 1996 draft (P-1996) thus dispensed with the current Art. 164 para. 1. Rather than retaining a reserve of powers for the legislature, P-1996 merely regulated the issue of legislative delegation. However, this provision merely reiterated the principles developed by case law and legal doctrine. Article 154(2) P-1996 thus provided that "a federal law or federal decree of general application subject to referendum may provide for the delegation of the power to enact rules of law, unless the Constitution excludes this. The delegation provision must set out, in broad terms, the content of these rules.“ As for Art. 154 para. 1 P-1996, it merely stated that ”[t]he Federal Assembly enacts federal laws and federal decrees of general application," which is now Art. 163 of the Constitution.
4 However, the Committees on Political Institutions (CIP) revived the Expert Committee's proposal, with two differences. First, they wanted to define the concept of importance not by a list of criteria, but by a list of particularly sensitive areas. The proposed provision then specified that the “fundamental provisions” of these different areas were always important. Second, the CIP report abandoned the strict separation of legislative powers. It maintained the Federal Assembly's power to adopt rules of law of lesser importance. The legislature was thus responsible for determining which rules should be adopted by the Federal Council, by analogy with the rules on legislative delegation.
5 Despite the Federal Council's repeated reluctance, the Constitutional Commissions and the Chambers of Parliament adopted the CIP's version with regard to the reservation of the law, the criterion of importance, and the list of areas, without much debate. These elements correspond to the current Art. 164 para. 1 of the Constitution. On the other hand, the second paragraph gave rise to heated controversy. Both Councils agreed on the principle of a provision reintroducing legislative delegation. However, in addition to the first sentence, which states that "a federal law may provide for the delegation of the power to enact legal rules, unless the Constitution excludes this ,“ the National Council was keen to retain the second sentence of P-1996, which stated that ”[t]he delegation provision must set out, in broad terms, the content of these rules .“ The Council of States considered this addition to be redundant in light of the first paragraph: the ”fundamental provisions“ of the areas referred to already covered the ”broad outlines" of the relevant rules. The disagreement persisted until the Conciliation Conference, where the Council of States' version prevailed.
B. Foundations
6 The decision to reserve the adoption of important legal rules to the legislature is based on three foundations. First, Art. 164 of the Constitution preserves democracy (both representative and direct) by ensuring that major political and social decisions are made by the most representative body and are subject to mandatory or optional popular referendums. Article 164 of the Constitution also contributes to the establishment and observance of the principle of the separation of powers by reserving (part of) legislative power to the legislature to the exclusion of any other body. Finally, this provision gives concrete expression to the principle of the rule of law by guaranteeing its applications, such as the principles of equality and predictability of state action.
C. Context
1. Formal legislative power
7 Art. 164 Cst. is part of a broader constitutional framework relating to the powers of the Federal Assembly. While Art. 163 Cst. defines the forms of action available to the Federal Assembly, Art. 164 Cst. grants it formal legislative power. However, Art. 164 Cst. does not confer any powers on the Confederation: it merely divides legislative powers between different federal authorities when these powers result from a constitutional provision (see Art. 3 of the Constitution). Art. 164 para. 1 of the Constitution defines which legal rules must be adopted by the Federal Assembly and submitted to a mandatory or optional referendum, by reference to Art. 163 and Art. 141 para. 1 lit. a and b of the Constitution. This is why Art. 164 Cst. actually concerns the powers of the Federal Assembly and the people, even though it is located in the section of the Constitution relating to the powers of the Federal Assembly.
8 Art. 164 Cst. must be read in conjunction with Art. 182 Cst., which governs the legislative powers of the Federal Council. According to the latter, “the Federal Council shall enact rules of law in the form of ordinances, insofar as the Constitution or the law authorizes it to do so” (para. 1), and “shall ensure the implementation of legislation, decrees of the Federal Assembly, and judgments rendered by federal judicial authorities” (para. 2). A cross-reading of Articles 164 and 182 of the Constitution allows us to distinguish between three normative levels: legal rules whose delegation is prohibited, those whose delegation is permitted, and those whose delegation is superfluous. This three-way division is based on two criteria, the contours of which remain undefined: the distinction between prohibited and permitted delegation is made according to the importance of the rule of law; the distinction between permitted and superfluous delegation corresponds to that between primary rules of law and implementing rules.
9 The Federal Council also has legislative power under Articles 184(3) and 185(3) of the Constitution when the interests of the country so require, or in order to counter existing or imminent disturbances that seriously threaten public order, external security, or internal security (infra N. 50). Finally, the transitional provisions of certain popular initiatives require the Federal Council to legislate by ordinance in place of the legislature when the latter has not implemented the initiative within a certain period of time (e.g., Art. 197(9)(1) and (11)(2) of the Constitution; infra N. 51).
2. General and special reservations of the law
10 By requiring that all important rules of law be set out in a law, Art. 164 para. 1 of the Constitution establishes a general reservation of the law. In contrast, the Constitution provides for various special or sectoral reservations, i.e., provisions that require the form of a law on a specific basis, for a particular subject or type of rule of law. Within their respective scope of application, these sectoral reservations are specific to Art. 164 para. 1 Cst. because they impose an independent and stricter requirement of form. This applies to serious restrictions on fundamental rights (Art. 36 para. 1 2nd sentence Cst.), restrictions on certain specific fundamental rights (Art. 28 para. 4, 29a, second sentence, 30(2) and (3), second sentence, and 31(1) of the Constitution) or general principles governing the tax system (Art. 127(1) of the Constitution). Furthermore, certain constitutional provisions merely refer to the law for the regulation of certain areas or issues (e.g. Art. 58 para. 2, second sentence, 59 para. 1, first sentence, 144 para. 3, 162 para. 2, 153, 178 para. 3 and 188 para. 2 Cst.). These do not go beyond what is required by Art. 164 para. 1 Cst., i.e., that important rules of law take the form of a law. It is therefore less a matter of a special relationship than a reference to Art. 164 para. 1 Cst.
D. Structure
11 Art. 164 comprises two paragraphs: the first deals with the reservation of the law, the second with legislative delegation. The first paragraph is in turn composed of two sentences. The first stipulates that “important provisions establishing rules of law shall be laid down in a law.” The second sentence lists areas whose “fundamental provisions” “belong in particular” to the category of important provisions. The wording of this paragraph is unfortunate, and the articulation of its two sentences is controversial. According to the minority position we adopt, the requirements set out in the two sentences of Article 164(1) are of a different nature. The first sentence establishes a formal requirement; the second, a substantive requirement, namely normative density. The formal requirement depends on the importance of the provision, which is a function of its consequences. The content requirement is based on the fundamental nature of a provision, which relates to the degree of precision of the law. In other words, according to the first sentence, any important rule of law must take the form of a law; according to the second sentence, the fundamental provisions of a law are always important because they constitute its minimum normative density.
