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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 Art. 45 of the Constitution—which refers to and specifies the general right of the cantons to participate in the decision-making process at the federal level—had no real counterpart in previous federal constitutions. These obviously already provided for the main mechanisms for the cantons' participation in federal policy, to which Art. 45 para. 1 of the Constitution now refers, insofar as federalism inherently implies a certain ability on the part of the federated entities to influence decision-making at the federal level (see infra N. 5 and 7). However, the very general principle of the cantons' right to participate in the Confederation's decision-making process was not expressly included. At that time, it represented at most an unwritten or implicit rule of constitutional law.
2 Art. 45 of the Constitution did not immediately take its current form when the new constitution was drafted, which was intended to be a simple formal update of the previous one. In keeping with this initial objective, the preliminary draft of the Federal Constitution did not include any provision dealing specifically and exclusively with the participation of the cantons, which, as mentioned above, had no equivalent in the law in force at the time. Nevertheless, it proposed to enshrine the idea that the cantons should be involved in the formation of federal policy, as was already the case in practice and as was already required in certain situations under the old Constitution of 1874. To this end, it provided for the inclusion—in a scattered manner—of the dual principle that the cantons "participate in the decision-making process at the federal level within the framework of the Constitution“ (Art. 32 para. 2 PD-Cst., entitled ‘Tasks’) and that they should also, like political parties and interested groups, ”in principle be consulted during the drafting of important legislative acts and international treaties, as well as on projects of major significance " (Art. 155 para. 1 AP-Cst., which became the current Art. 147 Cst., with a slightly different wording).
3 During the consultation process, however, the Conference of Cantonal Governments (CCG) and certain cantons, as well as other political actors, complained that this preliminary draft did not yet sufficiently emphasize the importance of the cantons' participation in “the drafting of federal legislation” or the Confederation's duty to inform and consult them appropriately on its projects. They made various proposals for amendments to Art. 32 para. 2 of the draft Constitution. The Federal Council took these complaints into account by devoting a specific and independent provision to these two issues (Art. 36 of the draft Federal Constitution), a provision that the Chambers did not amend in substance and which became the current Art. 45 of the Constitution.
4 It can therefore be considered that the provision discussed here primarily reflects a wish of the cantons. Nevertheless, it differs from the numerous proposals—which remained unheeded—made by some of the cantons and the CdC during the drafting of the 1999 Federal Constitution with a view to clarifying or even strengthening their rights of participation in the decision-making process at the federal level.
II. Context
5 From a systematic point of view, Art. 45 Cst. occupies a prominent place in the Federal Constitution. It is the fifth provision of the first chapter of Title 3 of the Federal Constitution, which deals with "relations between the Confederation and the cantons .“ The provision is thus the first of the Constitution's provisions dealing with an ”essential element“ of Swiss federalism, namely—as its title indicates—”participation [of the cantons] in the decision-making process at the federal level," which makes them true decision-making bodies—and not merely executive bodies—of the Confederation. Art. 45 Cst. can therefore be seen as “the” basic provision or ‘cornerstone’ of what is known as Swiss participatory federalism – sometimes also referred to as vertical federalism (described in German as either "partnerschaftlicher [or partizipativer] Föderalismus“ and ”Mitwirkungsföderalismus").
6 As will be seen below, however, the normative scope of Art. 45 Cst. is limited compared to other constitutional provisions that give more specific expression to this same participatory federalism (see infra N. 18 s.). . Its first paragraph merely states that the cantons participate in the federal political process “in the cases provided for by the Federal Constitution,” thus referring to other articles further on in the Federal Constitution (see infra N. 11) . As for the second paragraph, which requires the Confederation to inform the cantons of its plans in a timely and detailed manner, as well as to consult them when their interests are affected, it largely overlaps with other constitutional provisions that also give the cantons the right to be informed and/or consulted on certain federal matters (see infra N. 21 s.). That being said, Art. 45 of the Constitution complements all these provisions in a certain way, emphasizing their importance from the outset by placing them in context. Thanks to this provision, it is clearer that the participation of the cantons in the federal decision-making process does not serve solely to improve the quality of the Confederation's acts and projects, nor to gauge the acceptability of a bill or decree subject to referendum. The “association” of the cantons with federal policy is an essential aspect of Swiss federalism, the importance of which is undoubtedly growing in view of the continuing erosion of their powers. Increased and “compensatory” participation by the cantons in the federal decision-making process is necessary, otherwise federalism risks becoming an empty shell.
7 The association of “federal states” in the formation of the will of the federal state is not unique to Switzerland. All federal states have a certain level of participation by federated entities in their politics, which is one of the criteria that distinguishes them from decentralized or regionalized unitary states. Nevertheless, the cantons have rights of participation that other federated entities, such as the German or Austrian Länder, or even the US states, do not have. The latter, for example, have no right of collective referendum against federal laws. As for the Länder, they are not strictly speaking part of the federal constituent body, unlike the cantons, which can oppose constitutional revisions subject to a double majority of the people and the cantons (see infra N. 16). In these two neighboring federalist states, the upper house of parliament cannot prevent the adoption of any federal act, as the Council of States can do in Switzerland due to the perfect bicameral system (see Art. 156 para. 2 Cst.); nor does it have any other exclusive rights, unlike the US Senate. On the other hand, the German and Austrian Länder can instruct their delegates sitting in this same chamber – who represent members of their governments – or, at least, participate in all its sessions and intervene whenever they so request on matters concerning their Land. This enables them to exert direct influence on federal parliamentary procedure and even on the election of federal supreme court judges, whom the chamber must elect or propose to appoint in whole or in part, something that the Swiss cantons cannot do. Last but not least, in Switzerland, the participation rights of the cantons – and thus participatory federalism – could be subject to constitutional revision or even abolished, which is not necessarily the case in other federal states, such as Germany. In some respects, our large neighbor could thus be a source of inspiration both for those who wish to reform Swiss federalism and for those who wish to protect it from any fundamental revision.
