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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
SWISS 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. Background
1 Article 178 was adopted in its current form during the total revision of the Federal Constitution in 1999. From a formal point of view, it is a new feature, in that an entire constitutional provision is devoted to the federal administration for the first time.
2 In its first two paragraphs, Article 178 consolidates several scattered provisions of the 1874 Constitution (Article 102, item 12, Article 103, paragraph 1, Article 104 of the old Constitution) and, apart from a few more explicit and intelligible formulations, does not contain any new fundamental elements. Paragraph 1 now expressly mentions the executive power (first sentence) and the organizational power (second sentence) of the Federal Council and refers to a rational organization. Paragraph 2 essentially reproduces the principle of departmental division enshrined in Art. 177 para. 2 Cst. (itself derived from Art. 103 para. 1 of the old Constitution). The first two paragraphs of Art. 178 of the Constitution are thus fully in line with the objective of updating, clarifying and systematically organizing written and unwritten constitutional law that guided the revision of the 1874 Constitution. It is not surprising that they were accepted by both chambers without discussion during the parliamentary debates on constitutional revision.
3 On the other hand, paragraph 3 introduces for the first time into the constitutional text a general authorization to outsource administrative tasks and is, in this sense, an innovation. It gave rise to considerable discussion during the debates on the new Constitution, not because the principle of outsourcing was contested, but because the committees had proposed going further and granting the Federal Council more power and flexibility in this area (see footnote 96). The more modest version ultimately prevailed (see N. 44 below).
II. Background
A. The federal administration in the constitutional system
4 Within Title 5 on “Federal Authorities,” Art. 178 of the Constitution is part of Chapter 3 on “The Federal Council and the Federal Administration.” The mention of the federal administration in the title of the chapter is new and marks its connection to the executive branch. Within this chapter, Art. 178 of the Constitution provides the federal administration with a comprehensive and specific constitutional provision for the first time.
5 It is tempting to see this as recognition of the place that this organization now occupies within the modern state, or even the establishment of a “fourth branch of government.” However, this must be qualified. From a formal point of view, Article 178 of the Constitution is the only one of the fourteen articles in the chapter to deal with the federal administration, with the exception of a passing reference in Article 187(2) of the Constitution, all the others being devoted to the Federal Council. In substance, the federal administration exists in Article 178 of the Constitution only through the tasks assigned, on the one hand, to the Federal Council (administration management) and, on the other hand, to the legislature (supervision of outsourcing). The administration as such is not assigned any specific tasks or powers, and the legal status of its personnel is not specified. Article 178 of the Constitution is therefore far from establishing the federal administration as a state body. Rather, it must be noted that the central role played by the federal administration in the day-to-day functioning and stability of the state is not fully reflected in the Federal Constitution.
B. The concept of federal administration
6 Two dimensions are commonly attributed to the term “administration.” “Administration in the functional sense” refers to the performance of administrative tasks; this will be discussed below (N. 33 ff.). However, the three paragraphs of Article 178 of the Constitution—like other constitutional provisions—refer to “administration in the organic sense.” This refers to all those who perform these administrative tasks (also known as Verwaltungsträger). In order to comment on Art. 178 of the Constitution, it seems necessary to briefly describe the organization of the federal administration (1.) so as to understand which parts of it are referred to in the three paragraphs of Art. 178 of the Constitution (2.).
1. The organization of the administration
7 Over the past few decades, the federal administration, which used to be more compact and centralized, has changed into a multifaceted administration whose tasks are carried out by hundreds of entities with a wide variety of legal forms and degrees of autonomy. Admittedly, at the heart of this structure still lies the central federal administration, the traditional model of administrative organization, whose departments and subdivisions form a hierarchical, pyramid-shaped unit. It is also customary to include the armed forces and the Federal Chancellery, although this is not apparent from the structure of the Constitution.
