1The Confederation shall ensure that the agricultural sector, by means of a sustainable and market oriented production policy, makes an essential contribution towards:
the reliable provision of the population with foodstuffs;
the conservation of natural resources and the upkeep of the countryside;
decentralised population settlement of the country.
2In addition to the self-help measures that can reasonably be expected in the agriculture sector and if necessary in derogation from the principle of economic freedom, the Confederation shall support farms that cultivate the land.
3The Confederation shall organise measures in such a manner that the agricultural sector fulfils its multi-functional duties. It has in particular the following powers and duties:
supplementing revenues from agriculture by means of direct subsidies in order to achieve of fair and adequate remuneration for the services provided, subject to proof of compliance with ecological requirements;
encouraging by means of economically advantageous incentives methods of production that are specifically near-natural and respectful of both the environment and livestock;
legislating on declarations of origin, quality, production methods and processing procedures for foodstuffs;
protecting the environment against the detrimental effects of the excessive use of fertilisers, chemicals and other auxiliary agents;
at its discretion, encouraging agricultural research, counselling and education and subsidise investments;
at its discretion, legislating on the consolidation of agricultural property holdings.
4For these purposes, the Confederation shall provide both funds earmarked for the agricultural sector and general federal funds.
In order to guarantee the supply of food to the population, the Confederation shall create the conditions required for:
safeguarding the basis for agricultural production, and agricultural land in particular;
food production that is adapted to local conditions and which uses natural resources efficiently;
an agriculture and food sector that responds to market requirements;
cross-border trade relations that contribute to the sustainable development of the agriculture and food sector;
using food in a way that conserves natural resources.
Art. 104 BV — Overview
Art. 104 BV regulates the Confederation's agricultural policy. The provision gives the Confederation extensive powers to promote agriculture and permits it to deviate from the principle of economic freedom.
Agriculture shall fulfil three important tasks: It must supply the population with food, protect the environment and maintain the cultivated landscape, and it shall ensure that even remote areas remain inhabited. These various functions are called «multifunctionality». Agriculture shall produce in a sustainable and market-oriented manner.
The Confederation may promote farming enterprises even if this contradicts the free market economy. It particularly supports farmers who cultivate their land themselves.
Farmers receive direct payments from the Confederation if they fulfil certain environmental requirements. Particularly environmentally friendly and animal-friendly enterprises receive additional support. Consumers are also affected: The Confederation may issue regulations on the declaration of foodstuffs so that they know where their food comes from.
Farmers have no legal entitlement to specific support measures. However, the Confederation must decide fairly who receives support. If farmers violate environmental requirements (proof of ecological performance), their direct payments may be reduced or cancelled.
A mountain farmer in Valais cultivates steep meadows that would not be profitable for industrial agriculture. Thanks to direct payments, he can continue operating his farm. He thereby contributes to the supply of meat and milk, maintains the typical alpine landscape and ensures that the mountain village does not die out. At the same time, he must farm in an environmentally friendly manner, for example in fertilising and animal husbandry.
N. 1 Art. 104 FC was fundamentally redesigned as part of the total revision of the Federal Constitution in 1999. The predecessor provision Art. 31bis para. 3 lit. b old FC was limited to a general federal competence for maintaining a healthy farming community. In contrast, the new constitutional norm establishes a comprehensive agricultural policy programme with the concept of multifunctionality (BBl 1997 I 1, 245 ff.).
N. 2 The Message on the new Federal Constitution emphasises the paradigm shift from pure production support to multifunctional agriculture: «Agriculture should not only produce food, but also contribute to preserving the natural foundations of life, maintaining the cultural landscape and supporting decentralised settlement» (BBl 1997 I 247). This change was already embedded in Agricultural Policy 2002 and was constitutionally enshrined with Art. 104 FC (Ehrenzeller/Schindler/Schweizer/Vallender, St. Galler Kommentar BV, 4th ed. 2023, Art. 104 N. 3).
N. 3 The concept of multifunctionality was deliberately chosen to capture the various services agriculture provides to society. The constitutional assembly rejected formulations that would focus solely on the production function (Waldmann/Belser/Epiney, BSK BV, 2nd ed. 2024, Art. 104 N. 4).
N. 4 Art. 104 FC is located in the 3rd section of the 3rd title on «Confederation and Cantons» and belongs to the federal competences in the economic sphere. The provision is systematically closely linked with → Art. 75 FC (spatial planning), → Art. 76 FC (water) and → Art. 77 FC (forests), as these areas concern the natural foundations of life (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, § 18 N. 3457).
N. 5 The agriculture articles are in tension with economic freedom (→ Art. 27 FC). Art. 104 para. 2 FC explicitly permits deviations from the principle of economic freedom, which represents a constitutional peculiarity. However, this breach is not unlimited but must serve the objectives of Art. 104 para. 1 FC (BGE 140 II 233 E. 3.2).