II. Legal reservation (para. 1)
A. Requirement of legal form (para. 1, first sentence)
1. Form of “federal law”
12 Art. 164 para. 1 Cst. reserves a certain form (that of federal law) for certain provisions (those that establish important rules of law). Thus, Art. 164 para. 1 of the Constitution gives concrete expression to the principle of legality (Art. 5 para. 1 of the Constitution) and reinforces it, as it requires not only a legal basis for certain acts, but a qualified legal basis. This provision refers to Art. 163 para. 1 and Art. 141 para. 1 lit. a and b. Cst. and establishes a reservation in favor of law in the formal sense, i.e., an act adopted by the Federal Assembly with the mandatory or optional participation of the people. However, urgent laws that are (temporarily) exempt from any referendum, in accordance with Art. 165 Cst., are reserved. It should also be noted that Art. 164 para. 1 of the Constitution does not exclude important legal rules from being included in the Constitution or in international treaties whose democratic legitimacy is equivalent to that of federal laws (for the former: Art. 139, 194, and 195 of the Constitution; for the latter, Art. 140 para. 1 let. b, 141 para. 1 let. d and para. 2, and 166 para. 2 Cst.), or even in an independent ordinance (infra N. 50 ff.). Draft laws that fall under Art. 164 para. 1 of the Constitution must also be subject to a consultation procedure in accordance with Art. 3 para. 1 let. b LCo. The consultation procedure allows the cantons, political parties and interested parties to be involved in the drafting of such bills.
13 While Art. 164 para. 1 Cst. reserves the form of law for important provisions establishing rules of law, it does not limit the content of the law to these provisions. Art. 164 para. 1 Cst. does not provide a definition of the content of the law; in other words, the Constitution does not recognize any “reservation of ordinance.” The law may indeed contain provisions of lesser importance, including implementing provisions, or even individual and/or specific provisions. The power to adopt implementing provisions lies primarily with the Federal Council (Art. 182 para. 2 Cst.), but remains shared with the legislature.
2. “Important provisions that establish rules of law”
14 Art. 164 para. 1 Cst. limits the reservation of the law to “important provisions that establish rules of law.” The provisions concerned are limited to those that have a certain normative structure, i.e., those that lay down rules of law. This concept refers to Art. 163 para. 1 of the Constitution and Art. 22 para. 4 of the Parliament Act and refers to “general and abstract provisions of direct application that create obligations, confer rights, or assign powers.” Implementing provisions such as those provided for in Article 182(1) and (2) of the Constitution and individual and specific decisions are thus excluded from the scope of the reservation of law, even when they are important.
15 Article 164(1) of the Constitution then restricts the reservation of law to important provisions. This material criterion is the touchstone of Art. 164 para. 1 Cst., as it distinguishes between rules of law that must take the form of a law and those that are not subject to this requirement. This is why legal doctrine refers to the concept of the “material definition of the reservation of law” or, more commonly in German, the “materieller Gesetzesvorbehalt.” However, the Constitution does not provide a definition of the concept of importance, so it is necessary to refer to a set of criteria or indicators (or variations) developed by case law and doctrine. The importance of a provision is thus measured (1) by the circle of persons or situations affected; (2) the intensity of its consequences on the legal position of those affected; (3) its financial impact on individuals or the State; (4) its effect on the formation of political will or the organization of federal authorities; (5) the politically controversial nature of the issues it seeks to resolve; (6) its novelty and divergence from previously accepted principles; (7) the extent of the political controversy it generates.
16 The various indicators relate primarily to the consequences of the rule of law: in turn, these consequences may be significant because of their quantitative scope, as they apply to a wide range of recipients and situations, or because of their qualitative scope, in that they affect recipients with a certain intensity. These indicators do not have to be satisfied cumulatively; a norm may already be significant in relation to a single element. The importance of a provision cannot be determined in the abstract, but only in relation to the subject matter and purpose of the regulation. The assessment of the importance of a provision always depends on the specific circumstances and an overall assessment that does not lend itself to any simplistic approach. It therefore involves a significant margin of discretion in favor of the legislator.
17 The interpretation of the concept of importance must be guided by the fundamentals of Art. 164 of the Constitution, namely the guarantees of the rule of law, democracy, and the separation of powers. Legal doctrine also argues that these foundations must be accommodated, or even balanced, with other, sometimes divergent, public interest imperatives: the efficiency, speed, or flexibility of public activity, particularly in the case of technical rules. This would therefore involve taking into account practical considerations. In our view, however, this assertion should only be accepted with caution in view of the letter and spirit of Article 164 of the Constitution. Admittedly, case law recognizes that the expected level of normative density is reduced to the extent of the requirements of legal and practical reality. However, these considerations relate to the density of the rules, i.e., the degree of precision in the wording of a provision, and do not in themselves say anything about the importance of a rule of law. Moreover, the technical nature of a rule of law does not necessarily deprive it of its possible political and ethical dimensions. The ratio legis of Article 164(1) of the Constitution is precisely to ensure that an important rule of law is included in a law in the formal sense, even if considerations of expediency would argue in favor of its delegation. It cannot be accepted that the reservation of the law only applies when the law appears to be the appropriate instrument – otherwise the reservation of the law would be largely meaningless.
B. Requirement for the law to be normatively dense (para. 1, 2nd sentence i.i.)
1. “Fundamental provisions”
18 The second sentence of the first paragraph lists areas whose “fundamental provisions” belong “in particular to [the] category [of important provisions]”. The combination of the adjectives ‘important’ (para. 1, 1st sentence) and “fundamental” (para. 1, second sentence) raises difficulties of interpretation. According to the majority opinion, they are synonymous. The difference is said to be aesthetic. The phrase “in particular” thus refers to the list of areas, suggesting that it is not exhaustive. We agree with the minority view, defended in particular by Dubey, that the qualifier “fundamental” should not be read as a synonym for ‘important’ but rather as a reference to the “broad outlines” of the areas concerned. Art. 164 para. 1 2nd sentence of the Constitution thus establishes a requirement of content, i.e. a minimum level of normative density. It follows from Art. 164 para. 1 2nd sentence of the Constitution that when the law addresses one of the areas mentioned, the law must define the broad outlines or the basis of the regulation—i.e., its purpose, its object, its scope, and its main principles. In other words, while importance defines the issues—however specific they may be—that must be regulated by law in the formal sense (what), the qualifier “fundamental” serves to determine the precision with which the law must regulate the various areas of social life when the law addresses them (how).
