The legislation on the manufacture, import, rectification and sale of alcohol obtained by distillation is the responsibility of the Confederation. The Confederation shall in particular take account of the harmful effects of alcohol consumption.
Overview
Art. 105 Cst. gives the Confederation exclusive competence for legislation on the manufacture, importation, rectification and sale of distilled spirits. The term «distilled spirits» encompasses all alcoholic beverages produced by distillation with more than 15 per cent alcohol by volume (Art. 2 para. 2 AlcA). This includes whisky, vodka, gin and other spirits – but not beer or wine, which are produced only by fermentation.
The Confederation must consider health protection in its legislation. Therefore, it taxes imported spirits with a monopoly duty of 29 francs per litre of pure alcohol (Art. 23 AlcO). This high tax is intended to reduce alcohol consumption and protect public health. The Confederation also controls manufacture through a licensing system for distilleries.
The cantons may not enact their own laws in the area of distilled spirits. They may only establish supplementary rules for hospitality licences and sales hours. If a canton violates this allocation of competences, the Federal Court may intervene (BGE 143 II 409).
Example: A distillery wants to produce whisky. It needs a licence from the Confederation under the Alcohol Act and additionally a cantonal trade licence. For the import of vodka, an importer pays 29 francs monopoly duty per litre of pure alcohol. A canton may not levy an additional alcohol tax on distilled spirits.
The legislative history shows: After serious social problems due to alcoholism in the 19th century, the Confederation received initial competences in 1885. The current regulation stems from the total revision of 1999, when three old constitutional articles were combined into Art. 105 Cst. (BBl 1997 I 1, 276). Switzerland wanted to reduce alcohol consumption through state control and high taxes.
Currently, the Federal Council is planning a reform of alcohol legislation. Controversial are minimum prices for alcoholic beverages and sales bans at night. The Council of States supported such measures, the National Council rejected them. Legal doctrine is divided: Uhlmann sees constitutional scope for action, while Pärli/Lehne consider minimum prices to be permissible.
N. 1 The current federal alcohol regulation is based on the alcohol articles of the old Federal Constitution (Art. 32bis-32quater aFC), which were introduced between 1885 and 1930 in several popular votes. The constituent power reacted to the devastating health and social consequences of massive alcohol consumption in the 19th century (Uhlmann, BSK BV, Art. 105 N. 1). The Federal Council Message on the new Federal Constitution of 1996 adopted the existing allocation of powers without material changes (BBl 1997 I 1, 276).
N. 2 The total revision of the Federal Constitution led to linguistic modernisation and systematic simplification. The three alcohol articles of the old Federal Constitution were consolidated into Art. 105 FC (competence provision) and Art. 131 para. 1 lit. b and c as well as para. 3 FC (fiscal provisions). The mandate to protect health was explicitly enshrined in sentence 2 of Art. 105 FC.
N. 3 Art. 105 FC stands in Title 3 (Confederation, Cantons and Communes), Chapter 3 (Financial System), Section 3 (National Bank; Monetary and Currency System). This systematic position is historically conditioned and does not reflect the present-day significance of the provision. Art. 105 FC is primarily a competence provision with health policy objectives (Uhlmann, BSK BV, Art. 105 N. 1).
N. 5 Art. 105 sentence 1 FC establishes a comprehensive and exclusive federal competence for legislation on «distilled spirits». The term covers all alcoholic beverages obtained through distillation as well as alcoholic products that achieve a comparable alcohol content through other technical processes (BGE 143 II 409). Legal doctrine and case law adopt the terminology of the Alcohol Act for constitutional interpretation (Uhlmann, BSK BV, Art. 105 N. 4).
N. 6 The federal competence extends to four areas of activity:
Production: Monopoly for commercial production, licensing system for home distilleries
Import: Monopoly charge on imported spirits
Purification: Rectification and quality control
Sale: Regulation of wholesale and retail trade
N. 7 Not covered are fermented alcoholic beverages (beer, wine). These are only subject to federal competence insofar as they are further processed into distilled spirits. Cantonal competence for hospitality law remains reserved, insofar as distilled spirits are not specifically affected.
N. 8 The legislature is obliged to «take account of the harmful effects of alcohol consumption». This mandate shapes the entire alcohol legislation and legitimises health policy-motivated restrictions on economic freedom (Uhlmann, BSK BV, Art. 105 N. 6-9).
N. 9 The health protection mandate is implemented through:
N. 10 The exclusive federal competence excludes cantonal legislation in the core area of distilled spirits. The following cantonal regulations remain permissible:
In the hospitality sector (licences, opening hours)
For local sales restrictions for police reasons
For supplementary levies, insofar as they are not similar to federal taxes (Judgment 2P.316/2004)
N. 11 The Confederation has the competence for comprehensive regulation including:
Monopoly formation (import and manufacturing monopoly)
N. 12 The constitutional admissibility of minimum prices for alcoholic beverages is disputed. The Council of States supported both night-time sales bans (10 p.m.-6 a.m.) and minimum prices to combat alcohol excess; the National Council rejected both (Uhlmann, BSK BV, Art. 105 N. 10-11). Pärli/Lehne affirm compatibility with Art. 105 FC citing the health protection mandate, while Epiney/Metz express commercial law concerns.