N. 6 The relationship to the social objectives (→ Art. 41 FC), particularly the right to adequate nutrition, must also be considered. While Art. 41 FC has a programmatic character, Art. 104 FC establishes concrete legislative competences and duties to act for the Confederation (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1087).
N. 7 The concept of «sustainable and market-oriented production» combines ecological and economic requirements. Sustainable means, in the sense of the Brundtland Report, that the needs of the present are met without compromising the ability of future generations to meet their own needs (Ehrenzeller et al., St. Galler Kommentar BV, Art. 104 N. 8).
N. 8 The three main functions of agriculture are equivalent:
Secure supply (lit. a): Food sovereignty and supply security in times of crisis
Preservation of natural foundations of life (lit. b): Biodiversity, soil protection, water protection
Decentralised settlement (lit. c): Prevention of rural exodus, maintenance of infrastructure in rural areas
N. 9 The «substantial contribution» does not require complete self-sufficiency, but substantial domestic production. The prevailing doctrine assumes a self-sufficiency rate of at least 50% (Waldmann et al., BSK BV, Art. 104 N. 12; different view Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 892, who refer to Switzerland's import dependency).
#3.2 Promotion of Land-Cultivating Farms (Para. 2)
N. 10 «Reasonable self-help» presupposes that farmers first undertake their own efforts. This includes business optimisation, cooperation and market adaptation. Only subsidiarily does state support intervene (2A.40/2005 E. 4.2).
N. 11 «Land-cultivating farms» are those that work the land themselves. Pure refinement operations without their own feed base are not included. Whether legal persons are covered is disputed. The Federal Supreme Court affirms this, provided they are considered self-cultivators (BGE 140 II 233 E. 3.2).
N. 12 Direct payments (lit. a) are the centrepiece of the support system. The «ecological performance record» (ÖLN) includes requirements for crop rotation, soil protection, fertiliser balance and animal welfare. The link between direct payments and ecological conditions is mandatory (2C_388/2008 E. 3.1).
N. 13 The promotion of near-natural production methods (lit. b) goes beyond the ÖLN and concerns organic farming, extensive production and biodiversity promotion areas. The incentives must be «economically worthwhile», i.e. compensate for additional costs and reduced yields (Ehrenzeller et al., St. Galler Kommentar BV, Art. 104 N. 18).
N. 14 Art. 104 FC establishes a comprehensive legislative competence for the Confederation, which it has exercised with the Agriculture Act (LwG, SR 910.1) and numerous ordinances. The cantons have only enforcement competences and marginal regulatory powers of their own (2A.246/2004 E. 2.3).
N. 15 The provision obliges the Confederation to act («ensures»), but grants it considerable discretion in design. There is no subjective right to specific support measures, but there is a claim to proper exercise of discretion in the allocation of direct payments (Tschannen/Zimmerli/Müller, Allgemeines Verwaltungsrecht, 4th ed. 2014, § 18 N. 42).
N. 16 The deviation from economic freedom (para. 2) enables market access barriers, quotas and price regulations. However, these must be proportionate and serve the objectives of para. 1. Complete isolation of the agricultural market would be inadmissible (Rhinow et al., Schweizerisches Verfassungsrecht, § 18 N. 3462).
N. 17Scope of multifunctionality: Ehrenzeller et al. (St. Galler Kommentar BV, Art. 104 N. 9) emphasise the equivalence of all three functions. Waldmann et al. (BSK BV, Art. 104 N. 15) see a priority of the production function, as only «market-oriented production» can fulfil the other functions. The practice of the Federal Supreme Court tends towards a balanced view (2C_397/2021 E. 4.1).
N. 18Compatibility with WTO law: Müller (in: Ehrenzeller et al., St. Galler Kommentar BV, Art. 104 N. 24) sees direct payments as «green box»-compliant. Cottier/Oesch (Internationales Wirtschaftsrecht, 2nd ed. 2019, p. 456) warn of protectionist elements that could be WTO-incompatible. The Federal Supreme Court has left this question open so far.
N. 19Climate protection as a new function: The doctrine discusses whether Art. 104 FC provides a constitutional basis for climate protection measures in agriculture. Griffel (Umweltrecht, 2nd ed. 2019, p. 342) affirms this with reference to the «preservation of natural foundations of life». Vallender (in: Ehrenzeller et al., St. Galler Kommentar BV, Art. 104 N. 11) demands a constitutional revision for more far-reaching climate measures.
N. 20 When designing direct payments, compliance with the ecological performance record must be ensured. The control mechanisms are strict, and violations lead to reductions or complete elimination of payments (B-3133/2009). Farmers should take documentation obligations seriously.
