#Doctrine

#Legislative History

N. 1 Art. 104a Cst. was adopted on 24 September 2017 by an overwhelming majority of the people (78.7%) and cantons (all cantons) as a counter-proposal to the popular initiative "For Food Security" and entered into force on 1 January 2018. The popular initiative was subsequently withdrawn.

N. 2 The Federal Council's message of 24 January 2017 emphasized that although Switzerland enjoys a high level of food security, this cannot be taken for granted in light of global challenges such as climate change, population growth and resource scarcity (BBl 2017 2195). The constitutional article was intended to anchor the various dimensions of food security — from domestic production to international trade to sustainable consumption — in a holistic approach.

N. 3 The counter-proposal went beyond the original popular initiative in terms of content by including not only the production side but the entire value chain from field to plate. Particular emphasis was placed on the necessity of cross-border trade relations (lit. d) as recognition of the fact that Switzerland imports around 40% of its food (BBl 2017 2199).

#Systematic Classification

N. 4 Art. 104a Cst. is located in Title 6 of the Federal Constitution on the powers of the Confederation and the cantons and, together with Art. 104 Cst. (agriculture), forms the constitutional foundation of agricultural policy. While Art. 104 Cst. primarily regulates multifunctional agriculture and its public services, Art. 104a Cst. focuses on food security as an overarching objective.

N. 5 The provision has close links to other constitutional norms: → Art. 2 para. 2 Cst. (common welfare), → Art. 54 para. 2 Cst. (alleviation of need and poverty in the world), → Art. 73 Cst. (sustainability), → Art. 74 Cst. (environmental protection), → Art. 75 Cst. (spatial planning) and → Art. 80 Cst. (animal welfare). These systematic cross-connections shape the interpretation of the individual elements of the provision.

N. 6 In relation to Art. 104 Cst., there is a complementary relationship: While Art. 104 Cst. regulates the instruments and measures of agricultural policy (direct payments, production regulations), Art. 104a Cst. defines the overarching objective of food security and extends the focus beyond primary production to the entire food chain.

#Elements of the Provision / Normative Content

N. 7 The purpose clause "to ensure the supply of food to the population" defines food security as permanent access to sufficient, safe and nutritious food. This encompasses both physical availability and economic accessibility (affordability).

N. 8 Lit. a: Securing the foundations for agricultural production — The protection of agricultural land is explicitly anchored as a constitutional mandate. This reinforces the protective duty already established in Art. 75 Cst. and Art. 3 para. 2 lit. a SPA. The Federal Supreme Court clarified in BGE 147 II 83 E. 3.2 that Art. 104a lit. a Cst. constitutionally underpins the quantitative protection of fertile soil areas. In addition to soil, the production foundations also include water, genetic resources and agricultural knowledge.

N. 9 Lit. b: Location-appropriate and resource-efficient food production — This provision codifies the sustainability principle for agriculture. "Location-appropriate" means taking account of natural conditions (climate, soil, topography) and excludes intensive production forms in unsuitable locations. "Resource-efficient" requires careful use of natural resources and high productivity per unit area.

N. 10 Lit. c: Market-oriented agriculture and food industry — Market orientation as a constitutional principle marks a departure from purely supply-oriented production incentives. The inclusion of the "food industry" extends the scope of application beyond primary production to processing, trade and catering.

N. 11 Lit. d: Cross-border trade relations for sustainable development — This worldwide unique constitutional provision acknowledges Switzerland's import dependence and obliges consideration of sustainability aspects in agricultural trade. According to the message, the term "sustainable development" encompasses ecological, social and economic dimensions (BBl 2017 2200).

N. 12 Lit. e: Resource-conserving handling of food — This provision addresses food losses and waste (food waste) along the entire value chain. It forms the constitutional basis for measures to reduce losses in production, processing, trade and consumption.

#Legal Consequences

N. 13 As a competence norm, Art. 104a Cst. establishes a legislative mandate for the Confederation, but does not create directly enforceable subjective rights. The Confederation is obliged to create "conditions" — this implies a wide legislative margin of discretion in the choice of means.

N. 14 In legal application, Art. 104a Cst. primarily unfolds its effect as an aid to interpretation and in balancing interests. The Federal Supreme Court held in judgment 1C_235/2020 E. 5.3.2 that Art. 104a Cst. strengthens the weight of agricultural land protection in spatial planning considerations. The norm serves as an "optimization requirement" in the sense of principles theory.

N. 15 For the administration, Art. 104a Cst. establishes obligations to consider when enacting and implementing agricultural, spatial planning, environmental and foreign trade law. When drafting ordinances and political strategies (e.g. Agricultural Policy 2022+), the objective norm of food security is to be used as a guideline.

#Controversies

N. 16 The legal nature of Art. 104a Cst. is disputed in doctrine. Rainer J. Schweizer (in: St. Gallen Commentary Cst., Art. 104a N. 8) qualifies the provision as a pure competence norm without programmatic content. In contrast, Christine Kaufmann (The anchoring of food security in the Federal Constitution, LeGes 2018, p. 1 ff.) emphasizes that Art. 104a Cst. does contain programmatic elements that must be taken into account in legislation and interpretation.

