1The Confederation shall ensure that the country is supplied with essential goods and services in the event of the threat of politico-military strife or war, or of severe shortages that the economy cannot by itself counteract. It shall take precautionary measures to address these matters.
2In exercising its powers under this Article, it may if necessary depart from the principle of economic freedom.
59* With transitional provision
Art. 102 — National Economic Supply
#Overview
Article 102 FC assigns the Confederation the task of supplying the country with vital goods and services. This applies to crisis situations such as wars, political threats or severe shortages, when the economy cannot ensure supply itself. The Confederation must take precautionary measures already in peacetime (BBl 1997 I 351).
Vital goods are energy, food, medicinal products and important transport services (Art. 4 para. 2 NESA). The most important instrument is compulsory stockpiling: private companies must keep certain quantities of these goods in stock and receive state compensation for this (BGE 135 II 38 consid. 5.2). These stocks secure supply for several months.
In times of crisis, the Confederation may derogate from economic freedom. It can then fix prices, confiscate goods or direct production. These measures must be proportionate and may only last as long as the crisis continues (→ Art. 36 FC).
An example: If there is a threat of electricity shortage in winter, the Confederation can provide reserve power plants or restrict electricity consumption. The Federal Administrative Court confirmed in 2024 that electricity shortage situations also fall under Art. 102 FC (FAdC A-1706/2023 consid. 4.3.2).
The system functions through self-help organisations of the economy: Carbura manages the fuel stocks, Réservesuisse the food reserves. These organisations work under state supervision, but can independently levy contributions and grant permits.
National economic supply is subsidiary: the state only intervenes when the market fails. Those affected can file an appeal against rulings by the Federal Office for National Economic Supply. Only in cases of acute threat is the legal remedy excluded (Art. 83 lit. j FSCA).
Art. 102 — National Economic Supply
#Doctrine
#1. Legislative History
N. 1 National economic supply has been a constitutional concern of the Confederation since the early twentieth century. Its origins lie in the experiences of the First World War, when Switzerland — a resource-poor country heavily dependent on imports — suffered severe supply shortages. The former Federal Constitution of 1874 (aBV) contained no express provision on national supply; relying on Art. 102 nos. 8 and 9 aBV (general governmental authority), the Federal Council issued initial emergency measures. An explicit constitutional basis was not established until 1947, with Art. 31bis para. 3 lit. b aBV, which granted the Confederation the right to intervene in the economy to secure food and essential goods. The Federal Act on National Economic Supply of 8 October 1982 (NASG; SR 531) gave concrete expression to this competence.
N. 2 The Federal Constitution of 1999 transferred the relevant subject matter to Art. 102 FC without making substantive changes of significance. According to the Dispatch (BBl 1997 I 350 f.), the provision was intended to correspond in substance to the existing constitutional regime and to be modernised in language only. A new element in para. 1 was the express mention of «services» alongside «goods», thereby acknowledging the changed economic structure — in particular the importance of energy and information infrastructures. Para. 2 codifies the competence, recognised since the practice of the Second World War, to derogate from economic freedom where necessary.
#2. Systematic Classification
N. 3 Art. 102 FC is situated in Chapter 4 («Economy and Employment») of Title 3 («Confederation, Cantons and Communes»). Systematically, the provision belongs to the economic constitutional articles (Art. 94–107 FC), which constitute the fundamental market and competition order of Switzerland. It constitutes an exception to the regulatory principle of economic freedom (→ Art. 94 FC) and is an expression of the State's duty to ensure supply in exceptional situations (→ Art. 57 FC on security).
N. 4 Art. 102 FC is a competence norm with a legislative mandate: it confers on the Confederation an exclusive federal competence in the area of national economic supply and simultaneously obliges it to create the necessary statutory foundations (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 671). Cantonal competence is thereby displaced in this area; the cantons participate under Art. 3 para. 1 NASG merely as enforcement authorities for federal law. The Confederation has exercised this competence through the NASG and numerous implementing ordinances (→ Art. 3 FC).
N. 5 Within the system of restrictions on fundamental rights, Art. 102 para. 2 FC constitutes a qualified restriction clause (→ Art. 36 FC): restrictions on economic freedom under Art. 27 FC that are based on Art. 102 FC nonetheless require a statutory basis in the NASG and must be proportionate. Art. 102 para. 2 FC, however, broadens the legislature's latitude by legitimising State interventions in economic processes that would be unconstitutional outside of supply crises. The provision therefore stands in a particular tension with Art. 94 FC (economic freedom as a principle) and Art. 27 FC (individual economic freedom) (↔ Art. 27 FC, ↔ Art. 94 FC).
