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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. Genesis
1 The powers of the Federal Supreme Court were already listed in the Federal Constitution of 1848 (Art. 101 to 105 aCst.), then in that of 1874 (Art. 110 to 114bis aCst.) . As part of the total revision of the Federal Constitution in the 1990s, the Federal Council successively presented several drafts, designated by the letters A, B, and C. This method was intended to allow progress to be made in stages: draft A consisted of an update to the Constitution, draft B addressed certain institutional reforms, in particular popular rights, and draft C aimed at reforming the justice system. The draft A federal decree provided for three provisions relating to the powers of the Federal Court (Articles 177 to 179 of the draft): Art. 177 concerned constitutional jurisdiction, Art. 178 concerned civil, criminal and administrative jurisdiction, and Art. 179 concerned federal assizes. However, only the first two were incorporated into the 1999 Constitution, as Art. 179 was considered to fall within the scope of ordinary legislation. The text of the new Constitution, adopted by the Federal Assembly on the basis of draft A, was accepted in a popular vote on April 18, 1999, and entered into force on January 1, 2000. At this stage, the powers of the Federal Court remained divided between two provisions: they were set out in Art. 189 aCst. (“Constitutional jurisdiction”) and Art. 190 aCst. (“Civil, criminal and administrative jurisdiction”).
2 However, the update made by the 1999 Constitution was only a transitional step. It was in the context of draft C of the federal decree on the reform of the judiciary that the Federal Council proposed to consolidate the powers of the Federal Supreme Court into a single provision (Art. 177 of the draft), which listed the grounds for appeal without distinguishing between the different areas of law. The Federal Assembly adopted this provision, but introduced two amendments. The first, of a editorial nature, consisted of replacing the reference to “guarantees granted by the cantons to the communes” (Art. 177 para. 1 let. e of the draft) with an explicit reference to "the autonomy of the communes “ (Art. 189 para. 1 let. e Cst.). The second, more substantial change concerned Art. 177 para. 4 of the draft: to the rule that ”[a]cts of the Federal Assembly and the Federal Council may not be brought before the Federal Supreme Court," the Federal Chambers added a second sentence specifying that “[e]xceptions are determined by law” (Art. 189 para. 4 Cst.). In its amended form, Art. 189 Cst. was accepted in a popular vote on March 12, 2000, and entered into force on January 1, 2007.
3 The evolution of Art. 189 Cst. was then marked by an aborted revision linked to the introduction of the general popular initiative into the Constitution. On February 9, 2003, the people and the cantons accepted the federal decree on the revision of popular rights. This introduced a new instrument into the Constitution, the general popular initiative (Art. 139a of the Constitution), which would have allowed 100,000 citizens with voting rights to propose a project drafted in general terms and aimed at constitutional or legislative change. According to Art. 189 para. 1bis of the Constitution, in the version resulting from this revision, complaints regarding non-compliance with the content and objectives of a general popular initiative by the Federal Assembly could have been brought before the Federal Supreme Court. However, on September 27, 2009, the people and the cantons accepted a new federal decree abolishing the general popular initiative, which was considered too complex to implement. These provisions therefore never came into force.
II. Context
4 Art. 189 of the Constitution is found in Chapter 4 (“Federal Court and Other Judicial Authorities”) of Title 5 (“Federal Authorities”) of the Federal Constitution, which contains seven provisions (Art. 188 to 191c of the Constitution). Entitled “Jurisdiction of the Federal Court” (“Zuständigkeiten des Bundesgerichts,” “Competenze del Tribunale federale”), it defines the jurisdictional powers of this authority. Its location, immediately after Art. 188 Cst., which establishes the Federal Court as “the supreme judicial authority of the Confederation” (para. 1), highlights the particular importance that the framers of the Constitution wished to confer on it.
5 Before examining the powers of the Federal Court in detail, it should be noted that these are limited by three important restrictions, two of which derive from provisions other than Art. 189 of the Constitution:
on the one hand, acts of the Federal Assembly and the Federal Council cannot be brought before the Federal Court (Art. 189 para. 4 of the Constitution) (see N. 78 ff. infra);
secondly, the Federal Court and other authorities are required to apply federal laws and international law (Art. 190 Cst.) (see N. 79 ff. infra);
finally, although access to the Federal Supreme Court is guaranteed by the Federal Constitution, it may be restricted by the legislature (Art. 191 Cst.) through the introduction of a minimum value in dispute, the exclusion of certain specific areas, or the establishment of a simplified procedure for manifestly unfounded appeals.
6 It should also be noted that, with the exception of Art. 189 para. 4, first sentence, Cst., this provision is primarily addressed to the federal legislature, which must ensure its implementation. Thus, procedural issues—such as minimum amounts in dispute, previous authorities, standing to appeal, the form and content of briefs, and time limits for appeals – have been regulated in the LTF.
III. Commentary
7 The powers of the Federal Court are defined in positive terms (paras. 1 and 2: the Federal Court “hears disputes”; see N. 12 ff. and N. 55 ff. infra), by a delegation rule (para. 3: “the law may confer other powers on it”; see N. 73 ff. infra), and negatively (para. 4: certain acts “may not be brought” before it; see N. 78 ff. infra).
8 Paragraph 1 lists the grounds for appeal allowing “disputes” (“Streitigkeiten,” “controversy”) to be brought before the Federal Court. These concern violations of federal law, international law, intercantonal law, cantonal constitutional rights, municipal autonomy, and political rights (see N. 17 ff. infra). These grounds are included in the LTF, some in a different order (Art. 95 LTF), while violations of municipal autonomy are relegated to the provision on standing to appeal (Art. 89 para. 2(c) LTF).
9 Paragraph 2 specifies that the Federal Supreme Court has jurisdiction over disputes between the Confederation and the cantons or between the cantons (see N. 55 ff. infra). This provision is specified in Art. 120 LTF, which provides that the Federal Supreme Court shall hear these disputes “by way of a single proceeding” (para. 1(a) and (b) LTF), unless another federal law empowers an authority to rule on such disputes (para. 2).
10 The list of powers of the Federal Supreme Court set out in paragraphs 1 and 2 is not exhaustive; paragraph 3 allows the legislature to confer other powers on it (see N. 73 ff. infra).
11 Finally, paragraph 4 limits the possibility of challenging acts of the Federal Assembly and the Federal Council before the Federal Supreme Court (see N. 78 ff. infra).
A. Jurisdiction and powers of the Federal Supreme Court (para. 1)
1. General
12 Before examining in detail the grounds for appeal that may be brought before the Federal Supreme Court, four preliminary general remarks should be made.
13 The introductory sentence of paragraph 1 specifies that the Federal Supreme Court has jurisdiction to rule on "disputes ." These disputes are of a legal nature, even if the law does not expressly state this. This has three consequences. First, the Federal Court does not have jurisdiction to examine abstract or theoretical questions (see N. 77 infra): the dispute must be a concrete one between two or more parties. In its primary sense, the term “dispute” is defined as a “dispute giving rise to litigation or arbitration.” Second, the Federal Court does not intervene ex officio, as would a supervisory authority for lawyers becoming aware of facts that could constitute a breach of professional rules, but only at the request of one of the parties to the dispute. Thirdly, in the absence of a legal basis, the Federal Court does not have jurisdiction to conduct a conciliation hearing, in the sense of a formal procedure conducted by the judge with a view to actively bringing the parties together. While amicable settlements may be reached between the parties during the proceedings, these do not constitute judicial conciliation per se.
14 As the Supreme Court, the Federal Court is the judge of law, as confirmed in paragraph 1. On the other hand, complaints relating to facts are, in principle, not admissible before it. It rules on the basis of the facts established by the previous authority (Art. 105 para. 1 LTF), subject to the cases provided for in Art. 105 para. 2 LTF. The appellant may only criticize the findings of fact in the contested decision if they were made in violation of the law within the meaning of Art. 95 LTF (see N. 8 supra) or in a manifestly inaccurate manner, i.e. arbitrarily, and if the correction of the defect is likely to influence the outcome of the case (Art. 97 para. 1 LTF). The appellant must explain in detail to what extent these conditions are met. Otherwise, it is not possible for the Federal Supreme Court to take into account facts that differ from those contained in the contested decision. There is another exception to the inadmissibility of factual complaints, namely when the decision under appeal concerns the granting or refusal of cash benefits from accident insurance or military insurance; in such cases, the Federal Court is not bound by the facts established by the previous authority (Art. 97 para. 2 and 105 para. 3 LTF). Nor does the Federal Court's power of review extend, in principle, to the appropriateness of the decision brought before it. The message relating to the new Federal Constitution is clear on this point. It first states that “with a few exceptions, any dispute may in future only be referred to the supreme court after having been submitted to a lower judicial authority,” and then adds that this is “the condition for the Federal Court to be able to limit itself to reviewing the law, without further dealing with questions of fact and assessment, the review of which requires a great deal of time.” An examination of the administrative procedure provisions applicable to the Federal Administrative Court (FAC) and the cantonal courts illustrates the difference between the jurisdiction of the aforementioned authorities and that of the Federal Court. In addition to violations of the law, including the excessive or abusive exercise of discretionary power, appellants may in principle invoke two other grounds before the FAC and the cantonal courts: inaccurate or incomplete findings of fact, and impropriety (among others: Art. 49 PA; Art. 76 LPA/VD; Art. 80 LPJA/BE; Art. 122 LPJA/JU). Such an appeal, which allows these three categories of grievances to be invoked, is sometimes referred to as a “complete legal remedy.”