19 This interpretation derives primarily from the letter and syntax of Art. 164 para. 1 Cst., both in terms of the terms used and the grammatical position of the phrase "in particular ." In the primary sense, something is fundamental if it serves as the basis for something else. In a normative context, this term refers to the basis on which all rules of law are founded; in Swiss law, this means a formal law that defines the broad outlines. The preparatory work for Art. 164 para. 1 Cst. supports this interpretation. The CIP, which first introduced the term “fundamental,” stated in this regard that “five key areas have been identified, the broad outlines of which must be enacted in the form of federal laws,” and that the definition of these “fundamental principles” can be "determined, to a large extent, by analogy with the current rules on delegation ." Thus, while they considered that they could dispense with the concept of legislative delegation (supra N. 4), the CIP retained the requirements relating to legal basis and normative density. Then, when the concept of legislative delegation was expressly reintroduced, the constituent commissions and then the councils abandoned the second sentence of Article 164(2) of the Constitution, considering that it was already covered by the first paragraph: they deemed it superfluous to specify that the law should describe the “broad outlines” of the delegation since it had to contain the “fundamental provisions.” This awkward wording can be explained by the historical context: the expert committee wanted to dispense entirely with legislative delegation in favor of the criterion of importance; the CIPs retained this version, but added, in parallel with the criterion of importance, the requirements relating to legislative delegation through the requirement relating to fundamental provisions. The Federal Assembly added a second paragraph that explicitly reintroduced legislative delegation, without however amending the first paragraph of the CIP draft, which implicitly reiterated the conditions. It follows that Art. 164 para. 1, second sentence, of the Constitution has less of a dogmatic link with the first sentence of the first paragraph (the criterion of importance) than with the second paragraph (legislative delegation).
20 Furthermore, the committees deliberately retained the terms “important” and “fundamental.” The CN committee unanimously rejected a motion to retain only the former, as it was unable to distinguish between the two: it considered instead that ‘fundamental’ referred to the basis (“die Grundlage”) on which the Federal Council is called upon to adopt ordinances. This law-ordinance dialectic and the associated requirements for normative density emerge more broadly from the deliberations within the constituent committees and in plenary session. This is also evidenced by the numerous parliamentary references to the relationship between the qualifier “grundlegend” in the current Art. 164 para. 1 of the Constitution and the term “Grundlage” in Art. 170 para. 1 of the German version of the CIP draft. The latter provided that the Federal Council should adopt ordinances “on the basis of and within the framework of [...] laws” (“ auf der Grundlage und im Rahmen von [...] Gesetzen”) .
21 Finally, this is also the meaning given to the term “fundamental” by the case law of the Federal Supreme Court relating to cantonal legislative delegations, which Art. 164 para. 1 was also intended to codify. Similarly, in its case law on Art. 127 para. 1 of the Constitution, which enshrines a specific legal reserve in tax matters, the Federal Supreme Court affirms that the requirement that the law must contain the fundamental provisions relating to the collection of a fee constitutes a requirement of normative density. It ultimately concludes that if a rule of law falls under one of the subparagraphs (a) to (g) of Article 164(1) of the Constitution, its delegation remains possible, but that the clause on which this delegation is based must “be sufficiently precise to define the fundamental lines of the delegated regulation, i.e., the purpose, object, and scope of the delegated powers.” This is indeed the core of the requirement of normative density.
2. “In particular”
22 Art. 164 para. 1 2nd sentence Cst. requires that all legal acts be based, directly or indirectly, on a formal legal basis that defines their broad outlines. According to this interpretation, the fundamental provisions therefore constitute a subgroup of the important provisions, which justifies linking the phrase “in particular” to the articulation of the two sentences of Art. In this sense, the phrase “in particular” has a quantitative dimension. It also has a qualitative dimension: fundamental provisions are particularly important. It follows from these considerations that fundamental provisions are always important, but the reverse is not true: not every important provision is fundamental. Indeed, the importance of a provision is measured both in terms of its scope and generality and in terms of the concrete intensity of its effects. Therefore, a rule could prove to be important without being part of the broad outlines of a certain area in that it would be precise, detailed, individualized, costly, unprecedented, and/or controversial. This is the case with a serious infringement of the fundamental rights of a limited group of people, such as an obligation to build up reserves imposed on certain companies that produce essential goods (Art. 11 LAP), the introduction of a targeted exception to a general rule, such as the exclusion of certain companies from the Labor Act (Art. 2 LTr), the introduction of a hardship clause, such as the financial support provided in response to the COVID-19 epidemic (Art. 12 COVID-19 Act), or specific conditions governing access to a benefit, such as the information requirements for grant applications (Art. 15c SuA).
3. Normative density of other important provisions
23 Art. 164 para. 1 2nd sentence of the Constitution thus establishes a requirement for normative density, according to which the law must contain the fundamental provisions of various areas because they are particularly important. In this respect, Art. 164 para. 1, second sentence, of the Constitution specifies and reinforces the requirement of general normative density of the law, which already derives from Art. 164 para. 1 of the Constitution and, more generally, from Art. 5 para. 1 of the Constitution. The requirement of normative density is in fact the corollary of the reservation of the law. Any important legal provision, even if it is not fundamental, must demonstrate a sufficient degree of normative density. Otherwise, the reservation of law would have no normative scope: the legislature could adopt a provision that effectively gives carte blanche to other authorities. Thus, the law must not only contain the broad outlines of the areas mentioned in Art. 164 para. 1, second sentence, of the Constitution, but its important provisions must also always demonstrate sufficient normative density.
24 To determine the expected normative density of the law, reference should be made to the principles developed by case law. The normative density of a norm refers to the degree of precision, clarity, and determination of its wording. The law must therefore be worded with sufficient precision to enable individuals to adapt their behavior and to foresee the consequences of a particular behavior with a degree of certainty appropriate to the circumstances. However, the degree of precision expected cannot be determined in the abstract. Case law notes that the legislator cannot entirely refrain from using indeterminate concepts whose scope is not precisely defined; this may be justified by the diversity of the facts to be regulated, by the need to be able to take decisions that are sufficiently adapted to the specific case, or by the adaptation of the rules to a constantly changing context. The degree of precision expected also varies depending on the multiplicity of situations to be regulated, the complexity or predictability of the decision to be taken in the particular case, the addressees of the norm, or the seriousness of the infringement of constitutional rights. It also depends on the assessment that can be made objectively when a specific case of application arises. Highly technical or complex areas can accommodate a lower level of regulatory density. The rules of law governing the administration of benefits are subject to lower regulatory density requirements than those governing the administration of restrictions. In the case of police measures implemented in response to threats that are difficult to predict and must be adapted to the specific circumstances of each case, it is inevitable that the legal basis will be less precise. Finally, low normative density can be compensated for by strengthening procedural safeguards or even by strengthening proportionality controls.