8 In federal states that have succeeded confederations of states, such as Switzerland, the participation rights of federated entities in the federal decision-making process serve in particular to compensate for the loss of autonomy that they have consented to and continue to consent to. It is therefore logical that the Federal Constitution contains no provision for a general right of participation by the Confederation in the cantonal decision-making process, including, for example, the right to be systematically consulted before the adoption of cantonal legislation. This does not mean that the federal government in Bern is prohibited from exercising any influence on cantonal politics. A certain degree of interference by the Confederation in the cantonal political process is inevitable, particularly because of the primacy of federal law (Art. 49 para. 1 Cst.) – which the Federal Assembly ensures is respected by “guaranteeing” the cantonal constitutions (Art. 51 para. 2 Cst.) – as well as in areas where the Federal Constitution requires the Confederation to cooperate with the cantons and coordinate with them in the exercise of their respective powers, where appropriate by establishing joint bodies (see, for example, Art. 61a para. 2 and 63a para. 4 Cst.). . The same applies when the Confederation has to act as an arbitrator or simply as a mediator in inter-cantonal and international relations (see, for example, Art. 48a, 56 para. 3 and 172 para. 3 of the Constitution) or when it has to finance certain cantonal activities (see, for example, Art. 64 para. 2 and 77 para. 3 of the Constitution).
III. Commentary
9 As already mentioned, Art. 45 Cst. has two parts: the first paragraph is essentially symbolic, recalling the existence of the various rights of participation of the cantons in federal policy provided for in the Federal Constitution (see infra N. 10 ff.), while the second specifically establishes one of these rights, namely the right of the cantons to be informed of and consulted on federal projects that affect their interests (see below N. 21 ff.).
A. Rights of the cantons to participate in the federal decision-making process (para. 1)
1. General
10 In its French version, Art. 45 para. 1 of the Constitution stipulates that the cantons participate in the formation of the will of the Confederation “in the cases provided for by the Federal Constitution” and, in particular, in “the drafting of legislation.” The German and Italian versions of the provision each deviate somewhat from this text, stipulating that the cantons participate in this same decision-making “in accordance with the Federal Constitution” (“nach Massgabe der Bundesverfassung”) and, specifically, in “the development of law” (“an der Rechtssetzung” and “all'elaborazione del diritto,” respectively "). These slight differences of stylistic origin have no fundamental implications, even if one might be tempted to believe otherwise by mistakenly attributing specific weight to the French version of the provision, which seems slightly more restrictive, as we shall see (see infra N. 13 and N. 20).
11 In any case, it is clear that, regardless of the language version, Art. 45 para. 1 of the Constitution primarily has a declaratory function, recalling that the cantons participate in the federal decision-making process “in the cases provided for” (or “as provided for” [“secondo quanto previsto”]) by the Federal Constitution or, simply, “in accordance with” it (“nach Massgabe”). The provision thus constitutes a referral rule to the numerous provisions scattered throughout the Federal Constitution that envisage or impose such participation in various ways. Some participation rights apply only to specific areas, such as foreign policy or education (see Art. 55 and 62 para. 6 Cst.). Others apply only to specific types of acts, regardless of the area of competence concerned, such as the right to comment on important legislative acts and other far-reaching projects during the preparatory work, as well as on important international treaties (Art. 147 Cst.), or even the right to submit a cantonal initiative or request a referendum (Art. 160 para. 1 and 141 para. 1 Cst. ). The cantons also have organic participation rights, such as the right to have a say as co-holders of federal constituent power (Art. 140 para. 1 and 195 Cst.) and to have representatives in one of the two chambers of the Federal Assembly as the supreme power of the Confederation (Art. 150 para. 2 Cst. and Art. 148 para. 1 Cst.). There is still some doctrinal controversy as to whether certain other cantonal prerogatives should be classified as participation rights. The question arises, for example, in connection with the implementation of federal law by the cantons (see Art. 46 Cst.), which does not, strictly speaking, lead them to influence the federal decision-making process, but rather to execute it once it has been completed. In our view, this implementation represents above all a general principle of division of powers that gives concrete expression to the principle of subsidiarity (see Art. 5a Cst.). In any case, these controversies are of no real practical importance since, as mentioned above, the participation rights of the cantons, whatever they may be, do not enjoy any particular constitutional protection (guarantee of immutability), unlike, for example, those of the German Länder (see supra N. 7).
12 All these rights, which may be cumulative, apply in particular to the “drafting of legislation,” which Art. 45 para. 1 Cst. itself mentions as a prime example of cantonal participation. However, the participation rights provided for in the Constitution actually concern a wide variety of decision-making processes (preparation and conclusion of international treaties, federal strategic planning decrees, sectoral plans, plan approval procedures, etc.). Only certain non-parliamentary acts of minor importance are a priori excluded from any form of participation by the cantons under the Constitution. In this way, the cantons can in theory attempt to influence almost all important political decisions of the Confederation, although their actual influence on the adoption of certain federal acts through their representation in the Council of States alone remains (very) limited (e.g., on the federal budget; see N. 15). Another important point is that the cantons also have no influence, even indirect, on the case law of the Federal Supreme Court, all of whose members are elected solely by the Federal Assembly (joint chambers) (cf. Art. 168 para. 1 and Art. 157 para. 1 let. a Cst.). . Indeed, the Federal Supreme Court must not (e.g. within the meaning of Art. 45 para. 2 Cst.; see infra N. 27), nor can it, request observations from cantons that are not directly involved in proceedings before it, even if the judgment to be rendered involves deciding a constitutional issue that is potentially fundamental to them. Perhaps there is room for improvement here from a federalist point of view.
