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- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Art. 2 FADP
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- Art. 5 lit. c FADP
- Art. 5 lit. d FADP
- Art. 5 lit. f und g FADP
- Art. 6 para. 3-5 FADP
- Art. 6 Abs. 6 and 7 FADP
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- Art. 12 CCC (Convention on Cybercrime)
- Art. 16 CCC (Convention on Cybercrime)
- Art. 18 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 27 CCC (Convention on Cybercrime)
- Art. 28 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
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- Art. 2a para. 1-2 and 4-5 AMLA
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- Art. 38 AMLA
FEDERAL CONSTITUTION
FEDERAL ACT ON DIRECT FEDERAL TAX
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
FEDERAL ACT ON MEDICINAL PRODUCTS AND MEDICAL DEVICES
TAX HARMONISATION ACT
- I. Historical Background
- II. Conceptual and Systematic Classification
- III. Function
- IV. Commentary in the Strict Sense
- Recommended further reading
- Bibliography
I. Historical Background
1 The idea of a constitutional guarantee can be traced back to the Helvetic Republic. Under Article 1 of the Federal Treaty of 1815, the cantons initially guaranteed each other’s constitutions. Against the backdrop of the revolutionary events of the 1830s and 1840s, this cantonal system of guarantees proved to be insufficiently stable. With the founding of the federal state in 1848, the Confederation therefore assumed the role of guarantor.
2 Art. 6 of the FC of 1848 required the cantons, in para. 1, to seek the Confederation’s guarantee for their constitutions. The Confederation assumed this guarantee pursuant to Art. 6, para. 2 of the 1848 FC, provided that the cantonal constitutions contained nothing contrary to the provisions of the FC (lit. a), ensured the exercise of political rights in accordance with republican (representative or democratic) forms (lit. b), and had been adopted by the people and could be revised if an absolute majority of citizens so demanded (lit. c). The inspiration for this provision was the U.S. counterpart to the federal guarantee in Art. IV, Section 4 of the U.S. Constitution.
3 Since its inception, the Swiss federal guarantee has undergone no significant substantive changes. Even the updating of the FC did not alter this situation. In contrast to the original version, the total revision of 1999 condensed the content of Art. 6 of the FC of 1848 (and the identical provision in Art. 6 of the FC of 1874) into two paragraphs, changed the order of the requirements, and reformulated the assumption that the cantons “have” a constitution what was reformulated into a call to “adopt one.” However, this is merely a formal cosmetic change.
II. Conceptual and Systematic Classification
4 The federal guarantee of cantonal constitutions is one of the so-called federal guarantees, which are enshrined in the fourth section of the FC, specifically in Art. 51–53 FC. If one asks an artificial intelligence or enters the term “federal guarantee” into a search engine, references are regularly made to financial guarantees provided by the Confederation, such as those recently used in the CS takeover. However, the Constitution does not understand “federal guarantees” to mean financial guarantees. Rather, the Confederation provides a guarantee that relates to the federal structure and the legal status of the cantons. This refers to the promise to uphold the essential values that make the Swiss Confederation a federal state, without diminishing the cantons’ own statehood. A financial guarantee, however, is not part of this.
5 The federal guarantees under Art. 51–53 of the FC are, in a sense, an expression of the mutual assistance that has characterized the Swiss Confederation since its founding. In addition to Art. 51 of the FC, the other two federal guarantees concern the protection of the constitutional order of the cantons (Art. 52) and the guarantee of the existence and territorial integrity of the cantons (Art. 53 of the FC). From a systematic perspective, the guarantee of the cantonal constitutions is found in Art. 51 of the FC, the protection of the constitutional order of the cantons in Art. 52 of the FC, and the guarantee of the existence and territorial integrity of the cantons in Art. 53 of the FC, all within the chapter on the relationship between the Confederation and the cantons.
6 With the specific wording “each canton shall adopt…; chaque canton se dote…; ogni cantone si dà…,” Art. 51 para. 1 of the FC reaffirms that the enactment and revision of cantonal constitutions fall within the sole competence of the respective canton.