C. List of areas (para. 1, 2nd sentence i.f.)
25 Art. 164 para. 1, 2nd sentence i.f. of the Constitution lists areas whose fundamental provisions are always important. Legal scholars are critical of the principle of such a list, arguing that it misses the mark. Whether or not a rule of law belongs to one of these areas says nothing in itself about its importance or fundamental nature. On the one hand, these areas certainly include rules that are not important. On the other hand, it is doubtful that fundamental provisions in other areas are less important. Nevertheless, this list is not without interest, provided that it is placed in the context of the function of Art. 164 para. 1 of the Constitution. The list thus serves in particular to guide parliamentary debates and to create the conditions for a rational and transparent discussion of the powers of the federal authorities, both within the Federal Assembly and in public debate. The list acts as a safeguard, reminding the legislature of sensitive areas that require greater attention. The list of areas therefore effectively fulfills this function whenever reference is made in parliamentary debates to the various letters of Art. 164 para. 1, second sentence, of the Constitution.
26 With regard to the areas covered, the list includes areas in which the Federal Supreme Court has invalidated ordinances due to insufficient legal basis. It is not exhaustive, even though it already covers more or less the entire range of state activity. The various areas frequently overlap. Furthermore, the required level of regulation varies from one area to another. Art. 164 para. 1 2nd sentence i.f. Cst. mentions the following areas.
27 The exercise of political rights (let. a). Political rights consist of the forms of participation by citizens in the formation and expression of the will of the people (Art. 34 Cst.). These rights are defined by the Constitution itself, but must be put into practice. Political rights can only be exercised within a substantive, procedural, and institutional legal framework, such as the provisions defining the electoral district, the voting system for the National Council, political domicile, or electronic voting.
28 Restriction of constitutional rights (letter b). The concept of constitutional rights refers to constitutional provisions that protect citizens against state intervention or those that, although primarily pursuing a public interest, also protect private interests. The provision is therefore broader than just “fundamental rights.” . Similarly, the concept of “restriction” goes beyond that enshrined in Art. 36 para. 1 of the Constitution. This is all the more true given that the majority of legal scholars, in our view wrongly, reduce the concept of “restriction” in Art. 36 para. 1 of the Constitution to fundamental freedoms, to the exclusion of social rights. The regime of Art. 36 Cst. should also apply to the latter, if not directly, then at least by analogy: social rights impose both positive and negative obligations on the State, which lend themselves to the dialectic of rights and restrictions in the same way as fundamental freedoms. For the purposes of applying Art. 164 para. 1 Cst., however, the practical scope of the controversy is limited, since letter c includes any right that does not fall under letter b.
29 The rights and obligations of persons (letter c). Letter c tends to merge with the definition of “rule of law” (supra N. 14) and largely overlaps with letters a, b, and d, which has given rise to some criticism. It is primarily a subsidiary clause. However, its scope is limited and the areas it covers are uncertain. Examples include rights and obligations under federal personnel law, social insurance law, nationality law, and even criminal law. Some also mention private law, which others criticize.
30 Taxpayer status, the purpose of taxes, and the calculation of tax amounts (letter d) . Letter d reflects the principle of legality in tax matters, which is also enshrined in Art. 127 of the Constitution. This principle is based on an important case law practice according to which the law must set out the essential rules concerning the circle of taxpayers (tax subject), the object (tax object) and the method of calculating the contribution (calculation basis and rate), as well as exemptions and exceptions or the purposes of causal fees. Letter d is not exhaustive. The regime also applies to causal fees and not only to taxes, even if it allows for certain reductions in such cases. However, it does not apply to administrative fees.
31 The tasks and services of the Confederation (letter e). The tasks of the Confederation are set out in the Constitution (Art. 3 and 42 para. 1 Cst.). In this context, the reservation of law refers to their definition and implementation. It includes the purpose, object, and scope of the Confederation's tasks, as well as the instruments and procedures used to implement them, or their delegation to a decentralized entity. The term “services” is used to confirm that the principle of legality applies not only to restrictive administration but also to service administration, even though its requirements are less stringent in view of the less incisive consequences of service administration.
32 The obligations of the cantons in the implementation and enforcement of federal law (letter f). Letter f refers to Article 46 of the Constitution, which requires the cantons to implement federal law in accordance with the Constitution and the law. By requiring that the cantons' implementation obligations be provided for by law, this provision enshrines a federalist dimension of the principle of legality. The concept of “implementation” encompasses any measure aimed at ensuring compliance with or application of federal law; therefore, the term “enforcement” is redundant.
33 The organization and procedure of federal authorities (letter g). The concept of “federal authority” includes any entity entrusted with a federal public task, whether legislative, executive, or judicial, centralized or decentralized, titular or delegated. The specific organizational requirements depend on the type of authority, but they include, in particular, legal status, autonomy, powers, supervision, the appointment of officials, incompatibilities, and issues of coordination and collaboration. The concept of “procedure” covers the adoption of any rule or decision that has legal effects, whether at the legislative, judicial, or administrative level. This includes federal procedural laws, certain specific areas such as public procurement, and procedures for the adoption of international law. While Art. 164 para. 1 let. e refers to federal authorities, the same requirements apply to procedures before cantonal authorities, as the list is not exhaustive. This is the case, for example, with a federal ordinance that submits a dispute to civil jurisdiction regardless of its public law nature, even if it involves cantonal courts.
III. Legislative delegation (para. 2)
A. Principle of legislative delegation
1. Concept
34 Art. 164 para. 2 Cst. enshrines and, at the same time, limits legislative delegation, i.e., any act by which the legislature (the Federal Assembly, with the possible participation of the people, supra N. 7 and N. 12) confers on another authority (or even another institution or person) the right or obligation to enact a rule of law that falls within its competence. The concept of delegation did not appear in the old Constitution, although it was already practiced and sanctioned by the Federal Supreme Court. Legislative delegation is a practical measure, as it allows the legislature to set aside detailed or minor issues in order to focus on the important ones. Legislative delegation is justified when it is necessary for the flexibility and speed of government action, when it avoids the need for the law to regulate details, or when technical issues are likely to evolve. However, each legislative delegation affects the separation of powers and the democratic quality of the law. On the one hand, it allows the legislature to relinquish a power assigned to it by the Constitution to another body; on the other hand, it removes the adoption of rules of law from the participation of the people. This is why legislative delegation is subject to various conditions, which are examined below.