15 The Federal Court has a dual role: that of guardian of federal law, on the one hand, and that of guardian of the Federal Constitution and the cantonal constitutions, on the other. Thus, subject to the cases referred to in Art. 189 para. 1 let. c, d, e, and f of the Constitution, its review does not extend to cantonal or municipal law as such. However, as the Federal Supreme Court often points out, the incorrect application of cantonal or municipal law may constitute a violation of federal law, particularly when it is arbitrary within the meaning of Art. 9 of the Constitution or contrary to other constitutional rights. Violation of cantonal legal provisions may also constitute a violation of international law within the meaning of Art. 189 para. 1 let. b Cst. . Furthermore, it should be added that when the Federal Supreme Court examines cantonal law independently of any infringement of a fundamental right, it does not review the principle of proportionality freely, but only from the perspective of arbitrariness. With regard to the review of cantonal law from the perspective of arbitrariness, the chances of success of such a complaint remain “very limited.” As François Chaix points out, “it is one of the consequences of federalism [that] it does not intervene too incisively in the areas of competence of the cantons.”
16 Paragraph 1 does not impose a specific system of appeal on the federal legislature. It should be noted, however, that the revision of the federal judicial system has simplified the work of litigants by replacing the multiple avenues of appeal that existed with a unified appeal in each area of law: an appeal in civil matters, an appeal in criminal matters, and an appeal in public law matters. According to this concept, " there must be only one legal remedy before the Federal Court to challenge an act of a lower authority, regardless of the grounds for appeal or the nature of the authority."
2. Federal law (let. a)
17 The Federal Court has primary jurisdiction to rule on disputes relating to violations of federal law (Art. 189 para. 1 let. a Cst.; see also Art. 95 let. a LTF). According to the Federal Council's message on a new Federal Constitution of November 20, 1996, the term “federal law” must be understood in a broad sense. It includes all rules of law enacted by the organs of the Confederation at all levels, in particular the Federal Constitution, federal laws, and various types of ordinances (of the Federal Assembly, the Federal Council, the federal administration, and the federal courts) in all areas of law (civil law, criminal law, administrative law, debt collection law, and social insurance law, in particular).
18 The concept of federal law encompasses federal constitutional rights, which is not explicitly stated in the text of the Constitution, since only cantonal constitutional rights are mentioned therein (Art. 189 para. 1 let. d Cst. ). The message relating to the new Federal Constitution explains that the complaint of violation of the Constitution and that of violation of federal law itself are now merged into a single complaint of violation of “federal law,” “in order to express the idea of a single remedy.” Malinverni et al. rightly describe this shortcut as “unfortunate”: litigants could indeed mistakenly believe that only violations of cantonal constitutional rights can be invoked before the Federal Supreme Court. This imprecision is regrettable, as it could mislead litigants who are not lawyers, especially since the assistance of a lawyer is not mandatory for proceedings before the Federal Supreme Court.
19 Neither the Federal Constitution nor the LTF defines the concept of constitutional rights. According to Federal Supreme Court case law, this category includes constitutional provisions that aim to protect citizens from state intervention or that, although enacted primarily in the public interest, also protect individual interests. In determining the existence of constitutional rights, the Federal Court bases its decision in particular on the interest in legal protection and justiciability. It sometimes also refers to the concept of direct applicability (“unmittelbare Anwendbarkeit”), although this criterion is more commonly used in international law (see N. 26 ff. infra). A constitutional provision is directly applicable (or justiciable) when the facts and legal consequences are formulated with sufficient precision to form the basis for a court decision. In domestic law, these are norms that “do not need to be concretized by implementing provisions, like certain fundamental rights enshrined in the Constitution.” . According to Mathias Kaufmann, justiciability refers to the legitimacy of judicial review of a rule of law invoked by an individual. In other words, it is a question of determining whether the rule invoked is subjective in nature, such that its violation could constitute grounds for an admissible appeal. This author also emphasizes that a legal rule is never partially justiciable: it is either justiciable in its entirety or not at all. Finally, direct applicability and justiciability are two “general and abstract” characteristics of norms, which do not depend on the circumstances of the case. On this last point, we agree with Kaufmann's position.
20 By definition, at least in principle, all the fundamental rights listed in Articles 7 to 36 of the Constitution are justiciable, in particular the principle of equality before the law (Article 8(1) of the Constitution), protection against arbitrariness and protection of good faith (Art. 9 Cst.), protection of children and young people in terms of protection against state interference (Art. 11 para. 1 ab initio Cst.), the right to emergency assistance (Art. 12 Cst.), protection of privacy (Art. 13 Cst.), freedom of conscience and belief (Art. 15 Cst.), freedom of opinion and information (Art. 16 Cst.), freedom of the media (Art. 17 Cst.), freedom of language (Art. 18 Cst.), the right to basic education (Art. 19 Cst.), freedom of science (Art. 20 Cst.), freedom of art (Art. 21 Cst.), freedom of assembly (Art. 22 Cst.), freedom of association (Art. 23 Cst.), freedom of establishment (Art. 24 Cst.), protection against expulsion, extradition and refoulement (Art. 25 para. 1 and 2 Cst.), guarantee of property (Art. 26 para. 1 Cst.), economic freedom (Art. 27 Cst.), freedom of association (Art. 28 Cst.), procedural guarantees (Art. 29 ff. Cst.) and the principle of proportionality (Art. 36 para. 3 Cst.). Other constitutional rights and principles are also directly applicable, such as the principle of legality (Art. 5 Cst.), the principle of the primacy of federal law (Art. 49 Cst.), the (unwritten) principle of the separation of powers, and the prohibition of inter-cantonal double taxation (Art. 127 para. 3 Cst.). According to legal doctrine, the prohibition on the construction of minarets provided for in Art. 72 para. 3 Cst. is directly applicable. The Federal Court also held that Art. 75b para. 1, in conjunction with Art. 197 no. 9 para. 2 Cst., provides for an immediately applicable ban on the construction of second homes in municipalities where the 20% limit has already been reached or exceeded.
21 On the other hand, organizational requirements or purely programmatic provisions are not justiciable. The Federal Constitution also expressly excludes the justiciability of social goals (Art. 41 para. 4 Cst.), which has been confirmed by the Federal Supreme Court with regard to Art. 41 para. 1 let. e Cst.. In a case where the appellant complained of a violation of Art. 121 Cst., the Federal Court ruled that this provision “is a programmatic norm that requires implementation by the legislature and therefore does not confer any constitutional right on the appellant to appeal.” Art. 121a Cst. is not directly applicable. The same applies to the principle of sustainable development in Art. 73 Cst.: according to the Federal Court, “this concept – the content and contours of which are still vague – is currently essentially programmatic in nature and does not have the status of a constitutional right that could be directly invoked as such before a court.” The maxims of state action that require a high degree of concretization (e.g., Articles 5a and 6 of the Constitution) are also not justiciable. Similarly, the Federal Court has held that Article 106 of the Constitution concerning gambling does not contain any directly applicable provisions.
22 The concept of federal law naturally includes federal statutes. According to Art. 164 para. 1 of the Constitution, all important provisions that lay down rules of law must be enacted in the form of a federal law. This category includes, in particular, the fundamental provisions relating to the areas expressly mentioned in Art. 164 para. 1, second sentence, letters a to g of the Constitution. For example, according to case law, essential procedural provisions such as the substantive jurisdiction of the courts and legal remedies must be enacted in a formal law. However, the Federal Assembly may also enact less important legal rules in the form of a federal law (Art. 22 para. 2 ParlA).
23 Legislative ordinances (“Rechtsverordnungen”), which are addressed to all authorities and individuals and contain rules of law, constitute federal law (Art. 22 para. 2 ParlA; Art. 7 and 48 LOGA) . This is not the case, however, for administrative ordinances (“Verwaltungsverordnungen”), which in principle have no legal effect and do not create rights and obligations for individuals; they are simply a working aid and support for the authorities. According to the Federal Court, Circular No. 26 of December 16, 2009, issued by the Federal Tax Administration (FTA) concerning changes relating to self-employment following the adoption of the Corporate Tax Reform II Act, is an administrative order that does not have the force of law. This means that the court may deviate from it if it considers it to be contrary to the law or the ordinance. The same applies to the guidelines and comments issued by the State Secretariat for Migration (SEM), the National Civil Aviation Security Program issued by the Federal Office of Civil Aviation (FOCA), the communications adopted by the Competition Commission (Comco) concerning the assessment of vertical agreements, or brochures and other instructions issued by the FTA on VAT – even if the latter have an external effect.
24 Standards established by private law associations do not constitute federal law either. This applies to the Swiss Code of Professional Conduct (CSD) issued by the Swiss Bar Association (FSA).
25 Finally, customary law (Art. 1 para. 2 CC), which is currently extremely rare, may also constitute federal law.
3. International law (letter b)
26 The Federal Supreme Court also has jurisdiction to rule on disputes concerning violations of international law (see also Art. 95(b) LTF). The message relating to the new Federal Constitution explains that it is justified to mention the complaint of violation of international law separately, as it does not simply overlap with that of violation of federal law. Although treaties concluded by the cantons with foreign countries (Art. 56 Cst.) are not part of federal law, they are included in the concept of international law, in the same way as treaties concluded by the Confederation.