8 Beyond this lies a variety of actors, all of which share the characteristic of not being subject to the hierarchical subordination of the central core. These entities generally take one of the following forms, listed here in order of proximity to the central core:
Administrative units without legal personality (e.g., the Federal Data Protection and Information Commissioner [FDPIC] or the Federal Audit Office [CDF]) and extra-parliamentary commissions (e.g., the Competition Commission [COMCO] or the Federal Electricity Commission [ElCom]), although some authors consider these units to belong to the central administration because they do not have separate legal personality;
Outsourced public-law entities controlled by the Confederation:
Autonomous public-law institutions with legal personality (e.g. Swissmedic, FINMA or the MNS);
Public-law foundations (e.g. Pro Helvetia or Swiss National Park);
Public corporations, in particular public limited companies (e.g. Swiss Post or Swiss Federal Railways) and public cooperatives (e.g. Swiss Hotel Credit Company), wholly or partly owned by the Confederation, or public corporations structured in a similar way to private associations (e.g. ISDH);
Outsourced private-law entities controlled by the Confederation:
Private-law foundations (e.g. the SNSF);
Private-law associations (e.g. SRG SSR);
Private-law limited companies (e.g. RUAG MRO Holding AG);
Private-law entities not controlled by the Confederation that are delegated administrative tasks, sometimes referred to as private entities proper.
9 Some authors consider that all of these entities together make up the decentralized federal administration (hereinafter: decentralized administration in the broad sense); this view corresponds to a two-tier division of the federal administration into central administration and decentralized administration. However, the Government and Administration Organization Act of March 21, 1997 (LOGA; RS 172.010) and its implementing ordinance of November 25, 1998 (OLOGA; RS 172.010.1) establish a three-part division, distinguishing between decentralized units administratively attached to the central administration (decentralized administration in the narrow sense) and organizations or persons outside the administration that perform administrative tasks (Art. 2 para. 4 LOGA; Art. 6 OLOGA). However, such a three-way division is not required by the Federal Constitution. It would certainly be tempting to interpret Art. 178 Cst. in light of these two normative acts, whose respective drafting procedures partially overlapped. Nevertheless, we do not consider it advisable to interpret the constitutional text solely in the light of the lower-ranking texts, namely the LOGA and OLOGA, which are easier to amend, particularly in line with developments in public management concepts; however, they may be taken into account from a historical and systematic perspective when interpreting the constitutional text.
2. The concept of “federal administration” as used in Art. 178 Cst.
10 On the basis of these general considerations, it is now necessary to determine, by interpretation, to which entities of the federal administration the constituent body wished to refer when drafting Art. 178 Cst. To this end, the three paragraphs will be dealt with separately, starting with the one that is most clearly worded, i.e. paragraph 2. A literal interpretation of this paragraph makes it possible to conclude that it is indeed the central federal administration, as defined above, that is divided into departments.
11 The exercise proves to be both more delicate and more far-reaching for paragraph 3, insofar as it requires a formal legal basis for the performance of administrative tasks by entities “outside the federal administration.” A literal interpretation does not yield a clear meaning, nor does one emerge from a reading of the other provisions of the Constitution that refer to “other bodies entrusted with federal tasks.” However, the historical interpretation of paragraph 3 is more clear-cut, as the Federal Council states specifically in its message that this paragraph is intended to remove tasks of the Confederation from the departmental services of the general administration, i.e. the central federal administration. The parliamentary debates confirm this view (N. 44) and also give an indication of the objective pursued by this paragraph, namely to give outsourcing greater parliamentary legitimacy (N. 43). A legal basis is therefore necessary whenever an administrative task is entrusted to an entity outside the central federal administration.
12 Finally, the meaning of the term “federal administration” contained in paragraph 1(1) cannot be derived from a simple reading of that paragraph or from consultation of the preparatory work. From a systematic point of view, it would seem consistent and intelligible to attribute the same meaning to the term in the three paragraphs of Article 178 of the Constitution, i.e. the central federal administration. However, the issue of interpretation remains limited, since other provisions of the Constitution make it clear that the Federal Council's power of direction is not limited to the central federal administration. Article 174 of the Constitution confers supreme executive power on the Federal Council, thereby placing it at the head of all bodies performing administrative tasks. Furthermore, Article 187 para. 1(a) of the Constitution entrusts the Federal Council with the supervision of “the federal administration and other bodies or persons entrusted with federal tasks,” supervision being one of the essential components of the Federal Council's power of direction (N. 16). It is therefore important to understand what the power of direction encompasses for each part of the federal administration, which will be detailed below (N. 16 ff.).
III. Commentary
A. Paragraph 1
13 Despite its laconic wording, Art. 178 para. 1 has real normative significance.
It confers on the Federal Council the power to direct the federal administration (1.) – which is also provided for in Art. 174 of the Constitution (N. 12) – and explicitly guides it in this task by entrusting it with the rational organization of the federal administration (2.) and assigning it responsibility for the proper performance of the latter's tasks (3.).