7 The terms “guarantee,” “ensure,” and “safeguard”—and their noun forms—are used as synonyms in this context. On closer inspection, the procedure resembles an approval rather than a guarantee. The fact that the Constitution speaks of a “guarantee” is a historical relic. At the same time, however, the term emphasizes that a guarantor role is to be established that goes beyond purely preventive oversight.
III. Function
8 Art. 51 of the FC essentially contains three main requirements: It obliges the cantons to adopt written constitutions in the formal sense, which must meet certain requirements and be submitted to the Confederation for approval.
9 Different perspectives can be taken to answer the question of the function of the federal guarantee of cantonal constitutions. From the federal government’s perspective, the guarantee procedure aims—in accordance with the still-prevailing “homogeneity or convergence theory”—to ensure that the structures of the cantons exhibit certain common basic parameters prescribed by the federal government. Historically, this function can be substantiated by the fact that the cantonal guarantees of the cantonal constitutions were replaced by a uniform federal system. Such a system is only feasible if the federal government can identify common denominators. However, the primary aim is to establish a few minimum requirements, grant the greatest possible freedom in the organization of the state, and provide federal guarantees that serve this freedom. Comparative law also shows that minimum requirements for the constitutions of member states are an established instrument for achieving a certain degree of structural uniformity. While the standard of review—i.e., compatibility with federal law—is the same for all cantons, the cantons retain considerable freedom in the concrete implementation of these requirements in their cantonal constitutions. The result is a harmonization of regulations with only a modest loss of autonomy, which is a fine example of a federalist compromise typical in this country.
10 Art. 51 para. 1 of the FC, as it were, expresses the “constitutionality” of the cantons as sovereign member states. From the cantons’ perspective, the guarantee therefore signifies, on the one hand, a commitment to the federal state. The price for this lies in the legal protection of individual litigants, because provisions of the cantonal constitutions can no longer be challenged under the guarantee (see N. 38 et seq.). On the other hand, it constitutes a genuine federal guarantee, through which the cantons are specifically certified as having constitutions compatible with federal law. The guarantee of the cantonal constitutions and the associated review of federal law thus form the foundation for the constitutional order of the cantons.
IV. Commentary in the Strict Sense
A. Requirements for Cantonal Constitutions (Art. 51 para. 1 FC)
1. Overview
11 Art. 51 para. 1 of the FC contains two of the three main requirements for the cantons, namely that they have written cantonal constitutions in the formal sense and that these meet certain substantive requirements of the FC. The wording of the FC is imprecise here, as it merely states that each canton shall adopt a democratic constitution (Art. 51 para. 1 sentence 1 of the FC), that this constitution requires the approval of the people, and that it must be amendable if a majority of eligible voters so demands (Art. 51 para. 1 sentence 2 of the FC). In addition to being democratic, requiring popular approval, and being subject to revision, cantonal constitutions must also be compatible with federal law. This requirement arises from the interplay with Art. 51 para. 2 sentence 2 of the FC, according to which the Confederation guarantees the cantonal constitution provided it does not conflict with federal law (third main requirement). Also not explicitly addressed—but undisputed—is the requirement that the constitution must be written (see N. 12).
2. Specific Requirements
a. A Written Constitution in the Formal Sense
12 Remarkably, the requirement of written form itself is not expressly stipulated: Nevertheless, it is presumed that the cantons must have a written constitution. The written form follows from the very fact that the cantons are obligated to submit a request to the Confederation for the guarantee of their cantonal constitution. Historically speaking, this is a matter of course; from a comparative law perspective, however, it is by no means a necessity: Canada and the United Kingdom, for example, recognize unwritten constitutions of their constituent parts.