27 According to the Swiss conception, international treaties concluded by Switzerland form an integral part of the Swiss legal order, without it being necessary to specifically transform them into domestic law (monist system). The Federal Constitution also requires the Federal Court and other authorities to apply international law (Art. 190 Cst.).
28 The term international law is traditionally defined by reference to Art. 38(1) of the Statute of the International Court of Justice of June 26, 1945 (RS 0.193.501): it is based on international conventions, whether general or special, on international custom, and on the general principles of law recognized by civilized nations; judicial decisions and doctrine are auxiliary means of determining the rules of law. This provision sets out the traditional sources of international law. In addition, decisions of international organizations that are binding on Switzerland but not mentioned in Art. 38 para. 1 of the aforementioned Statute are also part of international law. On the other hand, international norms that only have the status of “soft law,” such as recommendations or comments, are not part of international law.
29 The provisions of international law can only be invoked in specific disputes if they confer individual rights, which presupposes that the content of the standard invoked is sufficiently precise and clear to serve as a basis for a decision in a particular case. This also implies that the rights and obligations of individuals are described and that the standard is addressed to the authorities responsible for applying the law. The criterion of direct applicability corresponds to the requirement of justiciability (see N. 19 supra). In general, a norm is directly applicable if the following three conditions are cumulatively met: (1) the norm in question establishes rights and obligations for natural and legal persons; (2) it is sufficiently precise and clear, without requiring internal implementation or concretization measures for its enforcement; and (3) it is addressed to law enforcement authorities. As Ammann points out, in some cases, the Federal Court only mentions some of these conditions, which she considers problematic in terms of predictability, clarity, and consistency. That said, a distinction must be made between directly applicable (or “self-executing”) standards (see N. 30 infra), which can be invoked in court by an individual, and standards that are not directly applicable (or “non-self-executing”; see N. 31 infra), which cannot be invoked in court by an individual without being implemented in domestic law through the adoption of Swiss legal standards that make them justiciable. The Federal Court does not hear appeals based on standards that are not directly applicable.
30 The Federal Court has considered the following to be directly applicable, meaning that any individual may invoke them directly before any national administrative or judicial authority:
the rights guaranteed by the Convention of November 4, 1950, for the Protection of Human Rights and Fundamental Freedoms (ECHR; RS 0.101);
the rights guaranteed by the International Covenant of May 9, 2022, on Civil and Political Rights (UN Covenant II; RS 0.103.2);
several provisions of the Agreement of June 21, 1999, between the Swiss Confederation, on the one hand, and the European Community and its Member States, on the other hand, on the free movement of persons (AFMP; RS 0.142.112.681) ;
Art. 12 of the Convention of November 20, 1989, on the Rights of the Child (CRC; RS 0.107), which guarantees the right of the child to be heard;
Art. 14 para. 1 let. b of the Convention of May 16, 2005, on Action against Trafficking in Human Beings (RS 0.311.543), which stipulates that each Party shall issue a renewable residence permit to victims when the competent authority considers that their stay is necessary for the purposes of cooperation with the competent authorities in an investigation or criminal proceedings;
Article 24(1)(b) of the Convention of July 28, 1951, relating to the Status of Refugees (RS 0.142.30), which provides that Contracting States shall accord refugees lawfully staying in their territory the same treatment as nationals in respect of social security (in particular the legal provisions relating to disability), subject to certain reservations provided for in subparagraphs (i) and (ii);
Article 1(1) of the Agreement of November 22, 1950, on the importation of educational, scientific, or cultural items (RS 0.631.145. 141), which specifies that the contracting states undertake not to apply customs duties and other taxes on importation or on the occasion of importation to objects covered by the Agreement.
31 However, the Federal Court has denied the direct applicability of:
several provisions of UN Covenant I;
provisions of the CRC, such as Art. 2 CRC, which aims to guarantee non-discrimination and the protection of all children against any form of discrimination, regardless of their personal characteristics or those of their parents or legal representatives, Art. 3 para. 1 CRC, which establishes that the best interests of the child must be a primary consideration in all decisions concerning the child, and Art. 26 CRC, the objective of which is to guarantee the right of every child to social security, including social insurance, by obliging States Parties to take the necessary measures to ensure the realization of this right in accordance with national legislation;
Art. 2(1)(a) of the Paris Agreement (Climate Agreement) of December 12, 2015 (RS 0.814.012), which aims to hold the increase in the global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C;
Article 5(3) of the Convention of December 13, 2006, on the Rights of Persons with Disabilities (RS 0.109), which provides that, in order to promote equality and eliminate discrimination, States Parties shall take all appropriate measures to ensure that reasonable accommodations are made;
Article 22(2) of the Convention of July 28, 1951, relating to the Status of Refugees (RS 0.142.30), which specifies in short that Contracting States must grant refugees treatment at least as favorable as that accorded to foreigners in general with regard to secondary and higher education;
Article 15 of the Council of Europe Convention of May 16, 2005, on Action against Trafficking in Human Beings (RS 0.311.543) and in particular paragraph 3, which provides that the parties must provide in their domestic law for the right of victims to be compensated by the perpetrators of offenses;
the Convention of November 14, 1970 on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (RS 0.444.1; UNESCO Convention), insofar as its implementation requires the contracting states to legislate and transpose it into their national legislation;
Article 5(1)(b) of the United Nations Convention of December 20, 1988, against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which provides that each Party shall adopt such measures as may be necessary to enable the confiscation of, inter alia, narcotic drugs and psychotropic substances. This provision only contains a mandate given to the States Parties and does not create any direct rights or obligations for individuals;
Art. 22(3) of the Convention of February 21, 1971, on Psychotropic Substances (RS 0.812.121.02), which provides that any psychotropic substance, any other substance, and any equipment used or intended to be used to commit any of the offenses within the meaning of the Convention may be seized and confiscated.
32 It is worth mentioning a special category of obligations that does not fall within the usual categories of direct or indirect applicability of standards, using the following two examples:
the Convention of October 3, 1985, for the Protection of the Architectural Heritage of Europe (RS 0.440.4) requires the adoption of appropriate measures for the protection of historic monuments and obliges each Party to establish appropriate control and authorization procedures. According to the Federal Court, these are not provisions addressed to the authorities responsible for applying the law, but legislative mandates. It also clarified that even when the legislature has room for maneuver and direct application of relevant higher-level standards is excluded in a particular case, it may still be required to act in accordance with those standards. It also emphasized that legislation is based on a political process that takes time and whose content may vary. Thus, in his view, judicial intervention is justified only if the cantonal legislature's obligation to act under international or constitutional law appears sufficiently precise and measurable in terms of content and time frame. If this is the case, compliance with it may be invoked in the context of an abstract review of cantonal standards. He specified that this applies not only when the cantonal legislature fails to act within the prescribed time frame, but also when it acts without sufficiently implementing higher-ranking law. It was in this context that the Federal Court ruled that a provision of the cantonal law of the canton of Zug on the preservation of historical monuments, archaeology, and the protection of cultural property (RS/ZG 423.11) was incompatible with the aforementioned Convention;
Article 34 of the Convention of July 28, 1951, relating to the Status of Refugees (RS 0.142.30) provides, in particular, that Contracting States shall facilitate, as far as possible, the assimilation and naturalization of refugees. The Federal Court ruled that a refugee did not have an individual right to naturalization under Article 34 of this Convention. However, it specified that this did not preclude recognizing this provision as decisive, in the sense that it should be taken into account as an aid to interpretation and assessment when examining the conditions for naturalization in a particular case.
33 Finally, it should be borne in mind that the requirement of direct applicability or justiciability is decisive when a litigant relies on a norm to derive a right in the context of a specific dispute. This situation must be distinguished from an appeal in public law against a cantonal normative act (abstract review of a norm). The Federal Court reiterated this in a ruling in which the dispute arose in the following context. The appellants challenged the compatibility of an amendment to a provision of the Geneva wine regulations with the provisions of Annex 7 to the Agreement of June 21, 1999, between the Swiss Confederation and the European Community on trade in agricultural products (RS 0.916.026.81; hereinafter: Bilateral Agreement). The Geneva Council of State argued that the appellants could not complain of a violation of the Bilateral Agreement and its annex, as these were not directly applicable. The Federal Court pointed out that, under Article 5(4) of the Constitution, the Confederation and the cantons must comply with international law. In its view, the question of whether the relevant provisions of the Agreement are directly applicable is not decisive in this case, as it is not a matter of discussing rights or obligations that the appellants could invoke directly in court, but of examining a cantonal regulation in the light of the Agreement in question.
4. Intercantonal law (letter c)
34 The Federal Supreme Court has jurisdiction to examine violations of intercantonal law (see also Art. 95(e) LTF). This is the first specific case in which a violation of cantonal law can be invoked as such before the Federal Supreme Court. The message relating to the new Federal Constitution specifies that this is a “service” provided by the Confederation to the cantons. According to the Federal Supreme Court, this jurisdiction is justified by the fact that, in the absence of a supra-cantonal court, it seemed appropriate for the Federal Supreme Court to be able to develop a single interpretation of inter-cantonal agreements, “in order to avoid them being applied differently from one canton to another, which could cause inter-cantonal tensions.” It freely controls its application, unlike cantonal law, which is reviewed from the perspective of arbitrariness (see N. 15 supra).