35 The rule of law adopted on the basis of legislative delegation takes the form of a so-called dependent substitute ordinance. In this constellation, the ordinance depends on a law that provides for legislative delegation and replaces it because it contains primary rules of law (supra N. 8). Legislative delegation only concerns the general legislative power of the Federal Assembly. It does not apply to cases where a federal authority adopts an ordinance on the basis of a power directly provided for by the Constitution, i.e., an original power (see Art. 84 para. 2, 182 para. 2, 184 para. 3 and 185 para. 3 Cst. for the Federal Council, Art. 159 para. 4 and 173 para. 1 let. c Cst. for the Federal Assembly and Art. 188 para. 3 Cst. for the Federal Supreme Court). In the latter case, the ordinance is said to be independent if it is based not on a federal law (and does not depend on it), but on the Constitution. That being said, certain original powers of the Federal Council may conflict with Art. 164 para. 1 Cst. because they sometimes lead to the adoption of important legal rules. This tension is examined below (infra N. 51 s.).
2. Subdelegation
36 The Constitution does not mention the issue of sub-delegation. Sub-delegation occurs when the delegatee in turn transfers the power delegated to it. Legal doctrine deduces from the silence of the Constitution that it does not exclude sub-delegation. Art. 48 LOGA governs this issue for the Federal Council. According to the first paragraph, the Federal Council may delegate to the departments the power to enact legal rules, but must then take into account “the scope of the proposed rule.” Such a limitation is justified because subdelegation further weakens the link between citizens and the adoption of law. Furthermore, sub-delegation to a department affects the distribution of powers within the administration because it weakens the participation of other departments. Finally, the right of parliamentary committees to be consulted applies only to Federal Council ordinances (Art. 151 ParlA), excluding departmental ordinances. The message on the LOGA states that the attribution of the power to issue an ordinance to the Federal Council or to a department depends on the importance of the matter and that delegation is all the more justified when it concerns a technical provision. Similarly, the FOJ mentions the importance of the matter, the group of addressees, the consequences of the provision, and the technical nature of the subject matter. These criteria are reminiscent of the assessment of the importance of a provision within the meaning of Art. 164 para. 1 of the Constitution. However, the assessment of the degree of importance is independent of Art. 164 para. 1 of the Constitution, since provisions that are important within the meaning of that article cannot be delegated to the Federal Council. As for the Federal Supreme Court, it appears to limit sub-delegation based on Art. 48 para. 1 LOGA to implementation rules, which it equates with technical requirements, even though it adopts a broad definition of the concept of implementation.
37 While delegation to departments does not require a specific formal legal basis, the same does not apply to delegation to associations and offices. Art. 48 para. 2 LOGA stipulates that the delegation of legislative powers to associations and offices is only permitted "if a federal law allows it ."
38 Art. 48 LOGA does not mention second-degree subdelegation, whereby departments or offices and groups delegate powers to administrative entities subordinate to them. According to Sägesser, its constitutionality should be affirmed as long as it is not excluded by the (sub-)delegation clause. However, it is doubtful whether a department that has been delegated powers on the basis of Art. 48 LOGA can delegate them to an office without a formal legal basis, at the risk of circumventing Art. 48 para. 2 LOGA. For reasons of legal certainty, it would be advisable for the delegation clause to explicitly provide for the authorization or prohibition of sub-delegation.
3. Recipients
39 The Constitution does not mention the possible recipients of legislative delegation. These are primarily the Federal Council or the administration, but also the Federal Supreme Court or the Federal Assembly (when it adopts an ordinance, in accordance with Art. 163 para. 1 Cst., with the effect of removing the adoption of a rule of law from the optional referendum within the meaning of Art. 141 para. 1 of the Constitution). From a federalist perspective, Art. 164 para. 2 of the Constitution governs “horizontal” delegation, as opposed to “vertical” delegation; the former relates to relations between federal authorities, the latter to those between authorities at a different federal level.
40 Furthermore, the legislature may delegate the power to issue ordinances to autonomous public law institutions. This raises the question of the relevant conditions and, in particular, the normative density of the delegation clause. A case-by-case analysis, institution by institution, is necessary. According to the Federal Supreme Court, legislative delegation to FINMA is subject to strict conditions, as its Board of Directors is not elected by Parliament, unlike the Federal Council. The democratic legitimacy of FINMA's standards is therefore weaker. Consequently, the basis in a formal law must be all the more clear. In the absence of specific legal requirements, the delegation clause is limited to what is, within the framework of legal regulation, indispensable for the achievement of the legal objective, i.e., the minimum necessary. On the other hand, the Federal Supreme Court considers that the management of an ETH has considerable discretion with regard to the course system, examinations, and related requirements. The autonomy of the ETHs is explicitly guaranteed in Article 63a of the Constitution, in addition to deriving from the freedom of science (Article 20 of the Constitution). In short, the conditions for delegation to an autonomous public-law institution are flexible when it comes to access to an institution with a specific function; they are strict when the delegated rules have significant consequences for the rights of citizens.
41 The constitutionality of legislative delegations to private bodies or individuals is controversial. Art. 164 para. 2 of the Constitution must be contrasted with Art. 178 para. 3 of the Constitution. The latter explicitly provides for the delegation of public tasks incumbent on the administration to private bodies or individuals, whereas Art. 164 para. 2 Cst. does not mention it. Notwithstanding the absence of a constitutional basis, such legislative delegations to private entities are common in practice. While a legislative delegation to a private body may be explicit, it often results from a “dynamic reference.” The technique of referring to private standards is becoming increasingly important, particularly in technical fields. A legislative act includes a reference when it refers to regulations issued by a private body and thereby refrains from regulating the subject in question. The reference constitutes the link between the legislative act and the private standard. A reference is said to be static when it relates to existing rules and does not create or modify standards. A reference is said to be dynamic when it does not refer to a specific version of the private standard, so that the latter can evolve as the private body makes changes to it. A dynamic reference is equivalent to a legislative delegation. The classification of a reference is a matter of interpretation that is decided on a case-by-case basis. The constitutionality of static references is in principle accepted, since they involve the adoption of standards rather than delegation. On the other hand, dynamic references are subject to the conditions of legislative delegation and its controversies.