2. Participation of the cantons in the legislative process
13 As stated in Art. 45 para. 1 of the Constitution, the Federal Constitution allows the cantons to participate, in particular, in “the drafting of [federal] legislation” at various stages of the adoption process. It should be noted that, contrary to what the French text might suggest, this participation does not only concern federal laws, but all normative acts of the Confederation; it therefore also applies to ordinances of the Federal Assembly or the Federal Council, constitutional revisions, and accession to international treaties of a normative nature, which is clearer in the German and Italian versions of Art. 45 para. 1 of the Constitution, which refer to participation in the development of “law” (“an der Rechtsetzung” and “all'elaborazione del diritto”; see supra N. 10).
14 The cantons may participate in the adoption of federal law at a very early stage, during the pre-parliamentary phase, insofar as the cantons have their own right of legislative initiative under Art. 160 Cst., which some of them exercise quite frequently. Cantonal law specifies the body entitled to exercise this right, which in practice allows either the cantonal parliament, the cantonal electorate, or, very rarely, the cantonal government to propose the adoption of a federal law directly to the federal chambers. However, the Chambers may refuse to act on such proposals after a preliminary review procedure, which in practice quickly curbs the cantons' ambitions. It is therefore considered that the participation of the cantons in the drafting of federal legislation is primarily reflected in the consultation procedure for draft legislation (laws or ordinances) prepared by the Federal Council (Art. 147 Cst.), During these procedures, the cantonal governments defend the cantonal position, sometimes subject to popular approval, and the CdC is also invited to express its opinion. This is perhaps the stage at which the cantons can most directly influence federal legislation, as illustrated by the genesis of Art. 45 Cst. (see supra N. 2 s.). Although the consultation procedure is intended for various interlocutors (see Art. 147 Cst.), the cantons are particularly important players. It should be noted that a consultation procedure must also be conducted when a bill is not prepared by the Federal Council, but directly by Parliament through its committees.
15 It is generally considered that the cantons also participate in the parliamentary phase of the adoption of federal laws and constitutional revisions initiated by the authorities through the Council of States, which is composed of two representatives per canton (only one for the former “half-cantons”) , which must systematically approve such projects due to the perfect bicameralism that characterizes Swiss federalism. From a purely legal point of view, however, the participation of the cantons in the federal decision-making process is limited to the appointment of the representatives in question. Once in place, they vote freely, without instructions from the cantons (Art. 161 para. 1 Cst.), unlike in other federal states where the upper house of parliament is made up of genuine “delegates” or emissaries from the federated states (see above N. 7). It would also appear that, in practice, members of the Council of States are more influenced by the political line of their parties than guided by the specific interests of their respective cantons. Consequently, except in cases where the interests of the cantons, particularly financial interests, are directly affected, this chamber no longer acts as a spokesperson for the cantons, even though members of parliament traditionally like to claim the opposite during debates. In short, the importance of the cantons' participation in the federal legislative process through the Council of States, sometimes described as “indirect,” should be put into perspective. Its effectiveness could nevertheless be enhanced by having members appointed by the cantonal parliament for a short term, something that has not been done for a long time. As things stand, it is questionable whether, during the parliamentary phase, the participation of the cantons is not more informal—at least for the most powerful among them—through a certain amount of lobbying of parliamentarians, which is certainly not provided for, but neither is it excluded, by the Federal Constitution (see infra N. 20).
16 Finally, the cantons may in principle still intervene during the post-parliamentary phase of the adoption of federal laws, which must be submitted to a referendum if eight cantons so request through their parliaments or another body designated by cantonal law (see Art. 141 Cst. and 67 LDP). This right of referendum has hardly ever been used to date. It has only been successful twice, on similar issues, for which the population had also requested a referendum: once in 2003 in connection with an amendment to acts concerning the taxation of couples and families, the taxation of housing, and stamp duties, which was ultimately rejected in a vote, and again in 2025 in connection with the Federal Act of 20 6.2025 on the individual taxation of married couples. The main advantage of the cantons' right of referendum is therefore that it strengthens their position during the consultation phase or in their lobbying activities. It should be noted that, from this perspective, the cantons would have every advantage in conferring the exercise of such a prerogative on their governments, which is currently rarely the case, as this could greatly facilitate the coordination of their actions. In comparison, the cantons are inevitably key players in any constitutional revision, as well as in any urgent legislation that lacks a constitutional basis (Art. 140 para. 1 let. a and c Cst.), since these ultimately require the agreement of the majority of the cantons, in addition to that of the people. The federal authorities must therefore take their positions into account at an early stage, both during the consultation process and during the parliamentary phase, if they wish to see such projects through to completion. It should be noted in this regard that cases in which the cantons have blocked a constitutional revision desired by the people have tended to increase in recent decades, whereas they were rare in the past, which underlines the importance of this right of participation, sometimes seen as the most important of all. Nevertheless, it is increasingly criticized, as it currently gives certain small cantons, mainly German-speaking and with a so-called conservative majority, political weight that is sometimes considered excessive.
17 The participation of the cantons in the approval of international treaties is the subject of specific provisions in Art. 55 of the Constitution, as well as in Art. 140 para. 1 let. b and c and Art. 141 para. 1 let. d of the Constitution. It is regulated differently depending on the importance of the treaties concerned and their effects on cantonal powers.
3. Normative scope: criticism and perspective
18 In general, it may seem paradoxical that a norm expressly relating to the process of drafting federal legislation does not comply with one of the main axioms of legislative drafting, namely that of avoiding superfluous declarative legislative references. It should be emphasized here that the Constitution differs from laws in that it has a function that is almost as much political as it is legal, and that a symbolic norm such as Art. 45 para. 1 Cst. therefore has a legitimate place in it.