1. Management of the federal administration
14 As mentioned above (N. 12), a combined reading of Articles 174, 178 para. 1and 187 para. 1(a) of the Constitution indicates that the general power of management entrusted to the Federal Council applies both to the central administration and to the decentralized administration. Indeed, since the Federal Council is responsible for the federal administration before the Federal Assembly, it is necessary that it has the management and supervisory instruments enabling it to fully assume this responsibility. It also follows from the articles cited that this power of direction cannot be exercised with the same intensity in relation to all entities of the administration, if only because the Constitution uses the term “supervision” in relation to bodies and entities outside the central administration. That said, the Constitution does not provide any further details on the concept of management or on the specific instruments for implementing it.
15 The term “manage” is semantically associated with “guide, lead or direct.” It symbolizes the action of a certain driving force in a given direction. The Federal Council is therefore constitutionally responsible for directing the federal administration in the performance of its tasks. It follows that it does not, in principle, perform these tasks itself, but rather lays down the broad guidelines for their implementation. This creates a division between strategic aspects – which are the responsibility of the Federal Council and often overlap with the most political or politicized issues – and operational aspects, which are entrusted to the administration. However, the boundary between politics and administration is often blurred, as the way in which the administration performs its tasks tends to feed back “upwards” and influence the (strategic) decisions taken by the government. The power of direction provided for in Article 178(1) of the Constitution also includes the power to organize the administration and to supervise it a posteriori. These two elements are explicitly mentioned in the second sentence of this paragraph: the Federal Council is responsible for ensuring the rational organization of the administration and for supervising the proper execution of the tasks entrusted to it; This will be discussed in more detail below in N. 19 ff and N. 22 ff.
16 The precise form of management in the broad sense and the instruments used for this purpose vary according to the degree of autonomy of the entity responsible for performing the task. Within the central administration (N. 7), the Federal Council's management authority is part of the hierarchical structure, which is generally represented as a pyramid with several levels. This structure assumes that each unit belongs to a specific level and is subordinate to the unit immediately above it. It is characterized by a division of labor and a succession of delegations of files and means of action along the levels according to their degree of importance. This hierarchical framework provides the Federal Council with specific powers and means of direction, generally grouped under the term hierarchical power. Hierarchical power includes the following powers, which may be limited by other constitutional articles or special legislation:
The power to issue instructions to lower levels in the performance of their tasks, in particular by means of administrative orders of various kinds – general instructions, directives, circulars, communications, service orders, etc. These orders have no direct legal effect on citizens and are intended exclusively for departments, their subdivisions and their officials, for whom they are binding by virtue of the hierarchical relationship. Administrative orders may contain general objectives and principles as well as specific instructions for handling cases.
The power of control or supervision, which enables the Federal Council not only to ensure that the law is properly applied (legality control) and that its instructions are carried out (appropriateness control), but also to monitor, as an extension of its task of providing guidance and strategic direction, the effectiveness and usefulness of administrative action as a whole.
The power of revocation allows the Federal Council, in principle, to replace any administrative unit to which a matter has been entrusted in order to exercise its decision-making functions in its place. However, this power is limited in certain cases, in particular if revocation would deprive citizens of the right of appeal to an independent body. The power of revocation allows the Federal Council to invalidate any act of the federal administration.
17 On the other hand, the Federal Council's power of direction is less incisive towards decentralized administrative entities, which have greater autonomy and are not subject to hierarchical authority. The Federal Council may therefore use ex ante steering instruments (e.g. power to approve statutes, regulations or other specific acts or decisions, setting strategic objectives, particularly in a service contract) or ex post supervisory instruments and means (e.g. through the obligation to provide information, approval of activity reports, accounts, discharge of bodies, the right of representation within the bodies of the decentralized entity, or the establishment of effective legal protection against decisions of the decentralized entity), but generally does not have the power to issue specific instructions to decentralized entities. It should be noted that some of the management and supervisory measures used in relation to decentralized administration have also been introduced in central government in the name of New Public Management (e.g., management by budget or by objectives).
18 It should also be noted that Article 169(1) of the Constitution confers on the Federal Assembly the power of “high supervision of the Federal Council and the federal administration.” Unlike the supervisory power of the Federal Council, this high supervision is not a means of managing the administration and is therefore not equivalent to the power of direction under Article 178(1) of the Constitution. It simply gives substance to the political responsibility of the Federal Council. In practice, parliamentary control is directed only at the Federal Council as the supreme executive body.