42 The majority opinion is that legislative delegation to private bodies or individuals is permissible insofar as it concerns secondary and technical rules. The delegation of a rule of law that goes beyond simple enforcement is in principle excluded; on the other hand, rules that could be included in implementing ordinances may be delegated to private bodies by analogy with Art. 178 para. 3 of the Constitution. From a functional point of view, this would then be an administrative rather than a legislative exercise. On the other hand, some legal scholars, the Federal Council, and the FOJ completely rule out the constitutionality of legislative delegation to private bodies due to the lack of an explicit constitutional basis.
43 The case law of the Federal Supreme Court is somewhat inconsistent, but seems more generous than the latter opinion. Initially, the Federal Supreme Court stated that delegation to a private body was subject to the requirement of a constitutional basis and compliance with the conditions relating to legislative delegation. Nevertheless, if the standards could be the subject of an implementing ordinance (primarily purely technical standards), this constituted a delegation of administrative tasks and Art. 178 para. 3 of the Constitution applied by analogy. Subsequently, however, the Federal Supreme Court ruled, without reference to its aforementioned decision, that a legislative delegation was subject to the conditions relating to legislative delegation within the meaning of Art. 164 para. 2 of the Constitution, namely a legal basis and not a constitutional one. In a subsequent ruling, the Federal Supreme Court explicitly restricted the scope of its initial ruling, stating that the reservations expressed with regard to dynamic referral were limited to the field of taxation; in other areas, delegation could take place without a constitutional basis. In a final ruling, the Federal Supreme Court reaffirmed that delegation to a private body was to be analyzed from the perspective of Art. 178 para. 3 of the Constitution, without however indicating whether the latter applied directly or by analogy, nor addressing its relationship with Art. 164 para. 2 of the Constitution.
44 In our view, legislative delegation to private individuals should only be permitted in a restrictive manner. The text of Art. 164 of the Constitution and its interpretation in conjunction with Art. 178 para. 3 of the Constitution, as well as the preparatory work, rule this out. Furthermore, the ratio legis of Art. 164 Cst. lies in guaranteeing the democratic legitimacy of federal law and the separation of powers. The silence of the Constitution cannot justify a practice that undermines these foundations. The question of the application by analogy of Art. 178 para. 3 Cst. is another matter. Such delegation must be limited to implementing rules, and the interpretation of this concept must be restrictive. Thus, private standards can only clarify the will of the legislator without repealing or amending the law and without restricting the rights of citizens or subjecting them to any additional obligations, even if this is in line with the purpose of the law. In addition to strict application of the conditions relating to legislative delegation, delegation to a private body or individual must in all cases pursue a public interest and satisfy the requirements of the principle of proportionality (Article 5(2) of the Constitution). Furthermore, the accessibility of the standards must be guaranteed. Finally, it would be wise to subject the private body to minimal state supervision.
45 It must be noted that federal law includes delegations to private bodies whose constitutionality is questionable. This is the case, for example, with a delegation to “self-regulatory bodies” in the area of money laundering, whereby the latter "issue regulations [specifying] the due diligence obligations [...] for financial intermediaries affiliated with them and regulate the terms of application" (Art. 25 para. 1 and 2 AMLA). Thus, a “self-regulatory body” is an association recognized by FINMA, to which financial intermediaries not directly subject to its supervision may affiliate in order to meet their anti-money laundering obligations, and which issues rules of conduct in accordance with the AMLA, monitors compliance by its members, and has disciplinary power over them. Secondly, with regard to vocational training, the law stipulates that “the competent professional organizations shall define the conditions for admission, the required level, the qualification procedures, the certificates issued, and the titles awarded” (Art. 28 para. 2 LFPr). Such delegations go beyond mere execution, as they affect the rights and obligations of individuals. They therefore require a constitutional basis, which is lacking in federal law.
B. Admissibility of legislative delegation
1. General conditions
46 Legislative delegation has important consequences in terms of democratic legitimacy and the separation of powers. That is why the Federal Supreme Court has imposed a series of four cumulative conditions on the practice: the delegation must (1) be set out in a formal law; (2) not be excluded by higher law; (3) be limited to a specific subject matter; and (4) contain the main points of the regulation, particularly when the legal situation of individuals is significantly affected. This case law concerns legislative delegations at the cantonal level, since Art. 190 of the Constitution prevents effective review of a delegation clause contained in a federal law, but is applicable mutatis mutandis at the federal level. Of these four conditions, Art. 164 para. 2 of the Constitution explicitly mentions only the first two. However, the framers of the Constitution did not intend this wording to depart from previous practice. The conciseness of Art. 164 para. 2 Cst. is explained rather by its genesis and its systematic nature. As mentioned above, the Federal Assembly explicitly abandoned the second sentence of the second paragraph proposed by the National Council, which provided that the delegation clause should set out the broad outlines (supra N. 5). It considered this addition to be superfluous in view of the first paragraph, which stipulates that the fundamental provisions of the areas referred to must be included in the law. Furthermore, in its final version, Art. 164 para. 2 of the Constitution refers to its first paragraph, which implicitly covers the two remaining conditions. In this respect, Art. 164 para. 2 of the Constitution already implicitly contains the last two conditions.
2. “Provided for in a federal law”
47 First, Art. 164 para. 2 Cst. requires that the delegation be provided for in a “federal law,” i.e., a law in the formal sense. The purpose of this condition is to safeguard popular rights by allowing a referendum to be held (by reference to Art. 163 and 141 Cst.). If the people are unable to call a vote on the delegated regulation, they may vote on the principle of delegation. This is why the delegation rule must always be explicit. Implicit legislative delegation would also conflict with the requirements of legal certainty. Art. 141 para. 2 let. b LParl also serves this function by requiring the Federal Council to state, in its message on a draft act, the powers that the draft proposes to delegate.
3. “Unless the Constitution excludes it”
48 Secondly, a delegation is permissible “unless the Constitution excludes it.” With this wording, Art. 164 para. 2 Cst. refers to general or special legal reservations (supra N. 10). When the Constitution reserves the form of the law, it excludes delegations. In this respect, Art. 164 para. 2 Cst. refers first to its first paragraph. The reservation of the law in the formal sense enshrined in Art. 164 para. 1 Cst. thus constitutes a case of exclusion of legislative delegation. The articulation of the two paragraphs of Art. 164 Cst. raises certain difficulties of interpretation, but the majority opinion rightly considers that legislative delegation relating to important rules of law is inadmissible, a view corroborated by the case law of the Federal Supreme Court. Special reservations also constitute cases of sectoral exclusion of legislative delegation. This is the case for serious restrictions on fundamental rights (Art. 36 para. 1 Cst.) or deprivation of liberty (Art. 31 para. 1 Cst.) (supra N. 28).