19 When interpreting this provision, lawyers must therefore resist the temptation to attribute to it a normative significance that it does not necessarily have a priori, while taking care not to confine it to a purely informative function. A middle ground would be to consider Art. 45 para. 1 Cst. as a programmatic provision highlighting the importance of cantonal participation in the federal decision-making process. The provision would thus serve as a guideline—among others—in interpreting the Constitution and resolving any tensions that may exist between its various provisions. From this perspective, it would be up to the federal legislature to take special account of the importance of the cantons' participation rights when considering regulations that implement or restrict them (e.g., the LCo and the LParl), and the Federal Court would have to take it into account in its reasoning when developing case law that could limit the cantons' ability to influence federal policy (e.g., on the intervention of cantonal authorities in federal votes; see infra N. 20).
20 The essentially symbolic function of Art. 45 para. 1 of the Constitution in any case prohibits attributing any limiting effect to it. The provision in no way prevents the cantons from participating in decision-making in other cases and/or in ways other than those provided for in the Federal Constitution, even though the French and, to a lesser extent, Italian versions might suggest the contrary by stating that they may only do so “in the cases provided for by the Federal Constitution” (or “secondo quanto previsto dalla Costituzione federale”). Other forms and methods of informal participation by the cantons in the federal decision-making process are possible as long as they do not contravene federal constitutional law, which is clearer in the German version of Art. 45 para. 1 Cst. (“nach Massgabe der Bundesverfassung”), but also implicitly from the cantons' general right to information provided for in Art. 45 para. 2 Cst. The cantons, through their governments or inter-cantonal bodies, may therefore implement informal participation mechanisms, for example by hiring lobbyists or organizing meetings to be heard by parliamentarians and the federal administration, and, if necessary, joining forces to coordinate their lobbying activities in Bern, as they do in practice, as long as their behavior does not violate the principle of federal loyalty (see Art. 44 para. 2 Cst., which could be the case if a systematic and misleading smear campaign were launched in connection with a federal project) . This approach is sometimes considered to be the most effective. Similarly, the fact that the cantons have various opportunities to participate in the formation of the will of the Confederation does not automatically preclude their involvement in a federal referendum campaign. Canton authorities may therefore participate in debates and issue voting recommendations in federal referendums, but only in certain specific situations, in accordance with federal case law, which unfortunately largely ignores the importance of canton participation in federal politics, as implicitly enshrined in Art. 45 Cst. It is more difficult to determine whether other formal participation rights, which are more invasive and not expressly provided for in the Constitution, could be introduced into law, such as a right of veto for the cantons on Federal Council ordinances, or even the right to request their amendment, as requested by the CdC in the consultation on the preliminary draft of the Constitution. However, these questions certainly do not fall within the interpretation of Article 45(1) of the Constitution, but rather within that of other provisions of the Federal Constitution, such as Article 182(1) of the Constitution. It should be noted that, within the framework of Bilateral Agreements III, the Federal Council is considering introducing new formal participation rights for the cantons that are not provided for in the Federal Constitution (e.g., the possibility for the cantons to request the Federal Council to activate the safeguard clause).
B. Duty of the Confederation to inform the cantons of its plans and to consult them (para. 2)
1. General
21 By stipulating that the Confederation “shall inform the cantons of its plans in good time and in detail” and “shall consult them when their interests are affected,” Art. 45 para. 2 of the Constitution confers on the cantons certain specific participation rights intended to enable them to influence the federal decision-making process. From a systematic point of view, the provision establishes two distinct rights in each of its two sentences: on the one hand, a right for the cantons to be informed – in good time – of (almost) all federal projects (1st sentence; infra N. 30 ff.) and, on the other hand, a right for the cantons to be consulted when their interests are affected (2nd sentence; infra N. 34 ff.).
22 In doing so, Art. 45 para. 2 Cst. does not have a purely declaratory and symbolic function here, unlike the previous paragraph. Admittedly, the duties to inform and consult imposed on the Confederation by Art. 45 para. 2 of the Constitution impose on the Confederation overlap in part with those provided for in other provisions of the Federal Constitution. Nevertheless, Art. 45 para. 2 of the Constitution has its own scope in relation to these provisions, to which it applies cumulatively where applicable.
23 This aspect is important. In fact, Art. 45 para. 2 Cst. grants, to a certain extent, “broader” participation rights than Art. 147 Cst, which, as a reminder, gives the cantons the right to give their opinion on important legislative acts and other projects of major significance during the preparatory work. Unlike this provision, Art. 45 para. 2 concerns first and foremost (almost) all federal projects, and not only those of special importance; some projects of lesser importance may therefore have to be submitted to the cantons for consultation within the meaning of Art. 45 para. 2 Cst., even though Art. 147 Cst. does not require this (see infra N. 26 ff.). Art. 45 para. 2 of the Constitution also establishes a duty to consult the cantons that is not limited to the ordinary consultation procedure, but may also apply to other stages of the federal decision-making process (see below N. 37 ff.). . From this perspective, it can be argued, as we shall see, that Art. 45 para. 2 of the Constitution requires the Confederation to involve the cantons at an early stage in the drafting of certain preliminary drafts of acts, i.e. well before the consultation procedure provided for in Art. 147 of the Constitution (see below N. 37), or even that it requires the Confederation to seek their opinion again after this phase in certain cases, when a draft is subject to substantial, totally unexpected changes that affect the interests of the cantons in a new way (see below N. 38 ff.). This potential scope of Art. 45 para. 2 Cst. remains largely overlooked and neglected in practice.