2. Rational organization of the federal administration
19 The first key element of the power of direction expressly mentioned in Article 178(1) sentence 2 of the Constitution is the task of ensuring the rational organization of the federal administration. However, this power is strictly limited.
20 On the one hand, the Federal Council is bound by the organizational requirements expressly laid down in the Constitution, namely the division into departments (Art. 178 para. 2 of the Constitution; see N. 25 ff below) and the requirement for a formal legal basis for the outsourcing of administrative tasks (Art. 178 para. 3 of the Constitution; see N. 29 ff below). On the other hand, the legislature has the power to enact fundamental provisions on the organization of federal authorities (Art. 164 para. 1 lit. g Cst.). Since the constituent assembly did not specify further what constitutes fundamental provisions, in practice only those powers remain within the competence of the Federal Council that the legislature has seen fit to leave to it. It should be noted that, although not required by the Constitution, the legislation currently in force grants the Federal Council the power to create offices, assign them tasks and powers, and distribute them among the departments according to criteria determined by the legislature (Art. 43 para. 2 and 3 LOGA). The power to structure the offices, on the other hand, is entrusted to the lower level, i.e. to the heads of departments (Art. 43 para. 4 LOGA).
21 The constituent also specifies that the organization established by the Federal Council must be rational (“zweckmässig”; “appropriata”). The preparatory work does not provide any clarification on these terms. According to various French, German, and Italian dictionaries, the terms used in the three language versions refer to what appears logical, appropriate to the circumstances, suitable, reasonable, in accordance with common sense, adequate, and based on a sound method. When determining the organization of the administration, the Federal Council will therefore endeavor to choose the organizational model that enables the administration to best achieve its objectives, or in other words, the most efficient organization.
3. Proper execution of federal administrative tasks
22 The second task explicitly mentioned in Art. 178 para. 1, second sentence, is closely linked to rational organization: the Federal Council shall ensure that the tasks of the administration are performed properly (see N. 33 for the concept of administrative tasks). The instruments at its disposal for this purpose, which relate in particular to supervision, have already been mentioned above (N. 16 and 17). it is necessary to consider how the tasks of the administration are to be performed. As the three language versions differ considerably (“bonne exécution,” “zielgerichtete Erfüllung,” “corretto adempimento”), it is necessary to find a meaning for the constitutional provision that satisfies all of them.
23 In our view, the Italian version requires the Federal Council to ensure that the administration performs its tasks in accordance with the principle of legality and other traditional principles of the rule of law. The German term, on the other hand, indicates that the tasks of the administration must be performed with a primary focus on the objectives set; thus introducing a dimension of efficiency. Finally, the term used in the French version refers, in our opinion, to the concept of “good administration”, which is familiar in several foreign legal systems and in the legal system of the European Union, and which aims to reconcile the requirements of legality and efficiency in state activity. The English version thus synthesizes the Italian and German versions and can serve as the basis for a genuine principle of good administration. It can be concluded that the tasks of the administration must be carried out in accordance with both the principle of legality and that of efficiency, without neglecting the former in favor of the latter. The Federal Council's message confirms this interpretation, while adding the term “cost-effectiveness,” which does not, however, derive from the constitutional text and should not, in our opinion, constitute a requirement for the performance of administrative tasks.
B. Paragraph 2
24 Article 178(2) of the Constitution states, on the one hand, that the federal administration is divided into departments and, on the other hand, that each department is headed by a member of the Federal Council. It thus echoes Art. 177 para. 2 of the Constitution, and one cannot help but notice a certain redundancy between these two articles.
25 However, Art. 178 para. 2 of the Constitution has the merit of highlighting the tension that exists between the principle of collegiality on the one hand and the departmental principle on the other: each member of the Federal Council is both a member of the government and head of their own department. They are therefore responsible for defending proposals from their department individually before the government and for expressing their opinion on these proposals as a member of the Federal Council. In practice, there is a risk that each member of the government will tacitly recognize the freedom of action of the others in order to preserve their own, so that a certain de facto primacy of departmentalization over collegiality emerges. This tendency is also reflected in the distribution of political responsibilities: although the Federal Council is accountable as a collegiate body to the Federal Assembly (Art. 169 para. 1 and Art. 187 para. 1 let. b Cst.), it is often its members who publicly and individually bear responsibility for the failures and shortcomings of their respective departments. Nevertheless, the interaction between these two principles ensures a certain balance.