#3. Elements of the Offence / Normative Content
N. 6 Essential goods and services: According to legal scholarship and practice, this concept encompasses those goods and services whose absence endangers the physical existence of the population or substantially impairs economic and social life in Switzerland. Historically, food, fuels and medicinal products were paramount. The Federal Administrative Court (judgment A-1706/2023 of 19 February 2024, BVGE 2024 II/1) has extended the concept to electrical energy. Services provided by information and communication infrastructure are also considered to be covered under more recent doctrine (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3752). With regard to internationally traded goods, the WTO agreements — and in particular Art. XI and XX GATT — must be observed; these generally prohibit import restrictions but provide for national security exceptions. The compatibility of mandatory stockholding measures with the GATT is to be affirmed, provided they do not operate in a discriminatory manner (Cottier/Oesch, International Trade Regulation, 2005, pp. 418 ff.).
N. 7 Precautionary measures: The second sentence of para. 1 obliges the Confederation to act preventively — that is, to provide infrastructure and instruments already outside of a specific threat situation. The mandatory stockholding system under Art. 8 ff. NASG is the most important expression of this precautionary duty: private importers and manufacturers of essential goods are bound by contract to maintain minimum stocks that can be made available when needed. Financing is provided through guarantee funds administered by self-help organisations of the economy (e.g. Carbura for fuels, Réservesuisse for food and feedstuffs) (BGE 135 II 38 E. 2.2).
N. 8 Two alternative constituent elements: Art. 102 para. 1 FC contains two alternative constituent elements that trigger the Confederation's mandate — not cumulative requirements, but variants of which either one alone is sufficient: on the one hand, «power-political or military threats» (first variant), and on the other, «serious shortages to which the economy is unable to respond by its own means» (second variant). The first variant concerns geopolitical crises capable of interrupting trade flows or giving rise to embargo situations. The second variant covers purely economic shortfalls without a security policy dimension, for example caused by natural disasters, epidemics or global excess demand. In respect of the second variant, the Federal Administrative Court has held that the existence of a «serious shortage» is determined by the extent and likelihood of an impairment of the national economic supply and the severity of the macroeconomic damage (judgment A-1706/2023 of 19 February 2024 E. 5).
N. 9 Subsidiarity of State action: State intervention presupposes, according to the wording of para. 1, that «the economy is unable to respond by its own means». This anchors the principle of subsidiarity (→ Art. 5a FC) at the constitutional level: State measures are permissible only when the self-regulating forces of the market fail. The NASG accordingly provides for a partnership-based cooperation between the Confederation, the cantons and private economic actors (Art. 3 NASG); State intervention measures (Art. 29 ff. NASG) are conceived as a measure of last resort.
N. 10 Derogation from economic freedom (para. 2): The clause permits the legislature to adopt measures that would, under normal circumstances, contravene Art. 27 or Art. 94 FC — such as price controls, import restrictions, allocation rules or mandatory procurement obligations. The clause does not, however, relieve the obligation to have a statutory basis and to respect proportionality; it merely lowers the threshold for the reasonable tolerability of such interventions (→ Art. 36 FC). The Federal Administrative Court has confirmed that, even in the case of emergency measures, incidental judicial review of the underlying ordinances remains permissible (judgment A-1706/2023 of 19 February 2024 E. 5).
#4. Legal Consequences
N. 11 Art. 102 FC establishes a duty under federal constitutional law on the part of the Confederation («shall ensure») to secure the supply of the country in exceptional situations. This is a genuine State duty, not merely a statement of State objectives. The Confederation has fulfilled this duty by enacting the NASG. The provision does not, however, confer subjective rights on private individuals to State supply services; it is not directly invocable (Häfelin/Haller/Keller/Thurnherr, op. cit., N 671).
N. 12 The organisational legal consequences of the NASG include: (a) the system of mandatory stockholding by private parties in exchange for compensation (Art. 6–17 NASG); (b) the establishment of the Federal Office for National Economic Supply (FONES) as the competent federal authority; (c) the possibility of entrusting private-law economic organisations with public tasks relating to national supply (Art. 10 NASG). Such self-help organisations hold limited sovereign powers (issuing import licences) but are not authorised to enact legal rules (BGE 135 II 38 E. 4.5).