24 While Art. 45 para. 2 of the Constitution grants the cantons genuine rights to information and consultation (see, on their justiciability, infra N. 43 ff.), it does so using several undefined concepts, such as “in good time” or “when their interests are affected.” This imprecision gives the Confederation a certain margin of discretion in its implementation (see infra N. 31 and 35), which does not necessarily imply the adoption of a federal implementing law.
25 Nevertheless, Art. 45 para. 2 of the Constitution is now implemented by various legal regulations of varying degrees of precision. Some of these – such as those relating to legislation on spatial planning, nuclear energy, national roads and railways – predate the Constitution, which in this respect did nothing more than codify duties that the Confederation had already imposed on itself for a long time. Other regulations were adopted after 2000 under the new Constitution. Examples include Art. 18 para. 1 let. b of the Federal Act of October 7, 2005, on Federal Finances (FFA), adopted as part of the introduction of the debt brake precisely in order to implement Art. 45 para. 2 of the Constitution, and of course the Consultation Act (CoA). However, the latter primarily aims to implement the consultation procedure during preparatory work required by Art. 147 of the Constitution and not directly the participation rights of the cantons provided for in Art. 45 para. 2 of the Constitution.
2. Concept of “projects” of the Confederation
26 The concept of "projects " (Vorhaben, progetti) that must be the subject of information and, where appropriate, consultation with the cantons is not defined in Art. 45 para. 2 Cst., nor anywhere else in the Constitution or federal legislation. However, a systematic reading of the Constitution suggests that the constituent power intended to give a broad scope to the provision which, unlike Art. 55 and 147 of the Constitution, does not apply only to decisions affecting the essential powers or interests of the cantons, or to important or “far-reaching” projects .“
27 The term ”project" in Art. 45 para. 2 Cst. is thus likely to cover a very wide range of situations. It may refer not only to federal legislative projects, such as draft laws or ordinances, but also to other federal projects which, without necessarily laying down general and abstract rules, nevertheless have a general scope, such as planning decisions or financial or budgetary decisions to be taken by federal decrees or Federal Council decrees. In addition, the use of the term “Vorhaben” in German seems to indicate that the Confederation's duty to provide information and consultation must in principle not only occur before the acts have been fully drafted, but that in certain circumstances it may already be required when the acts in question are still at the stage of mere declarations of intent or vague programs (see infra N. 31 and N. 37). On the other hand, the concept does not cover “drafts” of decisions or judgments that may be drawn up by an appellate authority, judicial or otherwise, before it rules.
28 It is immediately apparent that this broad interpretation of Art. 45 para. 2 of the Constitution and the concept of “drafts” contained therein may conflict with other constitutional provisions. How, in fact, can the cantons be informed or even consulted in the event of an emergency or crisis requiring the rapid adoption of measures under emergency law within the meaning of Art. 173 para. 1 let. b or Art. 185 Cst., or when it is necessary to ensure the confidentiality of a project relating to national security within the meaning of Art. 57 Cst.? The apparent contradictions that may exist between Art. 45 para. 2 of the Constitution and the aforementioned standards must first be resolved according to a certain “practical concordance,” as in the case of the amendment to the LCo adopted after the COVID crisis with the aim of exempting laws and ordinances of the Federal Assembly and the Federal Council based directly on the Federal Constitution from the consultation procedure. To compensate for this new exception to the consultation procedure, a new Art. 10 LCo – inspired in particular by the Epidemics Act (LEp) and the COVID-19 Act – now provides that, when no consultation procedure is carried out due to the urgency of the situation, the competent authority (the Federal Council or a parliamentary committee) must seek, “as far as possible, the opinion of the cantonal governments and the circles particularly concerned by the project,” by conducting an “informal consultation” when the time comes, which may, in principle, take the form of a brief email. This legal provision thus reaffirms the importance of consulting the cantons, while making it somewhat more flexible.
29 Finally, under Article 45(2) of the Constitution, the Confederation is only required to inform or consult the cantons on “its” own projects. This excludes projects from the cantons or the Swiss people, which are not organs of the Confederation (Bund), which is the only body concerned by the provision, as its text indicates, but of the “Swiss Confederation” as a whole (Schweizerische Eidgenossenschaft). Thus, certain projects that the Confederation must only approve or validate, such as cantonal constitutional revisions or popular initiatives, fall outside the scope of Art. 45 para. 2 of the Constitution, certain projects that the Confederation must only approve or validate, such as cantonal constitutional revisions or popular initiatives. It should be noted that, since this type of project cannot be modified by the federal authorities, there would be almost no reason for consultation in any case. On the other hand, if a counter-proposal is put forward to a popular initiative, a consultation must be organized within the time limits set by Art. 97 para. 2 of the Political Rights Act. In short, the projects covered by Art. 45 para. 2 of the Constitution are primarily those of the Federal Assembly, the Federal Council, and its administration. It is more difficult to determine whether decentralized institutions such as the Swiss National Bank, Swiss Post, or Swiss Federal Railways are also subject to these obligations. The question is partly academic, as the law often already requires them to inform and/or consult the cantons before taking certain decisions.
3. Information “in good time” and “in detail”
30 According to Art. 45 para. 2 of the Constitution, the Confederation must in principle inform the cantons of its projects “in good time” and “in detail.” These two specifications are intended to ensure that the cantons are in a good position to decide whether or not they wish to be involved in the development of a federal project and, if so, how. Art. 45 para. 2 of the Constitution thus establishes a general framework for the exercise of the cantons' participation rights, while emphasizing their role as partners of the Confederation.