26 More specifically, the power to create these departments is a fundamental provision relating to the organization of the federal administration and therefore lies with the Federal Assembly (Art. 164 para. 1 letter g of the Constitution). Insofar as the Constitution sets the number of members of the Federal Council at seven (Art. 175 para. 1of the Constitution) and each of them heads a department, the constituent formally imposes a minimum number of seven departments. There is no need to debate whether the Constitution allows for an increase in the number of departments, since their underlying structure is flexible: the Federal Council is free to allocate tasks and powers by creating and distributing offices among the departments, while ensuring their material and political balance (Art. 43 para. 3 LOGA). However, this numerical stability results in disparate activities being grouped together in the same federal department, which in neighboring countries would normally be divided among several ministries. For example, the Federal Department of Home Affairs (DFI) is responsible for culture, public health, statistics, food safety, and social insurance.
27 It should also be noted that the Constitution is silent on the specific allocation of departments among the members of the Federal Council. It is customary for the Council to decide on this matter, with each member expressing their preferences in order of seniority.
28 Finally, Article 178(2) of the Constitution does not mention what the management of a department entails. Reference should be made here to the above comments on the Federal Council's power of direction over the central federal administration (N. 14 ff.): Similarly, and since the principle of hierarchical subordination permeates the entire central federal administration, members of the Federal Council shall direct their departments by means of powers of guidance, instruction, supervision and, where appropriate, referral and dismissal. It should be noted, however, that this management is carried out within the framework laid down by the higher authority, i.e. the Federal Council, which manages the federal administration as a whole (N. 14 ff).
C. Paragraph 3
29 Paragraph 3 of Art. provides for the conditions under which the central administration may refrain from performing the tasks entrusted to it and delegate them either to entities controlled by the Confederation, i.e. to the decentralized administration in the narrow sense (decentralization of task execution, Ausgliederung), or to private individuals (privatization of task execution or functional privatization of tasks; Auslagerung; Beleihung). However, Art. 178 para. 3 of the Constitution does not deal with the privatization of the task itself, i.e., the abandonment of administrative tasks.
30 In the following, after a brief introduction to the topic (1.), the task of the administration will be defined (2.), possible recipients will be identified (3.), and the conditions for outsourcing will be discussed (4.).
1. The objectives of decentralization in the broad sense and efforts at systematization
31 Over the last few decades, the federal administration has undergone a relatively significant process of decentralization and functional privatization, particularly in the name of New Public Management (see footnote 39). While this transformation began before the adoption of the Federal Constitution of 1999, the Constitution provides no information on the extent of the change, nor on the reasons that would require or at least justify it, nor on the possible legal forms of the decentralized entities. However, there are many objectives generally cited for outsourcing administrative tasks: efficiency, competitiveness, bringing the administration closer to the people it serves, cooperation between the state, the private sector, and citizens, flexibility, and responsiveness. Now that the New Public Management movement has passed its zenith, scholars are beginning to doubt that outsourcing administrative tasks can deliver on all these promises. A recent report on the unsuitability of the private limited company form for RUAG MRO Holding SA may be a sign of a trend toward re-internalization.
32 As for the choice of the legal and organizational form of a decentralized entity, at the turn of the 20th century, the Federal Council, again influenced by New Public Management, referred to the so-called four-circle model. This model—which is “purely descriptive”—divides the various forms of decentralization into four circles according to their level of autonomy. In its 2006 report on corporate governance and its 2009 supplement, the Federal Council refined this model by proposing a typology of state tasks that was intended to provide greater guidance and rationalize decentralization. However, these efforts to systematize the process did not produce the desired results. No remedy has yet been found for the “growing dissatisfaction” with the lack of uniform criteria for decentralization. On the contrary, it is clear that the choice of organizational or legal form is still often based on ideological or psychological criteria, or on current trends in administrative science. Particularly in the name of greater flexibility, management autonomy, depoliticization of task execution, or “better market orientation,” there is still a preference for private law forms, even though public law forms are capable of achieving the same objectives. There is therefore currently no general theoretical framework or system for decentralization in Switzerland.
2. The task of the administration: the object of outsourcing
33 In the absence of a constitutional definition of the tasks of the administration, which are the object of outsourcing under Article 178(3) of the Constitution, they should be defined as all tasks entrusted to the state by the Constitution or by law that are not assigned to the legislative or judicial branch. It is by interpreting the law that one can deduce that a certain task constitutes a task of the administration. The creation or existence of such a task also implies, for the administration, the obligation and responsibility to carry it out itself or to delegate its execution.