4. Implicit conditions
49 By referring to its first paragraph, Art. 164 para. 2 Cst. excludes legislative delegations relating to fundamental provisions in the areas listed in letters a–g. It follows that Art. 164 para. 2 Cst. already implies the last two conditions developed by the Federal Supreme Court. These two conditions relate to the normative density of the law. They tend to prohibit delegations that give the delegatee “carte blanche.” In other words, they ensure that fundamental provisions are adopted by the legislature. This is precisely the requirement set out in Art. 164 para. 1, second sentence, of the Constitution. By referring to the latter provision, Art. 164 para. 2 of the Constitution therefore covers the last two conditions developed by the Federal Supreme Court. Thirdly, the delegation must be limited to a specific matter. Delegations whose scope of application would be too broad are excluded. Finally, the law must set out the main rules in broad terms, namely the purpose, object, and scope of the delegated powers. In order to serve as a legal basis, the delegation provision must be sufficiently detailed; reference should be made to the case law cited above (supra N. 24). The legislature cannot relinquish a matter without defining, to a certain extent, the content of its regulation. In this regard, it is essential that the provisions of the delegated rule can be linked or related to its formal legal basis. In other words, the law must clearly constitute the basis for any state act derived from it (supra N. 19).
C. Conflict with the original powers of the Federal Council
50 Art. 164 para. 2 of the Constitution deals with the delegation of powers provided for in a law. However, the Constitution does not specify the relationship between original powers – i.e., the provisions of the Constitution that empower (in particular) the Federal Council to adopt rules of law – and the reservation of law within the meaning of Art. 164 of the Constitution. When the Federal Council adopts legal rules on the basis of an original power, it is required to adopt important legal rules. This is primarily the case with Articles 184(3) and 185(3) of the Constitution, which grant the Federal Council legislative powers when the interests of the country so require, or in order to counter existing or imminent disturbances that seriously threaten public order, external security, or internal security. This emergency or necessity right seems set to gain in importance in view of the broad interpretation given to it by the Federal Council in the context of the recapitalization of UBS and the COVID-19 pandemic. However, it is accepted that these provisions are specific to (and therefore take precedence over) Art. 164 of the Constitution, particularly in view of the public interest at stake and the temporary nature of the measures.
51 Certain transitional provisions adopted in connection with popular initiatives require the Federal Council to issue provisional “implementation” or “enforcement” ordinances in the event of inaction by the Federal Assembly within a specified period (see, for example, Art. 197(9)(1) and (11)(2) of the Constitution). This mechanism serves to exert pressure on the Federal Assembly and ensure the effective implementation of the constitutional initiative. However, this creates a tension with Art. 164 of the Constitution, since the implementation of a popular initiative potentially leads to the adoption of important legal rules. This tension must be resolved by way of interpretation. In such a situation, the Constitution must be interpreted harmoniously, favoring the most respectful reading possible of the various provisions and ensuring “practical concordance.” The interpretation must take into account the overall constitutional context: the will of the initiators and the subsequent nature of a provision alone are not sufficient to establish a relationship of specificity.
52 Legal doctrine considers that such transitional provisions grant the Federal Council the power to adopt important rules of law and take precedence over Article 164 of the Constitution. According to Rausch, this primacy is justified by the temporary nature of the ordinances thus adopted. This approach is unconvincing, insofar as the democratic deficit of the ordinance is amplified by the prejudicial effect it has in practice: for reasons of legal certainty, the federal law is likely to incorporate all or part of the ordinance. Furthermore, the temporary nature of a rule of law does not necessarily diminish its importance. This is why the Constitution limits the Federal Council's ability to adopt important rules of law on a temporary basis to emergency situations and those that serve a particular public interest (Art. 184 para. 3 and 185 para. 3 of the Constitution). Wyss considers that Art. 164 para. 1 must give way because the transitional provisions would be meaningless if they did not allow the Federal Council to adopt important legal rules. In practice, the Federal Council would be unable to fulfill its mandate. In our view, however, this position gives too much weight to the will of the initiators and the subsequent nature of the transitional provisions, to the detriment of the faithful expression of the will of the people.
53 An initiative that allows the Federal Council to adopt important legal norms always has two objectives: one relates to the substance of the initiative, the other modifies the constitutional architecture of the separation of powers. The Constitution provides that important legal rules are adopted by the Federal Assembly; it subjects federal laws to referendum; it states that laws, unlike ordinances, are not subject to constitutional review; as for any pressure exerted on the Federal Assembly, this is the responsibility of the people through elections. To consider that the Federal Council can adopt important legal rules by means of ordinances is to undermine the entire constitutional balance. It cannot therefore be assumed that the constituent assembly intends to depart from this constitutional structure when deciding on the substance of a popular initiative, unless the constituent assembly expresses itself unambiguously in this regard. This is all the more true given that the messages relating to these initiatives do not mention the relationship between the transitional provisions and Article 164 of the Constitution. This omission can be contrasted with Art. 141 para. 2 let. b LParl, which, as indicated above, requires the Federal Council to clarify any legislative delegation in its message relating to a bill. This obligation exists even though important rules of law cannot be delegated in any case (supra N. 15). This is not to say that such initiatives should be invalidated on the grounds of a violation of the principle of unity of subject matter – which is unlikely given the practice of the authorities – but rather to suggest that the principle of unity of subject matter should guide the interpretation of constitutional provisions because it guarantees the faithful expression of the will of the people. Thus, in the absence of an unequivocal expression of a contrary will – which should be based in particular on a clear text and an explicit message to that effect – the transitional provisions must be interpreted in such a way that they do not alter the constitutional architecture. The legislative mandates granted to the Federal Council by such transitional provisions confer the power to adopt substitute ordinances, but not important rules of law.
IV. Justiciability
54 The question of the justiciability of an ordinance arises primarily in relation to ordinances of the Federal Council. While abstract review is excluded (Art. 189 para. 4 Cst.), the Federal Supreme Court may review Federal Council ordinances in the context of a preliminary review. The review of an ordinance therefore only takes place in the context of an individual and concrete act of application. A citizen may invoke a violation of the separation of powers when an ordinance lacks sufficient legal basis or contains provisions that should be included in a law. In such cases, the Federal Supreme Court refuses to apply the ordinance and annuls the decision based on it. It is then up to the Federal Council to amend or repeal its ordinance.