N. 21 Conversion to organic farming is particularly promoted (Art. 104 para. 3 lit. b FC). The conversion period is financially secured, but requires careful planning. Cantonal advisory services offer support.
N. 22 For investments in agricultural buildings, coordination with spatial planning law (→ Art. 75 FC) is central. Not all agricultural activities justify buildings outside the building zone. Multifunctionality does not expand the scope of action indefinitely (1A.19/2007 E. 5.3).
N. 23 Legal persons can operate agricultural enterprises and receive direct payments under certain conditions. However, self-cultivation must be guaranteed, which requires detailed corporate law regulations (BGE 140 II 233).
BGE 140 II 233 of 18 March 2014
2C_212/2013
The Federal Supreme Court clarifies that legal persons may also acquire agricultural enterprises and receive direct payments, provided they qualify as self-operators.
The decision illustrates the constitutional foundation of agricultural promotion under Art. 104 BV and its implementation in rural land law.
«The scope of application of rural land law is constitutionally prescribed by Art. 104 para. 2 BV. The definition of self-operation is tailored to the activity of natural persons. However, economic freedom means that agricultural enterprises may be operated under various legal forms, insofar as the Federal Legislature has not provided for deviations.»
#Direct Payments and Ecological Performance Verification
2C_388/2008 of 16 December 2008
The Federal Supreme Court specifies the procedural requirements for reviewing ecological performance verification for direct payments.
The decision is fundamental for the distribution of burden of proof and the investigative principle in direct payment procedures.
«According to Art. 104 para. 2 BV, the Confederation promotes land-cultivating farm enterprises as a supplement to reasonable self-help by agriculture and, where necessary, in deviation from the principle of economic freedom. According to Art. 70 para. 1 LwG, the Confederation provides general direct payments, ecological contributions and ethological contributions to operators of such enterprises subject to ecological performance verification.»
2A.40/2005 of 16 August 2005
2A.40/2005
The Federal Supreme Court addresses the reduction of direct payments in case of exceeding maximum livestock numbers and the connection with the multifunctional tasks of agriculture under Art. 104 para. 3 BV.
The decision demonstrates the practical implementation of constitutional requirements for sustainable agriculture.
«Art. 104 para. 3 BV authorises the Confederation to design measures so that agriculture fulfils its multifunctional tasks. This includes in particular the promotion of production methods that are particularly close to nature, environmentally and animal-friendly.»
2A.246/2004 of 21 December 2004
2A.246/2004
The Federal Supreme Court clarifies the allocation of powers between the Confederation and the cantons in the area of agricultural promotion and the scope of federal regulation.
The decision is relevant for the relationship between Art. 104 BV and cantonal promotion measures.
«Art. 104 para. 2 BV authorises the Confederation to promote land-cultivating farm enterprises. Insofar as the Confederation has exercised this competence, the cantons in principle have no room for autonomous regulations in the same area, unless federal law expressly allows cantonal supplements.»
#Multifunctional Agriculture and Environmental Protection
B-3133/2009 of 13 November 2009
The Federal Administrative Court specifies the requirements for ecological performance verification and the implementation of multifunctional tasks under Art. 104 para. 3 BV.
The judgment demonstrates the practical significance of constitutional requirements for preserving the natural foundations of life.
«The multifunctional tasks of agriculture under Art. 104 BV include, in addition to food production, the preservation of the natural foundations of life and the maintenance of the cultural landscape. Ecological performance verification is the central instrument for ensuring these functions.»
B-649/2016 of 23 August 2017
The Federal Administrative Court addresses biodiversity promotion as part of the multifunctional tasks of agriculture and the corresponding direct payments.
The decision illustrates the specification of Art. 104 para. 1 lit. b BV in implementation practice.
«The preservation of the natural foundations of life and the maintenance of the cultural landscape under Art. 104 para. 1 lit. b BV require targeted measures for biodiversity promotion. The corresponding direct payments are designed to realise these constitutional objectives.»
2C_397/2021 of 25 November 2021
The Federal Supreme Court addresses recent developments in direct payments and their compatibility with constitutional requirements for sustainable agriculture.
The decision demonstrates the continuous development of agricultural policy within the framework of Art. 104 BV.
«The design of agricultural measures must be oriented towards the constitutional objectives of Art. 104 BV. In doing so, the various functions of agriculture must be brought into a balanced relationship.»
B-1014/2019 of 24 July 2020
The Federal Administrative Court specifies the requirements for decentralised settlement as one of the constitutional purposes under Art. 104 para. 1 lit. c BV.
The judgment specifies the spatial planning dimension of agricultural promotion.
«Decentralised settlement of the country under Art. 104 para. 1 lit. c BV requires the maintenance of comprehensive agriculture. Direct payments contribute to ensuring cultivation also in disadvantaged areas.»