35 Intercantonal law includes intercantonal agreements (Art. 48 para. 1 Cst.) and legal norms enacted by intercantonal organizations or institutions established by intercantonal agreements. Intercantonal customary law is also included. Intercantonal agreements must not conflict with the law and interests of the Confederation or with the law of other cantons; they must also be brought to the attention of the Confederation (Art. 48 para. 3 Cst.). . In this context, the Federal Court ruled that the Latin Concordat of October 29, 2010, on the cultivation and trade of hemp violated the principle of the primacy of federal law enshrined in Art. 49 para. 1 of the Constitution and should therefore be annulled, since it pursued the same objectives as federal legislation on agriculture and narcotics.
36 As Andreas Auer points out, inter-cantonal agreements are far from anecdotal: their number is estimated to have reached nearly 800 in 2016. We can mention, for example, the Intercantonal Agreement of May 8 and 9, 2012, on data protection and transparency in the cantons of Jura and Neuchâtel (CPDT-JUNE; RSN 150.30), the Intercantonal Agreement of October 25, 2007, on cooperation in the field of special education (AICPS), the Intercantonal Agreement of February 18, 1993, on the recognition of diplomas, the Intercantonal Agreement of June 18, 2009, on the harmonization of student grant schemes, the Fire Protection Standard of January 1, 2015 (AEAI standard), enacted by the Association of Cantonal Fire Insurance Institutions, and the Intercantonal Agreement of September 22, 2005, harmonizing terminology in the field of construction (AIHC).
37 Individuals may only invoke directly applicable intercantonal legal standards, which is notably the case for the CPDT-JUNE, Art. 2(b) AICPS, and the AEAI standard.
38 Disputes between cantons concerning intercantonal law may be brought before the Federal Supreme Court by means of an action (Art. 189 para. 2 Cst.; Art. 120 para. 1 let. b LTF) (see N. 55 ff. infra).
5. Cantonal constitutional rights (let. d)
39 The violation of cantonal constitutional rights is the second specific case in which the violation of cantonal law may be invoked independently before the Federal Supreme Court (see also Art. 95(c) LTF). As we have seen above (see N. 15 supra), the Federal Supreme Court also acts as the guardian of the cantonal constitutions.
40 According to the Federal Supreme Court, the concept of cantonal constitutional rights within the meaning of Art. 95(c) LTF does not extend to any cantonal constitutional provision, but only to those that guarantee individual rights. The above can also be inferred from the use of the plural (“constitutional rights”), which suggests that the reference here is not to the cantonal constitution as a whole, but only to those provisions that guarantee rights. Cantonal constitutional rights only have their own scope if they grant more extensive protection than the corresponding guarantees in the Federal Constitution or the ECHR.
41 In particular, Art. 17 Cst./ZH (RS 131.211), which provides that everyone has the right to consult official documents, unless this is contrary to an overriding public or private interest, and Art. 40 para. 1 Cst./ZH, which specifies that anyone who has the right to vote in cantonal matters is eligible for election to the supreme courts of the canton; or § 75 para. 1 Cst./AG (RS 131.227), which stipulates in particular that the canton and the municipalities are liable for damage caused without right to third parties by their authorities or by their officials or other employees in the exercise of their official duties. The same applies to Art. 17 para. 2 Cst./FR (RS 131.219), which provides that anyone who addresses an authority whose jurisdiction extends to the entire canton may do so in the official language of their choice. According to the Federal Court, this provision allows a litigant to address the cantonal court in the official language of their choice, regardless of the language of the proceedings. Finally, the rights to an offline life and to be forgotten, mentioned in Art. 21A para. 2 Cst./GE (RS 131.234) and 10a para. 2 Cst./NE (RSN 101), also appear to be justiciable.
42 On the other hand, § 35 Cst./LU (RS 131.213), which requires the authorities to inform the public in a timely manner about their objectives and activities, and Art. 60 Cst./SO (RS 131.221), which provides that public office must be conferred on the most qualified persons and that, as far as possible, equitable consideration must be given to the various population groups, in particular the different regions and political tendencies, when assigning positions, do not constitute constitutional provisions conferring rights that can be directly invoked in court.
43 Case law does not exclude the existence of a constitutional custom. In a 2012 ruling concerning the canton of Geneva, the Federal Court denied the existence of such a custom that would have allowed the State Council to extend its legislative powers to regulate the field of sworn translators. On the other hand, it ruled, in a 2010 ruling concerning the canton of Zug, that it was permissible to grant small municipalities, on the basis of a cantonal customary rule, a minimum right to two seats in the cantonal parliament.
6. Municipal autonomy and other cantonal guarantees (letter e)
44 The Federal Supreme Court hears cases concerning violations of municipal autonomy and other guarantees granted by the cantons to public corporations (see also Art. 89 para. 2 let. c LTF in relation to standing to appeal). This is the third specific case in which a violation of cantonal law can be invoked as such. Although appeals for violations of municipal autonomy were not mentioned in the old Federal Constitution of May 29, 1874, the Federal Supreme Court had nevertheless recognized their existence in consistent case law. Letter e thus represents a codification of case law.
45 The guarantees mentioned in letter e are not specifically indicated in the list of grounds for appeal in Art. 95 LTF. However, the possibility of such an appeal is not called into question, as indicated in the text of Art. 89 para. 2 let. c LTF. The Federal Supreme Court also considers that municipal autonomy is part of cantonal constitutional rights within the meaning of Art. 95 let. c LTF.
46 The Federal Constitution guarantees municipal autonomy “within the limits set by cantonal law” (Art. 50 para. 1 Cst.). Most cantonal constitutions also guarantee this. According to the case law of the Federal Supreme Court, municipalities are autonomous in a given area when cantonal law does not regulate it exhaustively, but delegates its regulation entirely or partially to them and grants them a relatively high degree of freedom of decision. Furthermore, as explained in the message on the new Federal Constitution, appeals for violation of municipal autonomy "differ from appeals for violation of constitutional rights in terms of the status of the appellant (the appeal is brought by a public body and not by an individual) and the nature of the grievance invoked (even if the autonomy of municipalities and other public law corporations serves to guarantee a freedom, it does not constitute a fundamental right of individuals against the state) ."
47 The extent of municipal autonomy varies considerably from one canton to another. Case law has, for example, recognized that municipalities that consider their autonomy to have been infringed by a cantonal master plan may—unlike individuals—challenge it directly or, in certain circumstances, on a preliminary basis on the basis of Art. 89 para. 2 let. c LTF. They therefore have standing to appeal on the grounds of a violation of their autonomy. In another ruling, the Federal Court held that Art. 84 para. 2 Cst./ZH, which provides that the dissolution of a school district—which, like a political municipality, is an autonomous public entity (Art. 83 para. 3 Cst./ZH)—may be decided by a majority vote within that municipality, confers a guarantee of cantonal law on school districts. This guarantee, which is enshrined in the cantonal constitution and guaranteed by the Confederation, is protected by the latter. School districts may therefore argue, where appropriate, that a cantonal legal provision that contravenes this guarantee violates higher-level law (Art. 89 para. 2 let. c LTF). Furthermore, in the canton of Fribourg, cantonal legislation authorizes, and even requires, municipalities to regulate the distribution of drinking water and the collection of a connection fee within their territory. They can therefore claim a certain degree of autonomy in this area.
48 The protection of constitutional rights granted to municipalities to defend their autonomy has only been extended to certain public law corporations, such as the Evangelical Church of the Canton of St. Gallen, whose organization can be compared to that of a municipality, and the University of Lausanne. However, it has been denied to the Geneva Industrial Services, the Hospice général of the same canton, the canton of Vaud (CHUV), the cantonal insurance and prevention establishment of the canton of Neuchâtel, the canton of Geneva, and Geneva International Airport.
7. Political rights (letter f)
49 The Federal Court has jurisdiction to examine challenges for violation of federal and cantonal provisions on political rights. This is the last case in which a violation of cantonal law can be invoked independently (see also Art. 95(d) LTF) . As Pascal Mahon points out, this ground for referral to the Federal Supreme Court in a separate letter was not absolutely necessary, since political rights are protected by Art. 34 Cst., a provision that constitutes federal law within the meaning of Art. 189(a) (see N. 17 ff. supra).
50 Under Art. 34 para. 1 Cst., political rights are guaranteed. This guarantee protects the free formation of citizens' opinions and the faithful and reliable expression of their will (Art. 34 para. 2 Cst.). The concept of political rights includes the right to vote and to stand for election (active and passive), the preparation and conduct of polls (votes and elections), the right of initiative and referendum, and other forms of democratic participation. Appeals in matters of political rights protect not only the individual political rights of each citizen, but also the proper functioning of the democratic decision-making process.
51 It is interesting to note that under the old Federal Constitution, the Federal Court had only marginal powers in the area of political rights at the federal level. The reform of the judiciary introduced an appeal in matters of political rights at the federal level. Letter f thus provides for a "significant substantive innovation " in that the powers that had been granted to the Federal Council and the National Council are now assumed by the Federal Court (see Art. 80 LDP).