34 The tasks of the administration can be summarized as traditional executive activity, i.e., the application of rules of law to specific situations. However, they may also include normative activities, which raises the question of whether the latter can be outsourced. The answer is a priori positive: neither Art. 178 para. 3 of the Constitution nor other provisions of the Constitution, in particular Art. 164 para. 2 of the Constitution, exclude the outsourcing of normative activities. However, case law and doctrine only allow this for secondary norms, i.e., provisions of minor importance that could be included in an implementing ordinance.
35 For the classification as an administrative task, it is irrelevant how, i.e. by what means and instruments of public action, the task is or will be performed. Nor is it important to know the type of task or to classify it in one of the categories defined in the Report on Corporate Governance (see N. 32). The more specific nature of the task may, however, influence the choice of supervisory measures to be put in place, particularly in the case of tasks of an economic nature.
36 This inevitably raises the question of whether certain tasks, although “administrative,” are excluded from outsourcing, in particular from delegation to private entities proper. While the Constitution itself does not set any express material limits on the outsourcing of administrative tasks, legal doctrine seems fairly unanimous in favor of the existence of tasks that are so intrinsically linked to the State—in particular those related to the monopoly of legitimate force—that they cannot be delegated, although there is no consensus on which specific tasks cannot be delegated. However, this theory is often not followed in practice, which appears to be more liberal with regard to tasks that can be outsourced. For example, the power to impose fines, air traffic control and the task of accommodating asylum seekers have been outsourced.
37 It should also be noted that, in addition to the concept of administrative tasks, the Federal Constitution refers in other places to “state tasks” (Art. 5a, 43a Cst.), “tasks of the state” (Art. 6, 35 para. 2, 43a para. 5 Cst.) and “tasks of the Confederation” (Art. 187 I a Cst.). Federal legislation contains other terminological variations, such as “administrative task,” “public task,” and “public law task.” Having defined above the concept of administrative task contained in Art. 178 para. 3 of the Constitution, it is not necessary here to examine in detail the relationships and overlaps between the various terms. It suffices to clarify the links between Art. 178 para. 3 and Articles 35 para. 2 and 187 para. 1(a) of the Constitution. Thus, the concept of “administrative task,” if not understood as a synonym, is at least part of the concept of “state task” used in Article 35 para. 2 of the Constitution: indeed, it is undisputed that any decentralized entity and any person delegated a public task is required to respect fundamental rights and contribute to their realization (see below N .47). Similarly, the Federal Council is undoubtedly empowered under Art. 187 para. 1 lit. a Cst. to supervise the bodies and persons entrusted with administrative tasks, even though this article refers to tasks of the Confederation.
38 Finally, the task of the administration must be distinguished from other, partly related concepts. Firstly, when the state chooses to acquire goods or services (e.g., computer equipment, cleaning services, or legal services), the production of the goods or the provision of the services by the contractor constitutes auxiliary administrative activities (Hilfstätigkeit, Bedarfsverwaltung) and not administrative tasks. Although more or less intelligible in theory, the distinction between administrative tasks and auxiliary administrative activities is not so clear in practice. Secondly, the outsourcing of monopolized activities is generally done through concessions. The activities thus concessioned may, but do not necessarily, constitute public tasks. In the former case, the doctrine refers to public service concessions; the conditions for outsourcing administrative tasks then apply in full. Finally, the granting of a subsidy to a private individual for the performance of a certain task does not in itself provide any information about the nature of that task: it may be an administrative task delegated to the private sector, but it may just as well be a task in the public interest where the state's involvement is limited to granting the subsidy.
3. Recipients of outsourced administrative tasks
39 Article 178(3) of the Constitution deals with the outsourcing of tasks to bodies or persons that are “external to the federal administration.” This wording is unfortunate: as soon as they perform administrative tasks, all bodies or persons, whether governed by public or private law, under state control or not, are “holders of administrative power” i.e. Verwaltungsträger (see above N. 6) and are therefore part of the decentralized administration in the broad sense. For the sake of clarity, it should therefore have been specified that the bodies and persons referred to in Art. 178 para. 3 of the Constitution are external to the central federal administration (see above N. 11).