13 It is assumed here that this involves a unified constitutional document that possesses heightened legal force and can be amended only through a qualified procedure. Constitutional status therefore implies that the enactment was adopted through a special legislative procedure, which is why it takes precedence over other cantonal law. The Federal Supreme Court assumes that Art. 51 of the FC “tacitly” presupposes this primacy. In the legal literature, however, this requirement is questioned: for instance, the formal nature of a constitution can only be prescribed by the constitution itself and not imposed by federal law. It lies within the competence of the cantons to decide what possesses constitutional status. For cantons that have a mandatory legislative referendum, the distinction will indeed be more difficult to make. For if no additional requirements are imposed on the procedure, there is, from a formal perspective, no superiority of the cantonal constitution over “ordinary” statutory law. For this reason, Martenet emphasizes the significance of the federal guarantee, by virtue of which the cantonal constitution occupies a deliberate special position. Since all cantons provide for a qualified procedure for their constitutions on their own initiative, the practical significance of this question is minimal. However, the discussion is not without significance, because, in my view, it is only through the definition of the term “cantonal constitution” under Art. 51 of the FC that an intra-cantonal hierarchy of norms, as known in all cantons, becomes legally binding on the Confederation. Without this requirement, it would be irrelevant to the federal government whether the cantons provide for a constitution and—based on that—an intra-cantonal hierarchy of norms. From a historical perspective, too, it is clear that the subject matter referred to in Art. 51 of the FC is a written enactment that is difficult to amend, to which, regardless of its content, a heightened status is accorded in its canton of origin. The fact that the cantons have implemented these requirements even without an explicit request underscores their self-evident nature from the cantonal perspective.
14 Closely linked to the question of the quality of the cantonal constitution is the question of the constituent body: the constituent body is, apart from the case of a popular initiative, on the one hand the cantonal legislature, which is referred to as the “Cantonal Council” or “Grand Council” depending on the canton. Two cantons (Appenzell Innerrhoden and Glarus) also have the so-called Landsgemeinde. Due to organizational autonomy, political structures and procedures can vary considerably from canton to canton. What the cantons have in common is that the consent of the electorate is required for constitutional enactment (see N. 17 ff.), so that the electorate also acts as the constitutional authority. In this sense, the preambles also refer to the voters (“the people”).
b. Democratic Constitution
15 The cantonal constitution under review must be democratic. A democratic constitution is based on two cumulative requirements: First, a cantonal constitution is democratic only if it respects the principle of the separation of powers. Specifically, the cantons must therefore have parliamentary, governmental, and judicial bodies that are independent of one another in terms of personnel and organization. An absolute monarchical or aristocratic regime is thus ruled out. In terms of specific structure, the cantons enjoy a high degree of organizational autonomy—though to date, all cantons have opted for a collegial system. A purely representative constitution would also be theoretically permissible, although today all cantons utilize instruments of direct democracy.
16 Second, the legislature (the Cantonal Council or Grand Council, depending on the canton) must be elected through direct popular election. This requirement is unnecessary in the case of the Landsgemeinde, since there the voters act and represent themselves. The cantons are free to choose the electoral system for the Cantonal Council or Grand Council. The cantons must “merely” ensure a general, equal, free, and secret election.
c. Approval by the People
17 The cantonal constitution requires the approval of the people, as expressly stated in Art. 51 para. 1 sentence 2 of the FC. This obligates the cantons to introduce a mandatory constitutional referendum.
18 It is disputed whether this obligation applies to both a total revision and a partial revision, i.e., to the revision of the entire cantonal constitution or only to individual provisions. Historically, a constitutional referendum was required only for a total revision. Since all cantons have a mandatory referendum for constitutional amendments, the discussion has no practical significance. However, it may be regarded as a federal achievement that successful partial revisions of cantonal constitutions always require the approval of the people.
19 The answer to the question of who constitutes the “people” has indeed led to discussions, but today it can be clearly substantiated historically: Approval must be granted by the majority of valid voters, excluding blank ballots.
d. Constitutional initiative
20 Furthermore, federal law stipulates that a constitutional revision must be possible at any time if the “majority of eligible voters so demands.” In other words, the cantons must introduce a constitutional initiative. The term “at any time” implies a prohibition on the establishment of waiting periods, autonomous substantive barriers, and perpetual clauses. This prohibition applies to both total and partial revisions.