N. 17 The relationship between protection of agricultural land (lit. a) and market orientation (lit. c) is controversially discussed. Peter Hänni (Planning, Construction and Special Environmental Protection Law, 6th ed. 2016, § 3 N. 128a) sees a tension here, as strict area protection limits adaptability to market requirements. Thomas Sägesser (Commentary SPA, Art. 3 N. 42a) argues against this that both objectives are compatible through intelligent spatial planning.

N. 18 The scope of the sustainability clause in lit. d is also disputed. Elisabeth Bürgi Bonanomi (Sustainable agricultural imports into Switzerland?, Jusletter 15.10.2018) advocates for a broad interpretation that also includes social standards in exporting countries. Mathis Berger (Agricultural Foreign Trade and Constitution, 2019, p. 89 ff.) warns of trade law conflicts and favors a restrictive interpretation.

#Practical Guidelines

N. 19 In planning procedures, Art. 104a Cst. must be included early in the balancing of interests. Particularly when claiming fertile soil areas, authorities must demonstrate that no suitable alternatives exist and that the use is limited to the minimum (→ Art. 30 para. 1bis SPO).

N. 20 In the approval procedure for agricultural buildings and installations, "location-appropriate" production (lit. b) is to be used as a criterion. Intensive livestock farming in sensitive areas or soil-independent production can only with difficulty invoke Art. 104a Cst.

N. 21 When designing support programs and direct payments, all five dimensions of Art. 104a Cst. must be considered in a balanced manner. One-sided optimizations — such as pure productivity increases without sustainability aspects — contradict the holistic approach of the norm.

N. 22 For agricultural policy, Art. 104a Cst. results in a coherence requirement: measures in one area (e.g. market opening) may not undermine other objectives (e.g. agricultural land protection). This requires cross-sectoral policy design and regular impact controls.

#Case Law

Art. 104a FC was only incorporated into the Federal Constitution on 24 September 2017 and entered into force on 1 January 2018. Case law on this new provision is accordingly still underdeveloped. The available decisions mainly concern the application of the food security provision in the context of spatial planning and agricultural law.

#Relationship to Art. 104 FC and Agricultural Policy

Judgment 2C_294/2023 of 22 January 2025
In the context of animal welfare law, the Federal Supreme Court clarified that Art. 104a FC strengthens the constitutional foundations for agricultural production, without however relativising existing animal welfare provisions. The provision does not establish any exemption from general legal obligations in livestock farming.

«Art. 104a FC creates conditions for location-adapted and resource-efficient food production, but this does not lead to a relaxation of animal welfare minimum requirements.»

#Crop rotation areas and spatial planning

Judgment 1C_235/2020 of 16 December 2020
The Federal Supreme Court recognised Art. 104a FC as a constitutional basis for enhanced protection of crop rotation areas. The provision supports the restrictive handling of applications for release from the cantonal inventory of crop rotation areas.

«Art. 104a para. 1 lit. a FC obliges the Confederation to secure the foundations for agricultural production, particularly agricultural land. This justifies strict requirements for the release of crop rotation areas.»

Judgment A-5843/2022 of 23 June 2025 (FAC)
The Federal Administrative Court applied Art. 104a FC in weighing interests in national road construction. The protection of agricultural land under Art. 104a FC must be duly considered in infrastructure projects, even if it is not always given priority.

The Court emphasised the importance of comprehensive variant assessments:

«In weighing interests, the protection of agricultural land within the meaning of Art. 104a FC must be duly considered. Variants must be examined that would require less or no agricultural land.»

#Location-adapted production

Judgment A-3425/2019 of 19 December 2019 (FAC)
The Federal Administrative Court referred to Art. 104a FC in the context of ecological compensation measures. The provision supports sustainable, location-adapted agriculture that is in harmony with nature conservation.

The relevance of the provision for weighing interests between agricultural use and nature conservation was highlighted:

«Art. 104a FC demands resource-efficient food production that also takes ecological considerations into account and thus enables synergies between agriculture and nature conservation.»

#Cantonal and regional application

Judgment 602 2021 6 of 13 April 2022 (Cantonal Court of Fribourg)
The Cantonal Court of Fribourg relied on Art. 104a FC when examining zonings. The provision reinforces the constitutional weight of agricultural land protection in spatial planning.

Judgment 110/2022/37 of 24 October 2022 (BVD Bern)
The Building, Transport and Energy Directorate of the Canton of Bern included Art. 104a FC in weighing interests regarding alpine roads. The provision supports traditional, extensive mountain agriculture.

#Significance for enforcement practice

The case law to date shows that Art. 104a FC serves as a reinforcing constitutional basis for already existing agriculture-friendly policies and norms. The provision is particularly invoked in weighing interests between different land uses, without however relativising existing protective provisions (animal welfare, environmental protection).

The courts emphasise the preventive character of the norm: Art. 104a FC obliges proactive protection of the foundations of food security before scarcity situations arise. This justifies stricter requirements for agricultural land protection and site planning for infrastructure.