52 Although, according to the message relating to the new Federal Constitution, the aim was “to grant the same judicial protection for political rights at the federal level as at the cantonal level,” this aim has not been achieved, as François Chaix rightly points out: there is in fact no parallelism, since appeals against acts of the Federal Assembly concerning the validity of a popular initiative (Art. 139 para. 3 Cst.) (see N. 83 infra) and information provided by the Federal Council to voters (Art. 10a LDP) is excluded by Art. 189 para. 4 Cst. (see N. 84 infra).
53 The PFA does not provide for any legal remedy to challenge irregularities that only become known after a federal vote. However, the Federal Supreme Court has held in its case law that a “retrospective judicial review” is linked to Art. 189 para. 1 let. f Cst. . It therefore has jurisdiction, as the court of last resort, to hear appeals in which the constitutionality of a federal vote and its conformity with federal legislation are called into question on the grounds of serious irregularities discovered subsequently (on this issue, see also N. 92 infra).
54 According to the Federal Court, irregularities in a federal vote must first be challenged before the cantonal government, in accordance with Art. 77 LDP, even if the conclusions reached or the facts contested exceed the jurisdiction of the cantonal authority, which will in such cases issue a decision of inadmissibility. This situation is unsatisfactory; in our opinion, in the interests of procedural economy, the filing of an omisso medio appeal (or “Sprungbeschwerde”) directly with the Federal Court should be allowed. It should be noted that the Message of April 30, 2025, on the amendment of the Federal Act on Political Rights takes this problem into account. The Federal Council proposes to relieve the cantons by providing, in such cases, the possibility of appealing directly to the Federal Supreme Court, which would also require an amendment to the LTF. This revision is welcome. It should also be mentioned that in a case concerning an appeal against the withdrawal of a popular initiative, the Federal Supreme Court ruled that there were important reasons for applying Art. 80 para. 2 and 3 LDP and to allow the possibility of direct appeal to the Federal Supreme Court.
B. Jurisdiction of the Federal Supreme Court in disputes between the Confederation and the cantons or between cantons (para. 2)
1. General
55 The jurisdiction of the Federal Supreme Court to rule on disputes between the Confederation and the cantons or between the cantons could have been inferred from Art. 189 para. 1 of the Constitution, in particular letters a and c. It was considered important enough to be mentioned separately in the Constitution. As explained in the message relating to the new Federal Constitution, it is “important for a federal state that conflicts between it and its member states or between the member states themselves are dealt with in the context of ordinary judicial proceedings.” It is logical that the Federal Supreme Court should have jurisdiction to rule on such disputes, which will be brought before it by way of action, provided that no other legal remedy is available.
56 Art. 189 para. 2 Cst. is a mandate addressed to the legislature. It is implemented in Art. 120 LTF (on the relationship between these two provisions, see N. 71 ff. infra). Paragraph 1 of this provision lists the disputes that may be the subject of an action in single instance before the Federal Court. These are conflicts of jurisdiction between federal and cantonal authorities (letter a), as well as civil or public law disputes between the Confederation and the cantons or between cantons (letter b). Art. 120 para. 1 letter a LTF (which deals with conflicts of jurisdiction) is a subcategory of Art. 120 para. 1 letter b LTF (which concerns civil or public law disputes). Art. 120 para. 1 LTF letter c has a different scope: it concerns liability actions against the State that fall within the category of other powers of the Federal Supreme Court (Art. 189 para. 3 LTF; N. 75 ff. infra).
57 The action is inadmissible if another federal law empowers an authority to rule on such disputes (Art. 120 para. 2 LTF). In other words, the subsidiarity of the appeal within the meaning of Art. 120 para. 2 LTF prevents direct proceedings before the Federal Supreme Court. On the other hand, when proceedings by way of action are admissible, there is no longer any room for appeal proceedings. It should also be noted that the action is also inadmissible when brought by private individuals, as the wording of Art. 189 para. 2 Cst. and Art. 120 para. 1 let. a and b LTF clearly refer to the Confederation and the cantons.
58 The particularity of the action lies in the fact that the Federal Supreme Court is not seized as the final appeal instance, after all legal remedies have been exhausted, as is generally the case, but as the sole instance. It is thus required to investigate the cases itself and establish the facts, which does not correspond to its traditional role as a supreme court (Art. 188 para. 1 Cst.), and is also likely to contribute to its overload. One of the objectives of the reform of the judiciary (revision of the Federal Constitution) and the total revision of the federal judicial organization was precisely to relieve the Federal Court of these direct proceedings. Thus, “it should no longer function as the sole instance in cases where general policy considerations so require [...],” namely in the disputes listed in Art. 120 para. 1 LTF.
59 The action procedure under Art. 120 para. 1(a) and (b) LTF is rarely used. Instead of bringing an action, the federated entities attempt to resolve their differences informally on the basis of Art. 44 para. 3 Cst. This provision stipulates that disputes between cantons or between cantons and the Confederation shall, as far as possible, be settled through negotiation or mediation.
2. Disputes
60 As indicated above, disputes within the meaning of Art. 189 para. 2 Cst. may concern conflicts of jurisdiction or civil or public law disputes. These disputes are important from a constitutional law perspective. With regard to conflicts of jurisdiction, the role of the Federal Supreme Court is to examine whether the division of powers within the federal state has been respected, or to determine which authority is entitled to act in a particular area. Disputes within the meaning of Art. 189 para. 2 of the Constitution are specific in that they pit the Confederation against the cantons (letter a) or the cantons against each other (letter b).
a. Between federal and cantonal authorities
61 In relations between federal and cantonal authorities, there are numerous federal laws within the meaning of Art. 120 para. 2 LTF that empower a federal authority to settle a conflict of jurisdiction or a dispute by means of a decision that is subject to appeal. In procedural terms, the main difficulty lies in identifying and, where applicable, interpreting the relevant legal bases in order to determine whether the action should be admitted or whether the appeal route should be preferred. In general, in the relationship between federal and cantonal authorities, the Federal Supreme Court considers that the action should only be admitted in a restrictive manner and that the appeal route should be preferred. Below, we present three judgments in which the Federal Supreme Court was seized of a dispute between a federal authority and a cantonal authority (see N. 62 to 64).
62 ATF 136 IV 139 concerned a negative conflict of jurisdiction between the Ticino Cantonal Court and the Federal Criminal Court (FCC), both of which had declared themselves incompetent to rule on a request to unseal documents seized from a law firm's offices by the Ticino Public Prosecutor's Office. When the FPC brought an action before the Federal Supreme Court, the latter did not hear the case, considering that the conflict of jurisdiction should have been resolved by means of a decision of inadmissibility by the FPC, which could be challenged before the Federal Supreme Court within the meaning of Art. 120 para. 2 LTF (see N. 57 supra).
63 In a judgment not published in the Official Compilation, the Federal Supreme Court considered a conflict of jurisdiction concerning the setting of a single grid connection fee, a dispute between the Swiss Confederation (the plaintiff), acting through the Department of the Environment, Transport, Energy and Communications (DETEC), represented by the Federal Electricity Commission (ElCom), and the Canton of Lucerne (the defendant). On the merits, the Federal Court upheld the action, holding that ElCom did not have jurisdiction to set or control network connection costs and network contributions; this task fell to the cantonal authorities. It was therefore the canton of Lucerne that was competent to examine the claim brought by the network operator against an end consumer.
64 ATF 150 II 273 deals with a public law dispute between the Confederation and a canton (Art. 120(1)(b) LTF). The dispute arose from a decision by the State Secretariat for Migration (SEM) to no longer pay lump-sum allowances to the Republic and Canton of Neuchâtel in connection with the care of an asylum seeker, on the grounds that the canton had failed in its duty to transfer the asylum seeker to another country within the prescribed time limit under the Dublin Regulation. On the question of its jurisdiction, the Federal Supreme Court points out that, under Art. 120 LTF, proceedings before the Federal Supreme Court are in principle the ordinary judicial remedy in disputes between the Confederation and the cantons; However, it becomes subsidiary to the public law appeal procedure (Art. 82 ff. LTF) when a special law assigns jurisdiction to an authority other than the Federal Supreme Court to rule on such a dispute by way of a decision. It emphasized that case law had already recognized that it was the responsibility of the Federal Office for Migration, now the SEM, to rule by way of decision on the reimbursement by the Confederation of the costs incurred by the cantons for the accommodation of asylum seekers. The SEM does indeed have such jurisdiction pursuant to Art. 16 of the Federal Act of October 5, 1990, on Financial Assistance and Compensation (LSu; RS 616.1). Consequently, the Federal Supreme Court finds that this is a situation in which a federal law empowers an administrative authority, in this case the SEM, to rule on a public law dispute between the Confederation and a canton, so that this dispute cannot be brought before the Federal Supreme Court within the meaning of Art. 120 para. 1 let. b LTF, but only to a public law appeal in the final instance within the meaning of Art. 120 para. 2 LTF. It also held that an appeal based on Art. 120 para. 2 LTF must satisfy only the conditions set out in Chapter 4 of the LTF, and that there was no need to examine the conditions set out in Art. 83 and 89 LTF. The Federal Supreme Court's decision is based in particular on the fact that a ruling of inadmissibility based on Art. 83 or 89 LTF would prevent the highest court in the country from ruling on certain types of disputes arising between the Confederation and the cantons or between cantons, contrary to the provisions of Art. 189 para. 2 Cst.
b. Between cantons
65 It should first be noted that although the LTF does not mention in Art. 120 para. 1 let. a LTF only refers to conflicts of jurisdiction between the Confederation and the cantons, the Federal Supreme Court may also be seized of an intercantonal conflict of jurisdiction by an action within the meaning of Art. 120 LTF, in the absence of jurisdiction of another authority ruling by way of a decision that may be appealed before it. This is clear from the wording of Art. 189 para. 2 Cst. and from the fact that, as indicated above, a conflict of jurisdiction is nothing more than a dispute. It should also be noted that decision-making powers appear to be more delicate in relations between cantons than in relations between federal and cantonal authorities (see N. 61 supra). Indeed, it is difficult to imagine that a canton, in the context of a dispute with another canton, would be empowered to issue a decision that is binding on the other canton concerned. This situation is illustrated by the two judgments presented below (see N. 66 and 67). On the other hand, as shown by the last judgment mentioned (see N. 68 infra), it should be borne in mind that a federal authority may be empowered to issue a decision that is binding on a canton in the context of a dispute between two cantons.