40 As mentioned above, among the recipients of outsourced administrative tasks, a distinction is generally made between entities controlled by the Confederation (decentralized administration in the narrow sense) and private entities proper. With regard to the former, it should be noted that the Constitution does not expressly provide for the possibility of creating such entities; but their existence is implicitly provided for in several places in the Constitution, including in particular in Art. 178 para. 3 Cst. Furthermore, there is no doubt that the creation of decentralized entities is subject to the same legal requirement as the outsourcing of administrative tasks to them. It is also entirely conceivable that an administrative task may be created by the same legislation that establishes the decentralized entity and transfers the task to it; Art. 178 para. 3 of the Constitution therefore does not require that an administrative task be performed by the central administration before being transferred. Finally, for the forms of decentralized entities, we refer to N. 8 ff above.
41 When the entity is not controlled by the state, we speak of a delegation of administrative tasks to private entities proper (Auslagerung; Beleihung). The initial question is not the same here: private delegates generally exist prior to the delegation of tasks. However, this form of outsourcing raises other questions, in particular those already addressed concerning the performance of tasks intrinsically linked to the State or normative tasks (N. 34 and N. 36). In principle, any natural or legal person may be delegated administrative tasks. However, it is generally legal persons (all types of companies, associations or foundations under private law) that are entrusted with such tasks, if only because the relevant legislation requires it.
4. Conditions for outsourcing administrative tasks
a. Formal legal basis
42 Art. 178 para. 3 of the Constitution stipulates that any outsourcing must be provided for by “law.” The requirement for a legal basis applies regardless of the legal form of the entity to which the task is outsourced and whether or not it is controlled by the Confederation. Beyond the constitutional text, the requirement for a legal basis reflects, according to the Federal Court, “a general principle of public law” that applies throughout the Swiss legal system.
43 The outsourcing of administrative tasks must be based, at the very least, on a law in the formal sense, i.e., a federal law or a constitutional provision. The constituent assembly thus intended that any outsourcing be discussed and approved by the Federal Assembly and subject to an optional or even mandatory referendum. This strict requirement for a formal legal basis is justified by the fact that, in the event of outsourcing, both the Federal Assembly and the Federal Council lose some of their powers of control: the former is limited in its power to supervise the government, and the latter loses its hierarchical power over the entity to which the task is delegated. The people, for their part, retain the possibility of opposing externalization through a referendum. The requirement for a formal legal basis thus ensures strong democratic legitimacy for any externalization of administrative tasks.
44 During the preparatory work on the new Constitution, a relaxation of the basic legal requirement was discussed. Specifically, the political institutions committees of both chambers proposed a version of Art. 178 para. 3 of the Constitution – previously suggested in the “Müller” expert report – which provided for the adoption by the Federal Assembly of a framework law allowing the Federal Council to outsource administrative tasks itself by means of an ordinance. However, this proposal was not accepted during the debates, and the original version, that of the Federal Council, was incorporated into the current Constitution. Although the theories of New Public Management were at the height of their popularity at the time, they did not find their way into Art. 178 para. 3 of the Constitution.
45 According to case law and doctrine, the legal basis must be sufficiently precise and specific, i.e. it must refer to a specific area of law. It follows without further ado from the constitutional text that the legal basis must contain, as a minimum, the principle of outsourcing itself – which often consists of an authorization, a Kann-Bestimmung, rather than an obligation to outsource – as well as the task of the administration that is the subject of the outsourcing. With regard to the task to be outsourced, the principle of legality and the principle of specificity, which derives from it, require that it be sufficiently described and delimited. This is to prevent a body outside the central administration from acquiring too many responsibilities and becoming a truly autonomous center of power. Beyond this minimum content, the normative density required by the Constitution for the relevant legal basis depends on the type of task to be outsourced. In general, the requirements will be higher if the task involves public powers or affects fundamental rights or the rights and obligations of citizens. Thus, the requirements for a legal basis are particularly high in the case of the delegation of police tasks. Similarly, where the recipient must be empowered to take administrative decisions—a privilege of public authority—the legal basis must in principle provide for this explicitly; according to case law, however, such power may exceptionally be inferred by interpretation of the text. In our opinion, however, such a deduction by interpretation should only be admissible within extremely narrow limits in order to guarantee legal certainty. Beyond these genuine constitutional requirements, it would be desirable for the legal basis to contain any other elements that the legislature deems necessary in the specific case, such as principles or implementing provisions. Secondly, the recipient may be specified directly in the legal basis: this will often be the case when outsourcing is to decentralized entities under the control of the Confederation, which may themselves have been created by the same legislative text. When the task of the administration is delegated to a private individual, the (formal) law will often only contain the possibility of delegating the task to a third party. Once the private individual has been selected, their identity will be recorded in an administrative decision or contract. Finally, the requirement for a formal legal basis does not preclude the legislature from delegating to the executive power, in accordance with Art. 164 para. 2 of the Constitution, the power to enact rules of law to specify the modalities of outsourcing, in particular the tasks to be outsourced.