N. 13 In the area of legal protection, the NASG provides for differentiated rules: appeals against rulings of the FONES generally lie to the Federal Administrative Court (Art. 38 para. 3 NASG). Excepted under Art. 83 lit. j BGG are decisions in the field of national economic supply taken in the context of increasing threats or serious shortages; in these exceptional cases, appeal to the Federal Supreme Court is excluded (BGE 135 II 38 E. 1.1).
#5. Contested Issues
N. 14 Scope of the second variant — subsidiarity vs. precaution: Legal scholarship is divided on how narrowly the concept of «serious shortage» is to be interpreted. A restrictive view, which regards Art. 102 FC as applicable only to acute, already-occurred supply crises, stands in contrast to a preventive interpretation that also permits intervention to avert imminent shortages. The Federal Administrative Court endorsed the preventive interpretation in BVGE 2024 II/1 (judgment A-1706/2023): preventive measures are permissible where the shortage threatens with sufficient probability and the potential macroeconomic damage would be substantial. Rhinow/Schefer/Uebersax (op. cit., N 3753) advocate this interpretation with reference to the precautionary duty in para. 1 sentence 2.
N. 15 Relationship between Art. 102 FC and general emergency law: A further controversy concerns the relationship between the special statutory national supply provision and the unwritten powers of the Federal Council in exceptional situations (emergency law under Art. 185 para. 3 FC). While one view in legal scholarship regards Art. 102 FC as an exhaustive special provision for economic supply crises that precludes recourse to emergency law (see the tendency in Tschannen/Zimmerli/Müller, Allgemeines Verwaltungsrecht, 4th ed. 2014, § 9 N 20), another view holds that recourse to Art. 185 para. 3 FC is permissible where the requirements of Art. 102 FC are not fully met. The COVID-19 crisis of 2020/2021 rendered this question practically relevant, when the Federal Council relied on both the NASG and Art. 185 para. 3 FC to secure the supply of medicinal products.
N. 16 The concept of «essential goods and services» — open scope: Whether digital infrastructures (cloud services, payment systems) qualify as «essential services» within the meaning of Art. 102 FC has not yet been definitively resolved by the courts. Legal scholarship predominantly favours a functional interpretation that focuses on the factual indispensability of such services for social and economic life (Rhinow/Schefer/Uebersax, op. cit., N 3752). A systematic-historical interpretation, by contrast, might point to the original focus on physical supply goods.
#6. Practical Notes
N. 17 Mandatory stockholding: The practically most significant manifestation of Art. 102 FC is the mandatory stockholding system. Importers and producers of goods subject to mandatory stockholding obligations (fuels, medicinal products, food, feedstuffs) conclude mandatory stock contracts with the Confederation (Art. 6 NASG). The costs of storage are covered through the guarantee funds of the self-help organisations, which are financed by importers through an import levy. Rulings by self-help organisations (e.g. Carbura) concerning import licences may be challenged before the FONES (Art. 38 para. 1 NASG; cf. judgment B-7972/2008 of 4 March 2010).
N. 18 Approval of regulations: Self-help organisations that administer guarantee funds must submit their articles of association and regulations to the Federal Department of Economic Affairs, Education and Research (EAER) or to the FONES for approval (Art. 10 para. 2 NASG). The approval — or its revocation — constitutes an appealable ruling, not a legislative act, against which appeal may be lodged with the Federal Administrative Court (BGE 135 II 38 E. 4.6).
N. 19 Intervention measures in the event of a serious shortage: Where a serious shortage has occurred or is imminent, the Federal Council may, on the basis of Art. 29 ff. NASG, order economic intervention measures. These include regulations on production, procurement, storage, delivery and use, as well as price and consumption restrictions. The measures are time-limited and are subject to incidental judicial review by the courts, even where the ordinary avenue of appeal to the Federal Supreme Court is excluded under Art. 83 lit. j BGG (judgment A-1706/2023 of 19 February 2024 E. 5).