66 In ATF 141 III 84, the Federal Supreme Court considered the designation of the child and adult protection authority (hereinafter: CAPA) with jurisdiction at the inter-cantonal level. The canton of St. Gallen and the CAPA of that canton (hereinafter: the appellants) had appealed to the Federal Supreme Court against a decision of the High Court of the canton of Schaffhausen, which had found that the CAPA of Schaffhausen was not competent to establish a guardianship in favor of A. and referred the case back to the APEA of the canton of St. Gallen for further examination. In their conclusions, the appellants asked the Federal Supreme Court to find that the APEA of the canton of St. Gallen did not have jurisdiction; alternatively, they requested that their appeal be treated as an action by the canton of St. Gallen against the canton of Schaffhausen. In this case, the Federal Supreme Court ruled that Art. 444 para. 4 CC could not be considered as a federal authorization within the meaning of Art. 120 para. 2 LTF, allowing the judicial appeal authority of one canton to determine, with binding effect, the jurisdiction of an APEA of another canton, and thus rendering inadmissible an action in matters of inter-cantonal conflicts of jurisdiction between APEAs. It concluded that when APEAs located in different cantons disagree on their jurisdiction, their dispute must be settled by means of an action within the meaning of Art. 120 para. 1 let. b LTF (consideration 4.7). It therefore did not consider the appeal. Finally, leaving open the question of whether an action and an appeal can be filed in the same brief or whether they must be filed separately, it also did not consider the action, since neither the plaintiff (represented by the head of the Department of the Interior of the canton of St. Gallen) nor the defendant (represented by the APEA of the canton of Schaffhausen) had explicitly justified their power to represent the cantons concerned.
67 The Federal Court confirmed the solution adopted in ATF 141 III 84 in a judgment dating from 2022. It specified that, when the APEA first seized of the case submits the question of its jurisdiction to the judicial appeal body, pursuant to Art. 444 para. 4 CC, there are two possible outcomes. First, if the judicial appeal body considers that an extra-cantonal APEA has jurisdiction within the meaning of Art. 444 para. 4 CC, there is a negative intercantonal conflict of jurisdiction and the only possible legal remedy is the action provided for in Art. 120 para. 1 let. b LTF; the Federal Court does not hear appeals against the decision of the judicial appeal body. Secondly, if the judicial appeal authority confirms the territorial jurisdiction of the APEA that submitted the question of its jurisdiction to it, there is no longer an inter-cantonal conflict of jurisdiction and the APEA is bound by the decision of the cantonal judicial appeal authority, as is the case for intra-cantonal conflicts of jurisdiction.
68 Finally, ATF 136 IV 44 shows that, in the context of a dispute between cantons, it is always necessary to examine whether a federal law empowers an authority to rule on such a dispute. In this case, the canton of Bern had brought an action against the canton of Appenzell Ausserrhoden before the Federal Court concerning the the enforcement in Switzerland of a criminal judgment handed down abroad. The canton of Bern concluded that the canton of Appenzell Outer Rhodes was competent to enforce a custodial sentence imposed on X by a judgment of a court in Madrid and declared enforceable by a decision of a Bernese court of first instance. The Federal Court refused to hear the case. It held that the Federal Office of Justice would have to decide the question of jurisdiction on the basis of Art. 104 para. 1 IMAC, by means of a decision against which the canton concerned could appeal to the Federal Court, in accordance with Art. 120 para. 2 LTF.
3. Some remarks on case law
69 The case law of the Federal Supreme Court mentioned in the previous chapter shows that proceedings concerning disputes within the meaning of Art. 189 para. 2 of the Constitution can pose difficulties for the cantons and federal authorities concerned. Indeed, identifying the correct legal remedy in a particular case is not always straightforward, and errors are frequent. In case of doubt, it is recommended to take action both by way of legal action and by way of appeal in two separate documents.
70 With regard to the examination of jurisdiction within the meaning of Art. 444 CC, some authors suggest that the legislator should supplement para. 4 of this provision to explicitly indicate that the decision of the judicial authority is binding on the other cantons. For the reasons mentioned above (see N. 65 supra), such a solution seems to show little respect for the sovereignty of the cantons. This sovereignty is precisely preserved by the action, which allows the cantons to appear before the Federal Supreme Court on an equal footing.
4. Constitutionality of Art. 120 para. 2 LTF
71 According to Zheni Luks, Art. 189 para. 2 Cst. prescribes only legal action, and not appeals, as the procedure to be followed to settle disputes between the Confederation and the cantons or between the cantons. She deduces this in particular from the importance and nature of the disputes in question, which require that only the Federal Supreme Court be competent to settle them by way of action, in a single instance. She therefore considers that Art. 120 para. 2 LTF, which provides that an action is inadmissible if another federal law empowers an authority to rule on such disputes and an appeal against that decision is admissible in the final instance before the Federal Supreme Court, is not in accordance with Art. 189 para. 2 Cst.. Thus, according to its interpretation of this provision, the constituent assembly would not have allowed the legislature to provide for any other remedy than legal action in respect of these disputes.
72 We do not share this view. It is for the federal legislature to decide whether these disputes should be settled by legal action or by appeal. This is a matter of judicial organization that has no place in the Federal Constitution and must be regulated in the LTF. Admittedly, the solution proposed by this author, who advocates legal action for disputes provided for in Art. 120 para. 1 let. a and b LTF, offers greater clarity and reduces legal uncertainty. However, as we have seen above, it can sometimes be difficult to determine whether another federal law empowers an authority to rule on such disputes; in fact, the Federal Court may decline to hear cases brought before it (see N. 62 and N. 66 supra). However, the appeal procedure provided for in Art. 120 para. 2 LTF is in line with the desire to relieve the Federal Supreme Court, as expressed on numerous occasions in both the message on a new Federal Constitution and the message on the total revision of the federal judicial system. Art. 120 para. 2 LTF is therefore, in our opinion, consistent with Art. 189 para. 2 Cst.
C. Other powers (para. 3)
73 Art. 189 para. 3 Cst. allows the legislature to extend the powers of the Federal Supreme Court. Legal doctrine is not unanimous as to the nature of these other powers, which is not surprising given that this provision provides little guidance. Pascal Mahon considers that this provision does not seem to refer exclusively to judicial powers, but also to other powers of a legislative or executive nature. In addition to judicial powers, Goran Seferovic does not seem to exclude regulatory or executive powers, insofar as they are linked to judicial powers (Art. 189 Cst.) or to the Federal Court's right to administer itself (Art. 188 para. 3 Cst.). Giovanni Biaggini reaches the same conclusion, but does not mention executive powers.
74 The legislature has made use of paragraph 3 in the LTF as well as in other federal laws. It has given the Federal Supreme Court the power to examine, with full jurisdiction, violations of foreign law (Art. 96 LTF), as well as incomplete or erroneous findings of fact in matters relating to the granting or refusal of cash benefits under accident insurance or military insurance (Art. 97 para. 2 LTF). Other powers deriving from paragraph 3 include the fact that the Federal Supreme Court is the sole instance of appeal and review of arbitral awards (Art. 191 LDIP), that it supervises the management of the Federal Criminal Court, the Federal Administrative Court, and the Federal Patent Court (Art. 1 para. 2 LTF), and that it appoints the members of the assessment commissions (Art. 59 para. 2, first sentence, LEx).
75 The jurisdiction of the Federal Supreme Court has also been extended in the context of direct proceedings (see N. 55 ff. supra) . It hears, by way of a single-instance action, claims for damages or compensation for moral injury resulting from the official activities of persons referred to in Art. 1 para. 1 let. a to cbis of the Federal Act of March 14, 1958, on the Liability of the Confederation, its Authorities and its Officials (LRCF; SR 170.32) (Art. 120 para. 1 let. c LTF), namely the members of the Federal Council and the Federal Chancellor, the members and substitutes of the federal courts, and the members of the Supervisory Authority of the Office of the Attorney General of Switzerland. Art. 10 para. 2, first sentence, LRCF has the same content as Art. 120 para. 1 let. c LTF. The procedure to be followed in these situations is as follows. After filing a claim for compensation with the Federal Department of Finance (Art. 20 para. 2 FCA), the person who considers themselves aggrieved must bring an action before the Federal Supreme Court (Art. 120 para. 1 let. c LTF) when this request is contested by the Confederation or if the latter has not taken a position within three months. They must then bring an action before the Federal Supreme Court within six months (Art. 20 para. 3 LRCF, Art. 3 of the Ordinance of December 30, 1958, relating to the Law on Liability [OLRCF; RS 170.321]).