31 However, the provision leaves the Confederation considerable leeway as to when and how it informs the cantons. This is particularly true insofar as it specifies, in a relatively open manner, that the information must be provided “in good time” (rechtzeitig, tempestivamente). Does this mean that the information must be provided at the most useful time for the cantons, or at the most opportune time from the Confederation's point of view? The answer may, a priori, depend on the circumstances. It could be argued, for example, that even though the Confederation must inform the cantons of all its plans, it should be able to temporarily suspend this duty in certain situations, particularly in cases of emergency or extraordinary circumstances (see also supra N. 28). With regard to ordinary plans, it can otherwise be considered that it will generally be necessary – and sufficient – for the cantons to be informed at a stage when the outcome is still open, so that they can attempt, if they deem it necessary, to influence the federal decision-making process by exercising their various rights of participation or by engaging in a certain amount of lobbying. However, determining this moment is a matter for the Confederation's broad discretion.
32 The requirement that the information provided must be “detailed” (umfassend, compiutamente) according to Art. 45 para. 2 of the Constitution is relatively vague in terms of content. The German and Italian terms suggest that the information to be provided to the cantons must be complete and comprehensive, i.e., sufficiently broad to enable them to understand the project as a whole and its implications. By using the adjective “detailed,” the French version refers more to a meticulous and detailed description of the various elements of a project. To ensure that the information provided is not merely a token gesture, the Confederation will therefore have to strike the right balance between communicating clearly and comprehensively without drowning the essence of the message in too many details. It will also have to take into account the fact that the obligation to provide information under Article 45(2) of the Constitution goes beyond a simple general duty to inform the public about its activities, such as that imposed on the Federal Council under Article 180 of the Constitution.
33 With regard to language, the federal authorities are required to use the three official languages of the Confederation in their communications with the cantons, although the use of Romansh is not mandatory in the canton of Graubünden (see Art. 70 para. 1, 2e sentence, Cst., which provides for its use only in relations with “persons” using that language). They may not use one of these languages exclusively, as this would jeopardize the objective of informing the cantons, which are not expected to understand a project explained in any language, particularly when it concerns a new and technical field.
4. Consultation with cantons “affected in their interests”
34 Art. 45 para. 2 not only imposes a general duty on the Confederation to inform the cantons about its projects, but also requires it to consult them when the projects in question affect their interests. From this point of view, the cantons enjoy a kind of right to be heard, of an institutional nature, allowing them to submit comments to the Confederation.
35 When does a federal project affect the interests of one or more cantons within the meaning of Art. 45 para. 2 of the Constitution? Legal doctrine generally advocates a broad interpretation of the provision, arguing that the cantons should be consulted not only whenever a project restricts their autonomy or affects their area of competence, but also whenever it has other forms of repercussions for them. In this latter regard, inspiration could be drawn from the practice of the Federal Supreme Court, which recognizes that a canton's interests worthy of protection within the meaning of Art. 89 para. 1 of the Federal Supreme Court Act are affected when the project or act in question significantly affects its sovereign powers (“in ihren hoheitlichen Befugnissen berührt”), i.e. it affects its important or essential public interests. This would include, in particular, cases where a federal project would significantly affect a canton's financial interests or would be likely to cause significant emissions affecting a large proportion of its inhabitants. It should be noted that, from this point of view, consultation may be required when a project affects the interests of one or more municipalities in the canton, interests which are similar to those of the canton. However, this will not be the case if a project only affects the private interests of individuals, even if they are important to the canton (e.g., a major company or taxpayer). Thus, it is not apparent that the cantons of Geneva and Zurich have a right to be specifically consulted within the meaning of Art. 45 para. 2 of the Constitution in the case of a proposed amendment to the FINMA Ordinance on Financial Institutions, nor do the cantons of Bern and Neuchâtel in the event of a revision of the ordinance regulating the use of the name "Switzerland for watches.
36 From this perspective, and despite the reservation mentioned above, the right of the cantons to be consulted under Art. 45 para. 2 of the Constitution can apply to a wide variety of cases. These include not only legislative proposals (laws, ordinances, and even directives), but also to national construction projects such as those concerning roads and rail transport, those relating to land use or agricultural planning, or even certain budgetary or financial decisions.
37 In general, the duty to consult laid down in Art. 45 para. 2 Cst. is of particular practical importance for projects that are not necessarily subject to a consultation procedure within the meaning of Art. 147 Cst., i.e., projects that would affect the interests of one or more cantons without being a major legislative project or other project of significant scope. That said, it can be argued that Art. 45 para. 2 Cst. may also have its own significance in relation to important legislative proposals when these affect the essential interests of the cantons. For example, it may be justified to consult them even before the official consultation procedure provided for in Art. 147 of the Constitution, at an earlier stage of the preliminary draft, when the outcome of the project and its possible variants is more open. In any case, since 2016, federal departments and the Federal Chancellery have been required to to involve the competent cantonal bodies in an appropriate manner in the drafting of their preliminary draft laws or ordinances when their implementation is wholly or partly the responsibility of the cantons and requires considerable human and financial resources on their part or involves the reorganization of cantonal bodies or, alternatively, substantial amendments to cantonal law.
38 Art. 45 para. 2 Cst. may also have its own significance in relation to Art. 147 of the Constitution in relation to legislative proposals that would be subject to major revisions during the parliamentary review phase, insofar as such amendments would have the effect of affecting the interests of the cantons – or only some of them – in a completely new and unexpected way. In our view, consultation with the (affected) cantons should be required in such cases, even though the LCo does not naturally provide for this, since it only aims to regulate the participation of the cantons in the preparatory work. This would require a revision of the LParl, which currently only provides for the committees to hear representatives of the cantons. It should be noted that the need for such a revision was immediately recognized by the Federal Council when drafting the new Federal Constitution and its future Art. 45 para. 2 Cst..