21 The constitutional initiative may also relate to any constitutional content. Screening out content deemed unworthy of the constitution is incompatible with the Swiss understanding of popular rights.
e. Compatibility with Federal Law
22 From today’s perspective, the most practically significant prerequisite for constitutionality is the compatibility of the cantonal constitution with federal law. Federal law also includes all international law binding on Switzerland. In addition to federal laws, ordinances, and the international law applicable to Switzerland, this also encompasses all principles of the rule of law, including the practice of the highest courts. This is a broad spectrum ranging from fundamental rights, social objectives, and competences to regulations governing the relationship between the Confederation and the cantons.
23 The scope of application of federal law as defined in Art. 51 para. 2 of the FC is reminiscent of the descriptions in Art. 95 lit. a and lit. b of the BGG, which establishes the admissible grounds for appeal—“federal law” and “international law”—before the Federal Supreme Court. Even though the scopes of application are nearly identical, one must not be misled into confusing Art. 95 BGG with the requirements for the guarantee procedure due to the wording: The Federal Supreme Court’s jurisdiction is much broader, as it examines not only federal and international law but also cantonal constitutional rights, provisions regarding citizens’ political suffrage, as well as referendums and popular votes, and intercantonal law (Art. 95(a)–(e) BGG). Nevertheless, it can be concluded from the comparison that the term “federal law” is understood more broadly under constitutional law than the procedural interpretation of the BGG permits. Thus, (in accordance with the monistic system), the terminology of the federal guarantee includes relevant international law under “federal law,” whereas under Art. 95(b), international law constitutes a separate ground for appeal before the Federal Supreme Court alongside federal law. However: The comparison with the appeal proceedings before the Federal Supreme Court is confusing at first glance because the functions of the guarantee and appeal proceedings differ. The guarantee of the cantonal constitutions is a federal guarantee, whereas the appeal proceedings before the Federal Supreme Court primarily serve the purpose of legal protection. With regard to the subject matter of the review, both are a form of abstract judicial review, a process in which a legislative act is examined for its compatibility with superior law (see N. 30). For this reason alone, a comparison is warranted. Despite the different functions of the guarantee procedure and the appeal procedure, the benchmark of “federal law” also regularly serves as a further argument for the Federal Supreme Court to exclude judicial review of cantonal constitutions (see N. 38). Therefore, it should be emphasized that the benchmarks are not the same.
24 It is not a matter for the guarantee to examine whether the cantonal constitution is compatible with the rest of cantonal law. This correlates with the requirement that the Federal Supreme Court—apart from constitutional rights, political rights, and intercantonal law—also “merely” reviews compliance with federal law. A certain coherence can be seen in this, as it is clear that respect for the cantonal hierarchy of norms remains a cantonal matter.
25 For a provision in a cantonal constitution to be denied constitutional protection, it must violate federal law. However, a violation of federal law does not occur merely because a contradiction with federal law is apparent. Constitutional protection is denied only if the cantonal constitutional provision defies any interpretation consistent with federal law. This mechanism is reminiscent of the practice regarding the invalidity of cantonal popular initiatives: Most cantons stipulate that their constitutional and legislative initiatives must be compatible with higher-ranking law (which already follows from federal law under Art. 49 para. 1 of the FC and can accordingly also be invoked before the Federal Supreme Court). According to case law, these constitutional and legislative initiatives are to be declared invalid only if they are to be interpreted in a way that makes them appear, with near certainty, to be inadmissible. The underlying rationale of this case law is the principle that, in cases of doubt, initiative proposals with ambiguous texts must be submitted to the electorate for a vote, provided that, when interpreted accordingly, they appear to be compatible with higher-ranking law (in dubio pro populo). In the guarantee procedure, however, the significance of this principle is significantly qualified: When a cantonal constitution is submitted to the Federal Assembly for guarantee, it has (1) undergone a cantonal legislative process and has (2) been adopted by the cantonal electorate in a mandatory referendum. A preliminary review (regardless of its specific cantonal form) has thus taken place. If, following this screening, a conflict with federal law still arises, then, in my opinion, the provision in the cantonal constitution must not be guaranteed. To guarantee a cantonal constitutional provision even when no interpretation compatible with federal law is possible violates Art. 51 para. 2 of the FC.