N. 20 Recent developments (electricity supply): The application of Art. 102 FC to security of electricity supply is of significant practical importance. The Federal Administrative Court (BVGE 2024 II/1) qualified the Hydropower Reserve Ordinance and the Ordinance on the Provision of the Reserve Power Plant at Birr as, in principle, a lawful implementation of national supply law, and deemed the Federal Council's assessment that a serious shortage was imminent to be tenable. For practice, it follows that Art. 102 FC in conjunction with the NASG provides a sufficient constitutional basis for preventive measures to safeguard energy supply, provided that subsidiarity vis-à-vis market-based solutions is respected and the proportionality of the measures is demonstrated.
Art. 102 — National Economic Supply
#Case Law
The case law on Art. 102 FC primarily deals with the organization and control of national economic supply, particularly mandatory stockpiling, as well as the procedural aspects of supervision over the business organizations involved. Most decisions stem from the area of mineral oil and medicinal product reserves.
#I. Foundations of National Economic Supply
BGE 81 I 133 of 22 June 1955
The Federal Supreme Court fundamentally clarified the legal nature of Federal Council approvals in the context of national supply. The Federal Council's approval does not have constitutive effect, but rather declaratory effect for the legal validity of cantonal enactments that affect federal competencies.
«The approval of the Federal Council under Art. 102 No. 13 old FC [now Art. 102 FC] does not constitute a condition of existence for the legal validity of the cantonal enactment, but merely represents a condition for its effectiveness.»
BGE 135 II 38 of 2 December 2008
In this leading decision, the Federal Supreme Court defined the constitutional basis of national economic supply and the legal nature of approval decisions. The case concerned Carbura as a self-help organization of mandatory stockpilers for motor and heating fuels.
«According to Art. 102 FC, the Confederation ensures the supply of the country with vital goods and services in the event of power-political or military threats as well as in serious shortage situations that the economy cannot cope with on its own. It takes precautionary measures and may, if necessary, deviate from the principle of economic freedom.»
The decision confirmed that approval decisions by the Federal Office for National Economic Supply constitute challengeable rulings and legal protection is granted according to the general provisions of federal judicial procedure.
#II. Mandatory Stockpiling and Self-Help Organizations
BVGer B-7972/2008 of 4 March 2010
The Federal Administrative Court confirmed the central role of Carbura as a self-help organization of mandatory stockpilers. The judgment clarified the legal status of private organizations that fulfill public tasks of national supply.
Carbura is authorized to issue import permits and monitor mandatory stockpiling without itself having regulatory powers. Its regulations require approval by the competent federal office.
BVGer B-1483/2019 of 23 March 2021
This judgment dealt with the legal status of a cooperative of mandatory stockpilers of medicinal products. The court confirmed the system of delegated task fulfillment through private self-help organizations as constitutional.
Compensation for mandatory stockpiling and protection against price risks during storage are essential elements of the national supply system.
BVGer B-456/2022 of 18 July 2022
The judgment clarified the requirements for guarantee fund contributions for the import of energy and protein carriers for feed purposes. Réservesuisse as a self-help organization is authorized to collect corresponding contributions from importers.
The customs clearance of goods can subsequently lead to contribution liability if the intended use changes and thus affects mandatory stockpiling.
#III. Current Developments: Electricity Supply Security
BVGer A-1706/2023 (BVGE 2024 II/1) of 19 February 2024
This groundbreaking decision extended the scope of application of Art. 102 FC to electricity supply. The court recognized the Federal Council's competence to take emergency measures based on the National Economic Supply Act in the event of threatening shortage situations in electricity supply.
The case concerned the provision of a temporary reserve power plant in Birr (AG) to bridge supply bottlenecks in winter. The Federal Administrative Court set high requirements for proving a serious shortage situation:
«The National Economic Supply Act provides for legal protection against rulings on economic intervention measures, and the authority must fundamentally explain what assumptions it makes regarding the supply situation and according to what criteria it assesses the probability of supply impairment.»
The judgment demonstrates the adaptability of national supply law to new threat situations and confirms the constitutional basis for preventive measures regarding critical infrastructure.
#IV. Procedural Law Aspects
The case law has developed clear principles for legal protection in national supply law. Appeals to the Federal Administrative Court are generally available against rulings of the Federal Office for National Economic Supply (Art. 38 para. 3 NSA).
Only decisions made in cases of increasing threat or serious shortage situations are excluded (Art. 83 lit. j FSCA). This guarantee of legal remedy ensures rule-of-law protection for those affected even in times of crisis.
The case law shows that Art. 102 FC forms a flexible constitutional basis for managing different supply risks — from traditional goods shortages to modern infrastructure crises such as electricity shortages.