39 Until now, the Federal Chambers have always been reluctant to supplement the ParlA or, possibly, the CoA, which would undoubtedly complicate their work. When the CoA was adopted, some organizations suggested that parliamentary committees be required to organize a new consultation procedure when they substantially amend a Federal Council bill. This proposal has gone unheeded. Similarly, an initiative by the Political Institutions Committee of the Council of States aimed at improving the participation of the cantons in the parliamentary legislative process (in particular by creating a right for the cantons to be heard in committees) was opposed by the committee of the same name in the National Council. The latter considered, among other considerations, that the interests of the cantons were in any case taken into account in the parliamentary process.
40 With regard to the modalities of consultation, the cantons must be consulted directly and individually, in practice through their executives, even though Art. 45 para. 2 of the Constitution does not specify this. The LCo now expressly requires this governmental channel to be used for projects falling within its scope, in order to block from the outset any attempt by the Confederation to consult the cantons through other bodies (in particular parliamentary or inter-cantonal bodies) or authorities (e.g., simple administrative departments). The main aim is to consult all cantons in a uniform manner and to ensure that the Confederation's interlocutor is the same body in all cantons. This does not mean, however, that the position taken by the cantonal governments cannot or should not also be validated by the cantonal parliament or, as may be the case in some cantons, by the population. It is up to the cantonal legislature to determine who in the canton is responsible for drafting opinions and which authorities will participate in the consultation, if any.
41 At first glance, the Confederation fulfills its consultation obligation by gathering the opinions of the cantonal governments whose interests are affected. It could be argued that it also has a duty to respond and provide reasons when it deviates from these opinions, in order to show that it has taken its duty to consult seriously and respected it. A response could then be seen as a sign of respect on the part of the Confederation (see Art. 44 para. 2 of the Constitution). It should be noted, however, that a proposal to oblige the Confederation to state the reasons that led it to deviate from an opinion expressed by a significant number of cantons was not retained at the end of the consultation procedure on the draft new Federal Constitution; a historical interpretation of the norm must therefore probably lead to recognition of a qualified silence on the part of the constituent on this point. That said, it is in any case clear that the Confederation has no obligation to take the opinions of the cantons into account in substance – i.e., to implement or enforce them – pursuant to Art. 45 para. 2 of the Constitution, even if they are unanimous. This does not, of course, mean that it is exempt from any constitutional obligation to take into account the interests of the cantons and the opinions they may have expressed during a consultation: such an obligation may exist in connection with certain projects for which the Confederation has a duty of coordination under other constitutional provisions (see, for example, Art. 57 para. 2, 61a para. 2, and 75 para. 2 of the Constitution) or in which it is expressly provided that the opinions of the cantons carry particular weight (see, for example, Art. 62 para. 6, 76 para. 6, 89 para. 5, 100 para. 2, and 110 para. 2 of the Constitution).
42 The cantons, for their part, have no obligation—at least no legal obligation—to give their opinion. For them, this is at most an obligation (Obliegenheit), the non-fulfillment of which may weaken their position in the event of a legal challenge to the federal bill. In particular, they must bear in mind that their standing to appeal against such a bill may depend on their participation in the drafting phase. Similarly, it cannot be ruled out that, in the event of a legal challenge to a bill, the competent authority may deny them the right to invoke certain arguments or elements that they did not deem useful to raise during the consultation phase, on the grounds that their late invocation would be contrary to the general principle of good faith (Art. 5 para. 3 Cst.) or federal loyalty (Art. 44 para. 2 Cst.; see also infra N. 46).
5. Justiciability
43 As for the possibility of complaining to a judicial authority about a violation of Art. 45 para. 2 Cst. and, more specifically, of the Confederation's duty to consult the cantons likely to be affected by its projects, has not yet given rise to any case law. Furthermore, it is hardly discussed in doctrine, although it should be noted that doctrine rightly answers in the affirmative, without however elaborating greatly on the matter.
44 The issue appears to be essentially academic. Article 45(2) of the Constitution has already been extensively codified in law, which is generally respected in practice, and in other cases, the Confederation has considerable discretion as to how to apply it. Finally, it is certain that an individual cannot obtain the annulment of a project or act implementing it by complaining to a court that the project in question was adopted in violation of the duty to consult the cantons. It is not possible for them to invoke in their favor the violation of a procedural right that does not belong to them and that does not harm their interests worthy of protection. As for the cantons, which are therefore the only ones harmed in the event of non-compliance with Art. 45 para. 2 of the Constitution, they are traditionally reluctant to initiate proceedings against the Confederation.
45 That said, if one day one or more cantons decided to challenge in court a federal bill that they believed had been drafted or adopted in violation of Art. 45 para. 2 of the Constitution, their action would undoubtedly raise a series of difficult legal questions related, in particular, to the unprecedented and very specific nature of such a dispute. While it seems impossible to anticipate all of them here, let alone predict with certainty how they would be resolved by the courts, we can attempt to outline a few possible answers, depending on the nature of the project in question and the authority that adopted it.