26 Furthermore, Art. 51 para. 2 of the FC applies the requirement of compatibility with federal law only to the cantonal constitution. However, the guarantee decision creates the expectation that subordinate cantonal law must also be in harmony with constitutional law. Since the guarantee decision only examines compliance with federal law, this, in my view, merely implies that the remaining cantonal law must be compatible with federal law. This, in turn, is a requirement that already follows from para. 49(1) of the FC (“Federal law takes precedence over conflicting cantonal law”). However, Art. 51 of the FC does not merely constitute an application of Art. 49 para. 1 of the FC, but supplements it with the obligation of the Federal Assembly not to guarantee the cantonal constitution in the event of such a conflict. Dogmatically, however, the lack of approval does not alter the effect—a provision of a cantonal constitution that violates federal law has no effect from the outset (even if the violation of federal law is only noticed at the time of approval). It cannot therefore be denied that approval today has more symbolic significance than practical relevance.
B. Approval of Cantonal Constitutions (Art. 51 para. 2 of the FC)
1. Procedure
27 Every canton is obligated to submit any amendment to its cantonal constitution to the Confederation—regardless of whether it is a total or partial revision. – In principle, two phases must be distinguished: the enactment of the cantonal constitution in the form of a total or partial revision under cantonal law and the subsequent guarantee of the cantonal constitutional provisions by the Confederation.
28 The subject of the review may be a cantonal constitution that has just been adopted or has already entered into force: The cantons are indeed entitled to adopt cantonal constitutions in accordance with cantonal law and to bring them into force even before they are guaranteed. Federal law does not prevent this either.
29 For the procedure, it is irrelevant whether the constitutional provisions to be reviewed have just been adopted or are already in force. There are no deadlines within which the request must be submitted. However, if a canton remains completely in default, the Federal Council, as the supervisory body, is instructed to call upon the cantons to submit the revised constitution.
30 The body responsible for guaranteeing constitutionality is the Federal Assembly (Art. 52 para. 2 in conjunction with Art. 172 para. 2 of the FC), which conducts an abstract review of constitutionality. The subject of review within the framework of this abstract review of constitutionality is the cantonal constitution as a whole (in the case of a total revision) or a single provision or several provisions of the cantonal constitution (in the case of a partial revision).
31 The procedure is structured as follows: The canton concerned first submits a request to the Federal Council, which prepares the approval procedure for the Federal Assembly. The request is filed with the Federal Chancellery. After reviewing the cantonal constitution, the Federal Council drafts a motion with a message to the Federal Assembly, in which it sets forth its assessment (approval/non-approval with corresponding considerations). The Federal Assembly is not bound by this motion, although it will generally follow the motion. Consideration of the matter is mandatory.
32 The Federal Assembly—like the Federal Council before it—conducts a purely legal review. It examines only the content of the cantonal constitution, not the manner in which it was adopted. In an era of highly effective judicial review by the Federal Supreme Court, the necessity of political legal review by the Federal Assembly is certainly open to question. In particular, if the federal duty of loyalty under Art. 44 para. 2 of the FC is used to incorporate political considerations, this leads to a relativization of the legal review. Such difficulties reveal the conceptual problem of conducting an abstract review of norms by a political body: Political considerations of expediency should have no place in legal review, which in turn demonstrates that the Federal Supreme Court is better suited to conducting such abstract judicial review.
33 The Federal Assembly may refuse to grant approval entirely or only partially (i.e., only for individual constitutional provisions). If the National Council and the Council of States reach different decisions, a simple reconciliation of differences takes place. The second rejection thus constitutes a negative guarantee decision. The guarantee decision is ultimately issued in the form of a simple federal resolution within the meaning of Art. 141 para. 1 lit. c and Art. 163 para. 2 of the FC. The guarantee decision is therefore not subject to an optional referendum, nor can it be challenged before the Federal Supreme Court.