76 Since the LTF came into force in 2007, the Federal Supreme Court has been seized of approximately 39 liability actions against the Confederation based on Art. 120 para. 1 let. c LTF (as of March 2025). Of these 39 judgments, 22 actions were declared inadmissible, 12 were dismissed (including on the grounds of admissibility), and the rest were removed from the docket because they had become moot or had been concluded by withdrawal or settlement. It is worth noting the significant number of actions declared inadmissible and the lack of admissions. The most frequent cases of inadmissibility concern actions for State liability brought by individuals against members of a cantonal authority, which should have been filed not directly with the Federal Court but with a cantonal authority. Other cases of inadmissibility concern plaintiffs who do not allege unlawful conduct by a member of an authority belonging to the group of persons mentioned in Art. 1 para. 1 let. a to cbis LRCF.
77 Finally, legal doctrine emphasizes that the extension of the Federal Court's jurisdiction has limits. Art. 189 of the Constitution presupposes the existence of a dispute (see N. 13 supra), which means that paragraph 3 is not a legal basis that would allow the legislature to extend the Federal Court's jurisdiction to the issuance of legal opinions. Several authors therefore consider that the practice of obiter dictum, a Latin phrase meaning literally “in passing,” i.e., an opinion that is not necessary for the resolution of the dispute, is questionable, even incompatible with the mission of the Federal Court, which is to rule only on disputes submitted to it by the parties. However, research shows that the Federal Court often resorts to this practice. It is true, however, that it can sometimes be useful in practice to use it to set out the legal issue to be decided in a comprehensive manner, to define its scope, or to provide additional explanations to a litigant, even if restraint should be exercised.
D. Acts of the Federal Assembly and the Federal Council (para. 4)
1. Principle: non-justiciability (first sentence)
78 Under Art. 189 para. 4, first sentence, of the Constitution, acts of the Federal Assembly and the Federal Council cannot be brought before the Federal Supreme Court. The English version of this text differs from the German and Italian versions, which specify that these acts cannot be “contested” (“angefochten,” ‘impugnati’). This difference is not significant; however, it would have been more precise to use the verb “contest” in the English version as well, in reference to the other two language versions.
79 The consequence of this provision is as follows: if such acts are challenged before the Federal Supreme Court in a particular case, the latter must rule that the case is inadmissible. Art. 189 para. 4, first sentence, Cst. thus differs from Art. 190 Cst. The latter provision provides for an obligation to apply federal laws and international law, and not a prohibition on review. According to case law, it is possible to examine the unconstitutionality of a federal law on a preliminary basis; but if such unconstitutionality is found, the law must nevertheless be applied. On the other hand, the application of Art. 189 para. 4, first sentence, Cst. prohibits any substantive review and can only lead to the Federal Court declining to hear the case.
80 This limitation of the Federal Court's powers is based on the idea that the Federal Assembly and the Federal Council primarily make political decisions, which must not be reviewed by the judiciary for reasons of separation of powers. During parliamentary debates, it was pointed out that the Federal Court should not be placed above the Federal Council and the Federal Assembly. Paragraph 4 thus draws a line between the Federal Supreme Court and the two supreme political authorities of the Confederation. There is also a close relationship between Art. 189 para. 4, first sentence, Cst. and Art. 190 Cst., which pursue the same goal: to guarantee the separation of powers.
81 The term “acts” of the Federal Assembly and the Federal Council refers not only to individual and specific decisions, but also to general and abstract norms (normative acts), i.e., ordinances of the Federal Council and legislative acts of Parliament. Art. 189 para. 4, first sentence, Cst. also includes acts of the organs of the Federal Assembly (Art. 31 LParl) and delegations of the Federal Council (Art. 23 LOGA), it being specified that the latter have no decision-making power in any case (Art. 23 para. 2, second sentence, LOGA).
82 It is important to note that Art. 189 para. 4, first sentence, Cst. excludes direct or abstract review of the normative acts of the Federal Assembly or the Federal Council, independent of their application. It should be noted that the National Council refused to follow up on a parliamentary initiative calling for the creation of legal bases enabling the courts to carry out rapid abstract review of the norms relating to emergency ordinances of the Federal Council (Art. 185 para. 3 Cst. in conjunction with Art. 7d LOGA) and the Federal Assembly (Art. 173 para. 1 let. c Cst. in conjunction with Art. 7d para. 3 LOGA). On the other hand, it does not exclude the possibility that these normative acts may be reviewed for their conformity with the Constitution or the law when examining a specific case (indirect or concrete review). Art. 189 para. 4, first sentence, Cst. must, however, be read in conjunction with Art. 190 Cst., which provides that the Federal Court and other authorities are required to apply federal laws and international law. This provision prohibits the refusal to apply a federal law that is contrary to the Constitution, but does not prevent the review of its conformity with the Constitution (“Anwendungsgebot und kein Prüfungsverbot”).
83 According to Art. 189 para. 4, first sentence, Cst., and subject to any federal law to the contrary (para. 4, second sentence; see N. 86 ff. infra), ordinances of the Federal Assembly or the Federal Council are not challengeable before the Federal Supreme Court (see, however, the possibility for the cantons to challenge them by means of a direct action within the meaning of Art. 120 LTF, cf. N. 93 infra), federal laws, declarations of the National Council, the Council of States or the Federal Council (Art. 32 and 33 RCN; Art. 27 and 28 RCE), electoral acts of the Federal Assembly, in particular the election of members of the Federal Council, the Chancellor of the Confederation, judges of the Federal Supreme Court and the Attorney General (Art. 168 para. 1 Cst.), but also judges of the Federal Administrative Court, the Federal Criminal Court and the Federal Patent Court (Art. 168 para. 2 Cst. in conjunction with Art. 5 para. 1 LTAF, 42 para. 1 LOAP and 9 para. 1 LTFB), the approval of international treaties by the Federal Assembly (Art. 166 para. 2 Cst.) and their ratification by the Federal Council (Art. 184 para. 2, first sentence, Cst.), the guarantee of a cantonal constitution by the Federal Assembly (Art. 172 para. 2 Cst.), the declaration of validity or invalidity of a popular initiative by the Federal Assembly (Art. 139 para. 3 Cst.), decisions by the National Council's Immunity Committee (Art. 13a RCN) or the Council of States' Legal Affairs Committee (Art. 28a RCE) concerning requests to waive the immunity of members of the Federal Assembly (Art. 17a para. 5 LParl), and messages from the Federal Council on draft legislation (Art. 141 para. 1 ParlA).
84 The following are also considered immune acts within the meaning of Art. 189 para. 4, first sentence, Cst.: explanations by the Federal Council relating to popular votes (Art. 11 para. 2 PFA), the voting videos published by the Federal Chancellery to supplement the Federal Council's explanations of its vote, insofar as they correspond to the explanations of the vote adopted by the Federal Council (which would amount to an unlawful verification of the explanations of the vote themselves), the Federal Council's approval of master plans (Art. 11 Spatial Planning Act), entry bans or expulsions pronounced by the Federal Council when the interests of the country so require (Art. 184 para. 3 Cst.) or in order to avert existing or imminent disturbances that seriously threaten public order, external or internal security (Art. 185 para. 3 Cst.), decisions by the Federal Assembly to dismiss judges of the Federal Administrative Court, the Federal Criminal Court or the Federal Patent Court (Art. 40a para. 1 let. a and para. 3 LParl; Art. 10 LTAF; Art. 49 LOAP; Art. 14 LTFB), as well as the Federal Council's decision to open a consultation procedure and bring into force the partial revision of the Hunting Ordinance of November 1, 2023 (RO 2023 622, ch. IV p. 4).
85 Finally, it should be noted that there is a tension between the principle of non-contestability derived from Art. 189 para. 4, first sentence, of the Constitution, on the one hand, and – among others – Articles 6 and 13 of the ECHR and Article 29a of the Constitution, on the other. The former prohibits recourse to the Federal Court for certain acts, while the latter guarantee the right of access to a court, the right to an effective remedy, and access to a judge.