46 In principle, the option of bringing an action before the Federal Supreme Court does not appear to be closed from the outset under the combined application of Art. 189 para. 4 of the Constitution and 120 para. 1 let. b LTF in cases where a federal law or ordinance has been adopted – or is in the process of being adopted – in violation of the duty to consult the cantons within the meaning of Art. 45 para. 2 of the Constitution. It can indeed be argued that this would constitute a “public law dispute” between the Confederation and the cantons that could be decided by the Federal Supreme Court as the sole instance in accordance with the second provision. In such a case, however, the Federal Supreme Court would first have to clarify whether or not it can rule on any conclusions seeking the annulment (total or partial) of the the contested act in light of Articles 189(4) and 190 of the Constitution, which the latter provision seems to prevent in the case of federal laws, which judges are required to apply and, therefore, to respect. In comparison, the annulment of a Federal Council ordinance could be considered, at least in principle. There could still be numerous legal obstacles to such a measure. In particular, it would be necessary to consider whether the cantons concerned could be accused of complaining too late about a violation of their right to be consulted within the meaning of Art. 45 para. 2 of the Constitution, in violation of the rules of good faith and federal respect (see Art. 5 para. 3 and 44 para. 1 and 2 of the Constitution). This could be the case if they had never taken any steps to be included in the development of a federal project affecting their interests, even though they knew it was in preparation. It also remains to be seen whether the Federal Court would consider the violation of Art. 45 para. 2 of the Constitution as “cured” by the filing of the action, as it already widely accepts in the case of appeals against decisions rendered in violation of the fundamental right to be heard within the meaning of Art. 29 para. 2 of the Constitution. In our opinion, such a solution would probably be necessary if it appeared—particularly in view of the Federal Council's response to the action brought—that the Confederation would in any case adopt the same act after hearing the arguments of the cantons whose rights of participation had been infringed and/or that annulment of the ordinance would pose serious problems of legal certainty.
47 By the same token, the route of legal action before the Federal Court should also be open in principle against other projects falling within the remit of the Federal Council or even the Federal Assembly (infrastructure projects, sectoral plans, etc.) that may have been adopted in violation of Art. 45 para. 2 of the Constitution, again in application of Art. 120 para. 1 let. b LTF. In such cases, it can be assumed that, even after finding a violation of the cantons' right of participation, the Federal Supreme Court would again be cautious in annulling the contested act. Everything indicates that it would carefully weigh up the interests involved, taking into account all the circumstances and the political nature of the decision-making process that led to the contested act, as it already does in cases of appeals against cantonal legislative acts whose adoption is marred by procedural errors or against popular votes that have not always been conducted in full compliance with the democratic rules derived from Art. 34 of the Constitution. It would then take into consideration the urgency of the project concerned, the interest of the canton or cantons in being consulted specifically on it, and the influence that their opinion could have had—or could still have—on its outcome or final parameters, bearing in mind that the vast majority of Federal Assembly and Federal Council projects are in any case subject to public consultation within the meaning of Art. 147 of the Constitution. From this perspective, it should be noted that, in most cases, any action brought before the Federal Supreme Court would have no practical significance – although it would be politically significant – other than to obtain a decision in principle on the scope of Art. 45 para. 2 of the Constitution.
48 The situation may be different in the event of a refusal or waiver by an office or department – i.e., federal administrative authorities – to consult one or more cantons in connection with a federal project that is being prepared or has already been adopted by them, such as sectoral plans or special plan approval procedures (rail, electricity, etc.). . First of all, it is clear that, in such a situation, the cantons could in principle lodge an appeal with the Federal Administrative Court – and then with the Federal Supreme Court – or even, depending on the case, bring a direct action before the latter (see Art. 120 para. 1 and 2 LTF) to complain of a possible violation of Art. 45 para. 2 Cst.. If the competent judicial authority were to conclude that the canton(s) concerned do indeed have the right to be specially consulted within the meaning of Art. 45 para. 2 Cst. in relation to a draft that has not yet been adopted, it should order the federal departments or offices to inform them about the draft, or even to involve them directly in the draft in progress, so that they can give their opinion on it. Finally, if the department or federal office concerned had already adopted the disputed project itself, it would be necessary to declare it null and void, unless, perhaps, the canton could be accused of having acted too late (see above N. 46) or the project was of an urgent nature and pursued an important public interest. Apart from these two scenarios, it will not generally be possible to waive the annulment of the contested federal project on the grounds that early information and consultation of the cantons concerned would in any case have had no influence on the outcome of the procedure.
About the authors
Eloi Jeannerat, PhD in law, is a clerk at the Federal Supreme Court. Fanny Matthey, PhD in law, is a research assistant at the Federal Office of Justice.
This publication reflects only the views of the authors and not those of the Federal Supreme Court or the Federal Office of Justice.
Recommended further reading
Egli Patricia, Kantone als Verfassungsorgane, in : Diggelmann Oliver/Hertig Randall Maya/Schindler Benjamin (édit.), Verfassungsrecht der Schweiz – Droit constitutionnel suisse, Vol. III : Verfassungsorgane, Verfahren. Bereichsverfassungen, Zurich et al. 2020, p. 1677–1698.
Freiburghaus Rahel, Lobbyierende Kantone – Subnationale Interessenvertretung im Schweizer Föderalismus, Berne 2023, disponible sur http://doi.org/10.5771/9783748919483, consulté le 7.11.2025.
Rapport et propositions du groupe de travail commun Confédération-Cantons à l’attention du Dialogue confédéral du 16 mars 2012, La mise en œuvre du droit fédéral par les cantons, du 13.3.2013, disponible sur https://www.bj.admin.ch/dam/bj/fr/data/staat/foederalismus/bericht-antraege.pdf.download.pdf/bericht-antraege-f.pdf, consulté le 7.11.2025.
Tschannen Pierre, Die Bedeutung normativ substanzschwacher Verfassungssätze, RDS 143 (2024) I, p. 103–124.
Uhlmann Felix, Gutachten zuhanden der Konferenz der Kantonsregierungen (KDK) betreffend gerichtliche Überprüfung der föderalistischen Grundsätze in der Schweiz, 18.7.2016, disponible sur https://kdk.ch/fileadmin/files/Newsletter/Gutachten_GerichtlicheUEberpruefungFoederalerStreitigkeiten.pdf, consulté le 7.1.2025.
Willi Hans-Urs, Kollektive Mitwirkungsrechte von Gliedstaaten in der Schweiz und im Ausland, Geschichtlicher Werdegang, Rechtsvergleichung, Zukunftsperspektiven, eine institutsbezogene Studie, Berne 1988.
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Materials
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