55 The Federal Supreme Court may freely review the Federal Council's independent ordinances. These are based on the Constitution, but this does not exempt the Federal Council from complying with federal law, in particular the Constitution and federal statutes. It is for the Federal Supreme Court to ensure that the independent ordinance does not conflict with other constitutional norms, unless the constitutional norm conferring powers itself provides for or accepts such infringements. That being said, the Federal Supreme Court does not encroach on the political discretion that belongs to the Federal Council within the scope of its original powers.
56 The situation is more complex, however, when it comes to a dependent ordinance, which is based on a law. The review of a legislative delegation is analyzed differently depending on whether the subject of the review is the law on which it is based or the ordinance itself. Under federal law, the Federal Supreme Court is required to apply a law that provides for legislative delegation under Article 190 of the Constitution, even if it violates the above-mentioned conditions (Anwendungsgebot). However, the obligation to apply federal law does not prevent it from reviewing compliance with those conditions (kein Prüfungsverbot). On the other hand, the Federal Supreme Court may review both the legality and constitutionality of dependent substitute ordinances on a preliminary basis. The Federal Supreme Court first examines the conformity of the ordinance with the law on which it is based, i.e., whether the delegated authority has remained within the limits of the powers conferred upon it. When an ordinance complies with the law, the Federal Supreme Court then checks its compliance with the Constitution, provided, however, that the legislative delegation authorizes the delegate to derogate from it. Insofar as a delegation clause gives discretionary power to the Federal Council, this clause is binding on the Federal Supreme Court pursuant to Art. 190 of the Constitution. In such a case, the Federal Supreme Court must limit itself to examining whether the provisions in question clearly exceed the scope of the delegation of powers granted by the legislature to the executive authority or whether, for other reasons, they are contrary to the law or the Constitution; it is not empowered to substitute its own assessment for that of the Federal Council. The review of the constitutionality of an ordinance is therefore indistinguishable from the review of arbitrariness and equal treatment.
57 Finally, the constitutionality and legality of an ordinance adopted on the basis of a subdelegation are assessed according to the principles applicable to a Federal Council ordinance based on a delegation of law.
V. Conclusion
58 Art. 164 Cst. is a pivotal provision of Swiss constitutional law, in that it articulates the requirements of democracy and the separation of powers with the need for flexible and effective state action. While the pursuit of efficiency, promoted in particular by New Public Management, tends to prevail today, Art. 164 Cst. must continue to preserve the “dignity of the law” and the democratic principles on which it is based. The tension inherent in Art. 164 of the Constitution continues to remind us of this. For example, the initiative “for direct democracy and the competitiveness of our country – against Switzerland becoming a passive member of the EU (Compass Initiative)”, submitted to the Federal Chancellery in August 2025, proposes introducing a new paragraph 3 to Art. 164 of the Constitution, according to which “the adoption of important provisions laying down rules of law must be expressly provided for in a federal law or in an international treaty subject to a mandatory referendum and restricted to a narrowly defined area.” It also provides for an amendment to Art. 140 para. 1 of the Constitution, submitting “to the vote of the people and the cantons [...] international treaties that provide for the adoption of important provisions establishing rules of law.” However, as we have seen, the Constitution already subjects international treaties to an optional referendum when they contain important provisions establishing rules of law (Article 141(1)(d) of the Constitution). Furthermore, neither Art. 164 nor Art. 140 of the Constitution provides for a double majority of the people and the cantons for the adoption of laws establishing important rules of law – nor, for that matter, for a mandatory referendum. One may therefore question the appropriateness of establishing stricter requirements for international treaties than for federal law: such asymmetry may reflect less a concern for democracy than a fundamental reluctance to accept international law (or, in particular, European law). Democratic legitimacy must be preserved, not exploited.
About the author
Leo Tiberghien is a doctoral candidate at the University of Fribourg. His research focuses on the legal framework applicable to the privatization of financing, law-making procedures, and the implementation of law and operations of international organizations. He was a visiting researcher at the Lauterpacht Center for International Law, University of Cambridge (2023-2024) and at the Erik Castrén Institute, University of Helsinki (2022-2023). He worked as a research and teaching assistant at the Chair of International and European Law at the University of Fribourg (2020-2022) and as a student assistant at the Chair of Criminal Law and Criminology at the University of Fribourg (2017-2020). Leo holds an LL.M. from Yale University and an MLaw and BLaw from the University of Fribourg.
I would like to express my sincere thanks to Dr. Camilla Jacquemoud, Judith Gelblat, Prof. Odile Ammann, Dr. Stefan Schlegel, and Prof. Jacques Dubey for their suggestions, discussions, and careful proofreading.
Recommended further reading
Aubert Jean-François, Art. 164 Cst., in : Aubert Jean-François/Mahon Pascal (édit.), Petit commentaire de la Constitution fédérale suisse du 19 avril 1999, Zurich/Bâle/Genève 2003.
Auer Andreas, La notion de loi en droit cantonal : carrefour du fédéralisme et de la démJe remercie chaleureusement la Dr. Camilla Jacquemoud, Judith Gelblat, la Prof. Odile Ammann, le Dr. Stefan Schlegel et le Prof. Jacques Dubey pour les suggestions, discussions et relectures minutieuses.ocratie suisses, in : Auer Andreas/Kälin Walter (édit), La loi en droit public cantonal – Das Gesetz im Staatsrecht der Kantone, Chur 1991, 21-34.
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Materials
Conseil fédéral, Exposé des motifs, Berne 1995 et Avant-Projet.
Rapport de la commission d’experts instituée par les Commissions des institutions politiques des Chambres fédérales du 15 décembre 1995, La répartition des compétences entre l’Assemblée fédérale et le Conseil fédéral, FF 1996 II 413.
Conseil fédéral, Message relatif à une nouvelle constitution fédérale du 20 novembre 1996 et Projet de Constitution 1996, FF 1997 I 1.
Assemblée fédérale. Organisation, procédure, rapports avec le Conseil fédéral, Rapport complémentaire des Commissions des institutions politiques des Chambres fédérales relatif à la réforme de la constitution du 6 mars 1997, FF 1997 III 243.
Rapport complémentaire des Commission des institutions politiques des Chambres fédérales relatif à la réforme de la constitution. Organisation, procédure, rapports avec le Conseil fédéral, Avis du Conseil fédéral du 9 juin 1997, FF 1997 III 1312.
Projets des Commissions de la révision constitutionnelle des Chambres fédérales, Réforme de la Constitution fédérale, FF 1998 I 286.
Office fédéral de la justice, Guide de législation : Guide pour l’élaboration de la législation fédérale, 2019.