46 If the formal law does not contain sufficient elements for the outsourcing of administrative tasks, in particular regarding the manner in which the task is to be performed, it is generally supplemented by an administrative decision, a concession or a contract; the latter will often be referred to as a mandate or service contract.
b. Other conditions
47 While Art. 178 para. 3 of the Constitution provides that a formal legal basis is the only condition for outsourcing administrative tasks, other conditions arise from the constitutional text.
Thus, outsourcing must be justified by a public interest (Art. 5 para. 2 Cst.), a condition that can lead to conflicts of interest, particularly if the recipient is a commercial company that (also) pursues a profit-making objective.
It must be proportionate to the objective pursued (Art. 5 para. 2 Cst.). This means, in particular, that the recipient chosen must be able to perform the administrative tasks for the entire period required.
The recipient of the outsourcing must be chosen in accordance with the principle of state neutrality in competition (Art. 94 of the Constitution) and the principle of equal treatment of competitors (Art. 27 of the Constitution).
When outsourcing administrative tasks, the centralized administration must ensure that fundamental rights (Art. 35 para. 2 of the Constitution), including general procedural rights (Art. 29 of the Constitution) and access to a judicial authority (Art. 29a of the Constitution), are guaranteed when the tasks are performed by the recipient.
Finally, when administrative tasks are outsourced, they are performed by entities that are not subject to hierarchical authority. Adequate supervision of the recipients and the manner in which they perform the tasks (Art. 187 para. 1(a) of the Constitution) must therefore be guaranteed.
About the authors
Dominique Hänni is an associate professor of administrative law at the Swiss Graduate School of Public Administration (IDHEAP) at the University of Lausanne and a clerk at the First Public Law Division of the Federal Supreme Court (dominique.haenni@unil.ch).
Marine Albertini is a lawyer and doctoral assistant at the Swiss Graduate School of Public Administration (IDHEAP) at the University of Lausanne (marine.albertini@unil.ch).
Recommended further reading
Biaggini Giovanni, Commentaire de l’art. 178 Cst., in : Ehrenzeller Bernhard et al. (édit.), Schweizerische Bundesverfassung, St. Galler Kommentar, 4e éd., Zürich 2023 (SGK-Biaggini, Art. 178 Cst.).
Elser Dominik, Die privatisierte Erfüllung staatlicher Aufgaben, Thèse, Zürich 2020.
Favre Anne-Christine, La délégation d’activités non économiques ou « à caractère ministériel », in : Favre Anne-Christine/Martenet Vincent/Poltier Etienne (édit.), La délégation d’activités étatiques au secteur privé, Genève/Zurich/Bâle 2016, pp. 145-192.
Moor Pierre/Bellanger François/Tanquerel Thierry, Droit administratif, Vol. III : L’organisation des activités administratives. Les biens de l’État, 2e éd., Berne 2018.
Müller Markus, Commentaire de l’art. 178 Cst., in : Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (édit.), Basler Kommentar, Bundesverfassung, Bâle 2015 (BSK-Müller, Art. 178 Cst.).
Poltier Etienne, Commentaire de l’art. 178 Cst., in : Martenet Vincent/ Dubey Jacques (édit.), Commentaire romand de la Constitution fédérale, Bâle 2021 (CR-Poltier, Art. 178 Cst.).
Tschannen Pierre, Zentral, dezentral, ausserhalb – oder: Wie zeichne ich das Organigramm der Bundesverwaltung ?, in : Rüssli Markus/Hänni Julia/Häggi-Furrer Reto (édit.), Festschrift für Tobias Jaag, Zürich 2012, pp. 517-531 (Tschannen, Zentral).
Tschannen Pierre, Hoheitliches Handeln von Privaten, in : Boillet Véronique / Favre Anne-Christine / Martenet Vincent (édit.), Mélanges en l’honneur du Professeur Etienne Poltier, Genève/Bâle/Zurich 2020, pp. 781-798 (Tschannen, Hoheitlich).
Tschannen Pierre/Müller Markus/Kern Markus, Allgemeines Verwaltungsrecht, 5e éd., Berne 2022.
Vogel Stefan, Einheit der Verwaltung – Verwaltungseinheiten, Zürich 2008.
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