#1. Legislative History
N. 1 Art. 103 Cst. largely adopted the regulation of Art. 31quater of the old Federal Constitution (old Cst.), which was inserted into the constitution in 1947. The Message concerning a new Federal Constitution of 20 November 1996 (BBl 1997 I 1, 286) emphasised that structural policy should be retained as an economic policy instrument to meet the challenges of economic change. The norm was intended to enable the Confederation to intervene specifically in economic processes when market mechanisms alone were insufficient.
N. 2 The formulation «economically threatened regions of the country» replaced the term «economically threatened areas» of the old Cst. to clarify that not only small-scale areas, but also larger regions could be covered. The constitutional revision of 1999 retained the dual structure: regional structural policy (first alternative) and sectoral structural policy (second alternative).
#2. Systematic Classification
N. 3 Art. 103 Cst. is found in Title 3 (Confederation, Cantons and Communes), Chapter 2 (Powers), Section 7 (Economic Affairs) of the Federal Constitution. The norm is a special competence provision that allows the Confederation to deviate from the principle of economic freedom (→ Art. 94 Cst.). It is closely related to other economic policy competences of the Confederation, in particular economic policy (→ Art. 100 Cst.), regional policy (→ Art. 135 Cst.) and agriculture (→ Art. 104 Cst.).
N. 4 The relationship to fundamental rights, namely to economic freedom (→ Art. 27 Cst.), is governed by Art. 36 Cst. Structural policy measures must fulfil the general requirements for restrictions on fundamental rights, whereby Art. 103 sentence 2 Cst. creates a special constitutional basis for deviations from the principle of economic freedom.
#3. Constituent Elements / Content of the Norm
N. 5 Regional structural policy (first alternative): The term «economically threatened regions of the country» presupposes an existential economic threat. According to doctrine, mere locational disadvantages or below-average economic development are insufficient (Richli/Sahlfeld, in: Wirtschaftsstrukturrecht, 2005, 41–79). The threat must relate to a coherent region, not merely to individual communes.
N. 6 Sectoral structural policy (second alternative): «Economic sectors and occupations» encompasses entire industries (e.g. textile industry, watch industry) as well as specific occupational groups. It is disputed whether only important economic sectors are covered or whether significance plays no role (prevailing opinion, cf. Richli, Strukturpolitik, 2005, 19–40).
N. 7 Principle of subsidiarity: The phrase «if reasonable self-help measures for securing their existence do not suffice» enshrines the principle of subsidiarity. The Confederation may only act when private and cantonal measures fail. Reasonableness is determined by objective criteria; unreasonable are measures that would endanger the basis of existence.
N. 8 General promotional competence: It is controversially discussed whether Art. 103 Cst. contains a general economic promotional competence without a subsidiarity reservation. Practice and part of doctrine affirm this with reference to the legal situation under the old Cst.. Oesch/Mayoraz themselves reject this: The wording of Art. 103 «clearly stands in the way» of such a reading; sectoral promotional measures are only permissible if the constituent elements are fulfilled.
#4. Legal Consequences
N. 9 Art. 103 Cst. establishes a discretionary competence of the Confederation. It is not obliged to act in terms of structural policy, but decides according to proper discretion. The competence encompasses both legislation and implementation (→ Art. 164 Cst. for the legislative obligation for important provisions).
N. 10 The instruments of structural policy are diverse: subsidies, tax relief, guarantees, loans, infrastructure investments. The chosen measures must be proportionate and may not impair competition more than necessary.
N. 11 Deviation from economic freedom (sentence 2): This power is to be interpreted restrictively. It does not permit arbitrary dirigiste measures, but only such interventions as are necessary to achieve structural policy objectives. Examples are market access restrictions, quotas or price regulations.
#5. Points of Dispute
N. 12 Scope of promotional competence: The main dispute concerns the question of whether Art. 103 Cst., in addition to conditional structural policy (with subsidiarity reservation), also contains a general economic promotional competence. Federal practice and parts of doctrine (citing historical interpretation) affirm such an implicit competence analogous to the legal situation under Art. 31quater old Cst. Oesch/Mayoraz represent the contrary position: The clear wording («if reasonable self-help measures...do not suffice») applies to both alternatives of the norm.
N. 13 Significance of economic sectors: It is disputed whether only «important» economic sectors are worthy of promotion. Richli (Strukturpolitik, 2005, 35) argues that economic significance does not constitute a constituent element. Oesch/Mayoraz see this as disputed and refer to practice, which tends to presuppose a certain relevance.
N. 14 Relationship to international economic law: The application of Art. 103 Cst. is limited by international obligations. Oesch (Staatliche Subventionen, ZSR 2012 I 255–284) emphasises the limits imposed by WTO law and bilateral agreements. Richli/Bundi (AJP 2008, 665–683) see more scope for innovation- and SME-specific promotion.
#6. Practical Guidelines
N. 15 In developing structural policy programmes, subsidiarity must be strictly observed. Applicants must demonstrate that their own efforts and cantonal assistance are insufficient. The mere assertion of economic difficulties does not suffice (JAAC 51.19).
N. 16 In procedural terms, there is no legal entitlement to structural assistance. Administrative court appeal is generally excluded (Art. 100 para. 1 lit. e FSCA). Nevertheless, authorities must grant the right to be heard and justify rejections.
N. 17 International economic law limitations must be examined at an early stage. Subsidies to export-oriented companies may violate WTO subsidy law. For EU/EFTA companies, the prohibition on state aid must be observed. The sector-specific bilateral agreements (aviation, land transport) often contain special state aid rules.
N. 18 The delimitation from other promotional bases must be carefully undertaken: agricultural promotion is governed by Art. 104 Cst., innovation promotion by Art. 64 Cst. (research), labour market measures by Art. 114 Cst. Art. 103 Cst. is subsidiary to more specific competence provisions.