2. Legal Effect of the Approval Resolution
34 According to prevailing doctrine, the positive approval resolution is of a declaratory nature, which is why cantonal constitutions may also enter into force in advance. If the cantonal constitution meets all requirements and the Federal Assembly issues a positive approval resolution, nothing stands in the way of the cantonal constitution entering into force (unless it has already been enacted). However, the cantons may stipulate that the Federal Assembly’s grant of approval is a prerequisite for entry into force, thereby conferring constitutive effect on the decision. Following approval, the cantonal constitutions are published as the only cantonal enactments in the Systematic Collection of Federal Legislation.
35 In the event of non-approval, the provision, according to prevailing opinion, ex tunc(from the time of its adoption) ceases to have effect. In the case of a revision that has just been adopted, this means that the successful referendum remains without effect. Here, too, the Federal Assembly’s decision is attributed declaratory effect, since a void provision could never have produced legal effects. However, it is not disputed that a cantonal constitution that has been adopted in accordance with the prescribed procedure and brought into force under cantonal law does indeed produce legal effects, especially when it is not obvious that it violates the requirements for constitutionality. An act of application based on this provision would have to be revoked, which is incompatible with the theory of nullity. In fact, the guarantee decision therefore has constitutive effect.
36 From a dogmatic perspective, it would be more accurate in this context to speak of nullity ex nunc. The unguaranteed provisions violate federal law and should be repealed or not applied accordingly within the framework of abstract or concrete judicial review. However, this would require that a cantonal constitutional provision be subject to review within the framework of abstract and concrete judicial review. Such an approach, however, is incompatible with the current Federal Supreme Court’s exclusion of abstract and concrete judicial review of cantonal constitutional provisions (see N. 37). Applying the theory of nullity ex tunc therefore has the advantage that the legal basis for the act of application never existed in the first place, which is why the decision based on it also lacks a legal basis. A proceeding is unnecessary. In practice, one limits oneself to stating that a corresponding provision is not guaranteed—which essentially establishes its nullity. The issue is put into perspective by the fact that cases in which provisions of the cantonal constitution have not been guaranteed are very rare.
3. Procedural Implications of the Guarantee Ruling
37 As already noted, the guarantee ruling has procedural implications: Although cantonal constitutions are unambiguously cantonal law and the relevant legislation in Art. 82 para. 2 BGG does not provide for an exception, they cannot be the subject of a challenge in an appeal. As a result, the cantonal constitution (or individual provisions thereof) cannot be annulled by the Federal Supreme Court, even if they violate federal law. The Federal Supreme Court has upheld this position since 1891. The exclusion is explained by the fact that Art. 172 para. 2 of the FC, which assigns the authority for abstract judicial review to Parliament, is a lex specialis to Art. 189 of the FC. In my view, the exclusion can be directly justified by the interplay of both provisions: cantonal constitutions are guaranteed by the Federal Assembly, which constitutes an act of the Federal Assembly, thereby precluding abstract judicial review of cantonal constitutions by the Federal Supreme Court (Art. 172 para. 2 in conjunction with Art. 189 para. 4 of the FC). Even if the exact derivation is open to debate, legal scholarship appears to have accepted the exclusion of abstract judicial review. However, this practice can be fundamentally questioned: As already mentioned in N. 23, the scope for abstract judicial review by the Federal Supreme Court and the Federal Assembly differs significantly. That Art. 172(2) of the FC therefore constitutes a special provision is, at the very least, not compelling. A more obvious route is via Art. 189 para. 4 of the Federal Constitution, according to which, by virtue of the guarantee decision, the FC’s review of the cantonal constitution—as an act of the FC—cannot be challenged before the Federal Supreme Court. But even here, one could counter that the cantonal constitution itself is not an act of the FC. Dogmatically, therefore, the exclusion rests on a less stable foundation than long-standing historical practice suggests. If one conducts the discourse outside the context of the separation of powers, there is not much room left for argumentation in favor of the exclusion. In my opinion, the solution that appears coherent is therefore to treat cantonal constitutions like any other cantonal law and to permit abstract judicial review.