2. Exceptions: contestability (second sentence)
86 Art. 189 para. 4, second sentence, Cst. allows the legislature to provide for exceptions to the non-contestability of acts of the Federal Assembly and the Federal Council. This exception was not included in the Federal Council's draft. It was introduced by the Council of States Committee and then adopted by the Council itself at its meeting on March 5, 1998. The rapporteur emphasized that this gave the federal legislature the option of leaving jurisdiction where it deemed politically appropriate. Furthermore, the debates were particularly intense in the National Council. A minority proposal, which was ultimately not adopted, sought to allow individual and specific decisions of the Federal Council to be reviewed by the Federal Court. One parliamentarian who supported this proposal pointed out that it was necessary to accept a departure from the principle of separation of powers, because one of the basic rules of our constitutional state is that individual and specific acts of the executive authorities, i.e., decisions in cases of dispute, must at least be reviewed by a judicial body. Another member of parliament argued, on the contrary, that it should be possible for the Federal Council to take purely political decisions that are not subject to review, which would no longer be possible under the minority proposal. In the end, the intervention of Federal Councilor Arnold Koller, who assured that the Federal Council wanted in principle to rid itself of all judicial tasks, was undoubtedly decisive in narrowly defeating the minority proposal. It should be noted that the exception provided for in Art. 189 para. 4, second sentence, of the Constitution can be linked to the reform of the judiciary, which was accepted in a popular vote on March 12, 2000, and which notably introduced a new fundamental right guaranteeing access to the courts (Art. 29a of the Constitution, in force since January 1, 2007).
87 For political reasons, the legislature has largely refrained from providing for exceptions within the meaning of Art. 189 para. 4 of the Constitution. As an exception to the non-contestability of acts of the Federal Assembly and the Federal Council, mention may be made of Art. 33 let. a and b LTAF, which provides that certain decisions of the Federal Council and the organs of the Federal Assembly may be appealed before the FAC. These include, in particular, decisions taken in the field of employment relationships of federal personnel, including the refusal to authorize criminal prosecution (letter a).
88 The infringement of the guarantee of access to the courts (Art. 29a Cst.) is thus mitigated by the possibility for the legislature to provide for exceptions. The Federal Court also emphasized that, while the legislature does not intend to open the way for appeals to the Federal Court against entry bans issued by the Federal Council under Art. 189 para. 4, second sentence, of the Constitution, it is incumbent on the Federal Council, where the existence of a right of appeal is required by Art. 13 ECHR, to relinquish the decision-making power conferred on it by the Constitution and to leave the responsibility for taking the first-instance decision to the department or the Federal Office of Police.
89 However, it is clear that the mechanisms mentioned above do not make it possible to fill all the gaps in terms of judicial protection. On the one hand, it is unrealistic to think that the legislature can foresee all cases in which a challenge before a judicial authority must be made possible. On the other hand, the Federal Council could decide to exercise itself a decision-making power conferred on it by the Constitution, and not leave the decision of first instance to the department or the Federal Office of Police, wrongly considering that international law does not impose any right of appeal in a particular case. It is therefore important to emphasize that a right of appeal against decisions taken by the Federal Assembly or the Federal Council may arise from the application of international law, in particular Art. 6 para. 1 ECHR or Art. 13 ECHR, even if no exception within the meaning of Art. 189 para. 4, second sentence, Cst. is provided for in the law. We will mention the following three examples (see N. 90, 91, and 92 infra).
90 In the so-called “PKK” judgment, the Federal Court was seized of an appeal against a decision by the Federal Council to confiscate propaganda material belonging to the Kurdistan Workers' Party. The question arose as to whether the Federal Court could hear the appeal, as its jurisdiction was excluded under the provisions of the former Federal Act of December 16, 1943, on the organization of the judiciary (OJ; RO 60 269). The Federal Court held, in particular, that the confiscation of propaganda material on grounds of external and internal security concerned civil rights and obligations within the meaning of Article 6(1) of the ECHR. It then ruled that, in the event of a conflict, international law takes precedence over national law as a matter of principle, particularly when the international law provision is intended to protect human rights. Thus, despite the provisions of the former OJ, the Federal Court considered that it had to hear the appeal on the basis of Art. 6 para. 1 ECHR.
91 The Federal Assembly has the power to dismiss judges of the federal courts of first instance (Art. 10 LTAF; Art. 49 LOAP; Art. 14 LTFB). However, as we have seen, decisions taken by the Federal Assembly cannot be challenged under Art. 189 para. 4 of the Constitution. No exception has been provided for by the legislature in this area. According to the criteria set out in the judgment in Vilho Eskelinen and Others v. Finland, which apply to the dismissal of a judge, two conditions must be cumulatively fulfilled in order to exclude the protection of Art. 6(1) ECHR: first, the domestic law of the State concerned must expressly exclude access to a court in relation to the position or category of employees in question; second, this derogation must be based on objective grounds related to the interests of the State. The second condition will not, in principle, be met. Indeed, as the ECtHR has already ruled in Grzęda v. Poland, the impossibility for a judge “to access a fundamental guarantee for the protection of a defensible civil right closely linked to the preservation of the independence of the judiciary cannot be considered to be in the interest of a state governed by the rule of law.” Dismissal therefore constitutes a disciplinary procedure falling within the scope of Article 6(1) of the ECHR. Legal doctrine and the Administrative Commission of the Federal Court emphasize that this finding could prove problematic, insofar as the dismissal of a judge would fall within the scope of acts of the Federal Assembly that are not subject to judicial review. In this case, the primacy of international law should then take full effect and compel the Federal Court to hear such a challenge. It should be noted that the only disciplinary measure provided for by current law against judges of the federal courts of first instance is their dismissal by the Federal Assembly, which is unsatisfactory. In view of this, on January 23, 2025, the Control Committee of the Council of States (supported by the Control Committee of the National Council) tabled a parliamentary initiative aimed at developing the legal basis for introducing disciplinary supervision of federal court judges. In a legal opinion commissioned by the Control Committees to determine the constitutional and legal scope for introducing such oversight, it was proposed, among other things, to create a High Council of the Judiciary, which “would make it possible [...] to resolve the thorny issue of appeals against any decision to dismiss.”
92 As we have seen above (see N. 84 supra), the explanations of the Federal Council cannot be directly challenged before the Federal Court on the basis of Art. 189 para. 4, first sentence, of the Constitution. However, the Federal Court considered that “the overall state of information prevailing at the time of a popular vote may [...] be challenged.” It clarified in a subsequent ruling that this exception only applied in exceptional cases, when retrospective protection equivalent to reconsideration was possible. According to its case law, a right to review the regularity of a federal vote and to retrospective legal protection can be inferred directly from Art. 29 para. 1 Cst. (in conjunction with Art. 29a of the Constitution) “when a massive and decisive influence on the popular vote has become apparent later, after any appeal proceedings and after the Federal Council's decision to validate the vote.” At the stage of admissibility of the appeal, the existence of a serious error must be made plausible. Nevertheless, the Federal Court has extended its judicial review of political rights to this particular complaint. According to this case law, the subject of the dispute is therefore not the Federal Council's explanations, but the overall state of information prevailing at the time of a popular vote. While one author points out that the Federal Court has “pushed the limits of Art. 189 para. 4 of the Constitution,” another goes further, noting that it has exercised the power of discretion that belongs solely to the federal legislature under paragraph 4.
93 Finally, the majority of legal scholars agree that, in the context of direct proceedings (see N. 55 ff. supra), a canton may directly bring a decision or order of the Federal Council or the Federal Assembly before the Federal Supreme Court. The principle of non-contestability in Art. 189 para. 4, first sentence, of the Constitution would thus not apply to direct proceedings. It could indeed be considered that Art. 189 para. 2 of the Constitution and Art. 120 para. 1(a) and (b) of the Federal Supreme Court Act are exceptions within the meaning of Art. 189 para. 4, second sentence, of the Constitution.
About the author
Jérôme Gurtner holds a doctorate in law from the University of Neuchâtel and a certificate of specialization (CAS) in magistracy. He is currently a clerk at Court I of the Federal Administrative Court. His research and publications focus in particular on the law governing the legal profession, transparency in administration, the law governing new technologies and, more broadly, public law. He teaches as part of the CAS “Law and Artificial Intelligence” program at the University of Neuchâtel and co-edits the online commentary on the Federal Act on the Principle of Transparency in Administration. The author invites readers to send any comments to: contact@jeromegurtner.ch.
The author would like to thank Pascal Mahon, Professor Emeritus at the University of Neuchâtel, Jean Perrenoud, legal researcher, the editors of this commentary, Odile Ammann and Stefan Schlegel, as well as the two anonymous reviewers, for their suggestions and careful proofreading.
This publication reflects only the views of its author and not those of the Federal Administrative Court.
Recommended further reading
Biaggini Giovanni, art. 189 Cst., in : Biaggini Giovanni (édit.), BV Kommentar, Bundesverfassung der Schweizerischen Eidgenossenschaft, 2e éd., Zurich 2017 (cité : Biaggini).
Chaix François, art. 189 Cst., in : Martenet Vincent/Dubey Jacques (édit.), Constitution fédérale, Commentaire Romand, Bâle 2021.
Mahon Pascal, art. 189 Cst., in : Aubert Jean-François/Mahon Pascal (édit.), Petit commentaire de la Constitution fédérale de la Confédération suisse du 18 avril 1999, Zurich/Bâle/Genève 2003.
Reich Johannes, art. 189 Cst., in : Ehrenzeller Bernhard/Egli Patricia/Hettich Peter/Hongler Peter/Schindler Benjamin/Schmid, Stefan G./Schweizer, Rainer J. (édit.), Die schweizerische Bundesverfassung, St. Galler Kommentar, 4e éd., Zurich 2023.
Seferovic Goran, art. 189 Cst., in : Waldmann Bernhard/Belser Eva Maria/Epiney Astrid, Bundesverfassung, Basler Kommentar, 2e éd., Bâle 2025.
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