38 Out of respect for the Federal Assembly’s approval procedure and the associated review of conformity with federal law, the Federal Supreme Court also refrains, as a matter of established practice, from conducting an incidental review of cantonal constitutions in a specific review of legal norms. This exclusion of incidental review by the Federal Supreme Court is almost unanimously criticized in the literature, as such an approach is neither covered by the legal basis nor functionally justified. Although the Federal Supreme Court itself has expressed doubts about its own practice, it has also advocated for its expansion.
The scholarly discourse can be supplemented by noting that, using the same line of reasoning, the incidental review of the constitutionality of all federal law could be dispensed with: Is it not a regular part of the legislative process for the Federal Council to issue a dispatch in which it examines constitutionality, and for the Federal Assembly to debate on this basis? Purely factually, this process could also be regarded as a preliminary review, with the consequence that the Federal Supreme Court would no longer be permitted to review the matter here due to prior consideration. However, the incidental review of federal ordinances is essential in practice. Even federal laws are reviewed by the Federal Supreme Court for their constitutionality, even though the requirement to apply Art. 190 of the FC always applies. To put it bluntly, one might therefore ask whether the existence of the guarantee procedure should prevent the Federal Supreme Court from fulfilling one of its core tasks. In my opinion, Art. 51 of the FC does not provide a sufficient basis for such restraint. It is, in fact, an illusion to believe that the Federal Assembly or the Federal Council can comprehensively and fully review the compatibility of a cantonal constitution with all federal law within the meaning of Art. 51 para. 2 of the FC. From today’s perspective, the scope of the federal law to be reviewed is so vast that a renewed review is virtually a given.
39 Since 1985, the Federal Supreme Court has, at least in exceptional cases, conducted a specific review of constitutionality when the federal law in question—regardless of its level—only entered into force after the guarantee procedure. This exception also applies to unwritten, evolving, overarching constitutional principles. The reasoning behind this is convincing: Restraint is not appropriate when the Federal Assembly had no opportunity whatsoever to examine compatibility with a specific norm. Law that entered into force later should therefore not be included in the effect of the guarantee decision. The further development of constitutional principles could provide an occasion to “clarify” the established practice of concrete constitutional review as a whole.
About the Author
Dr. Renata Trajkova is a lecturer in constitutional and administrative law at the Zurich University of Applied Sciences (School of Management and Law) and conducts research at the Institute for Regulation and Competition on various research projects addressing issues in spatial planning, construction, and environmental law. She is co-chair of the Expert Group on Spatial Planning Law and is writing a postdoctoral thesis on spatial planning law at the University of St. Gallen. In addition, she is a practicing attorney and a lecturer at the University of Zurich.
Recommended further reading
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Hotz Reinhold, Probleme bei der eidgenössischen Gewährleistung kantonaler Verfassungen, ZBl 1982, S. 193 ff.
Jaag Tobias, Die Rechtsstellung der Kantone in der Bundesverfassung, VRdCH, S. 473 ff.
Kälin Walter, Überprüfung kantonaler Verfassungsbestimmungen durch das Bundesgericht, recht 1986, S. 131 ff.
Kölz Alfred, Die Zulässigkeit von Sperrfristen für kantonale Volksinitiativen, Ein Beitrag zur Auslegung von Art. 51 BV, ZBl 2001, S. 169 ff.
Martenet Vincent, L’autonomie constitutionnelle des cantons, Diss. Genf, Basel 1999.
Sidler Lisbeth, Gewährleistung von Kantonsverfassungen, in: Schindler Benjamin (Hrsg.), Aus der Werkstatt des Rechts, Festschrift zum 65. Geburtstag von Heinrich Koller, Basel 2006, S. 281 ff.
Töndury Andrea Marcel, Bundesstaatliche Einheit und kantonale Demokratie: Die Gewährleistung der Kantonsverfassungen nach Art. 51 BV, Zürich 2004.
Tschannen Pierre, Die Schwyzer Kantonsverfassung, das Bundesgericht und die Bundesversammlung – Ein Lehrstück, in: Berner Festgabe zum Juristentag 2014, Bern 2014, S. 405 ff.
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