N. 13 The interpretation of the term «distilled spirits» is disputed for new production processes. The Federal Supreme Court decided in BGE 143 II 409 that freeze-concentrated wine also qualifies as distilled spirits if the alcohol content corresponds to that of distilled products. Beusch advocates for a technology-neutral interpretation based on alcohol content and intended use.
N. 14 The Federal Council proposes a fundamental reform with a Spirits Tax Act and an Alcohol Trade Act. Controversial is the planned reduction of the monopoly area and the reduction of licensing requirements (Uhlmann, BSK BV, Art. 105 N. 10). Critics fear a weakening of health protection, supporters expect administrative simplifications.
N. 15 When importing alcoholic products, it should be clarified early whether they qualify as «distilled spirits». The decisive factors are:
Alcohol content (> 15% by volume)
Production process (not only distillation)
Intended use
The Federal Alcohol Administration provides binding information.
N. 16 For cantonal and municipal authorities: Local alcohol sales bans are only permissible for police reasons (public order, youth protection), not for health policy motives. These fall within exclusive federal competence.
N. 17 Businesses must distinguish between alcohol law authorisation (federal) and hospitality law authorisation (cantonal). Both are required for the sale of distilled spirits. Cantonal licences may not impose additional requirements for distilled spirits.
BGE 143 II 409 of 3 February 2017
Art. 105 BV establishes the exclusive federal competence for legislation on spirits and obliges the Confederation to consider the harmful effects of alcohol consumption. The Federal Supreme Court confirms the qualification of freeze-concentrated wine as "spirits" within the meaning of alcohol legislation.
«Art. 105 BV declares legislation on the production, importation, purification and sale of spirits to be a federal matter; in doing so, the Confederation must take particular account of the harmful effects of alcohol consumption.»
BGE 125 II 192 of 5 January 1999
Confirmation of exclusive federal competence in the alcohol sector. The Federal Supreme Court specifies the interpretation criteria for the Alcohol Act and confirms the authorisation of the alcohol administration to challenge appeal decisions.
«The Federal Alcohol Administration is authorised under Art. 103 lit. a OG to challenge a decision of the Alcohol Appeals Commission which revoked monopoly charges claimed by it.»
Judgment 2P.316/2004 of 31 October 2005
Fundamental decision on the delineation between federal and cantonal competences in the alcohol sector. The Federal Supreme Court establishes that cantonal levies on the sale of spirits are permissible, provided they are not of the same nature as federal taxes.
«Legislation on the production, importation, purification and sale of spirits is a federal matter; the Confederation should take particular account of the harmful effects of alcohol consumption (Art. 105 BV, Art. 32bis old BV).»
Judgment 2A.660/2004 of 14 June 2005
Confirmation of the health protection purpose of the alcohol system. The Federal Supreme Court emphasises that Art. 105 BV contains not only a competence allocation, but also a mandate to protect public health.
«Legislation on the production, importation, purification and sale of spirits is a federal matter; the Confederation should take particular account of the harmful effects of alcohol consumption (Art. 105 BV and Art. 32bis old BV).»
#Federal Administrative Court Practice on Alcohol Legislation
Judgment A-477/2018 of 11 September 2018
Current case law on home distilleries and exceptional permits. The Federal Administrative Court specifies the requirements for rental permits under Art. 19 para. 3 AlkG and emphasises the health protection purpose.
«According to the Federal Constitution of the Swiss Confederation of 18 April 1999 (BV; SR 101), legislation on the production, importation, purification and sale of spirits is a federal matter (Art. 105 BV). The main purpose of the alcohol system lies in the protection of public health.»
Judgment A-1083/2014 of 30 March 2015
Decision on monopoly fees for the importation of alcoholic beverages. The Federal Administrative Court applies the constitutional requirements of Art. 105 BV when qualifying products as "spirits".
The decision concerns freeze-concentrated wine-based products and confirms the broad interpretation of the term "spirits".
Judgment A-335/2015 of 2 October 2015
Granting of licences for distillation. The Federal Administrative Court reaffirms the comprehensive federal competence under Art. 105 BV and the associated regulatory mandate to protect public health.
The court clarifies that the alcohol monopoly and the licensing requirement are directly derived from Art. 105 BV.
BGE 39 I 557 of 18 December 1913
Early case law on freedom of movement in the spirits trade. The Federal Supreme Court already developed principles for exclusive federal competence in the alcohol sector under the old Federal Constitution.
The decision shows the continuous line of case law regarding comprehensive federal competence in alcohol legislation.
BGE 15 I 149 from 1889
Fundamental historical decision on the interpretation of the then Federal Act on spirits. Already here, comprehensive federal competence is emphasised and cantonal restrictions are qualified as inadmissible.
Historical case law confirms the continuous recognition of exclusive federal competence since the beginnings of modern alcohol legislation.
WBE.2023.48 of 28 September 2023 (Administrative Court of Aargau)
Current cantonal case law on alcohol law permits. The Administrative Court of Aargau applies Art. 105 BV in assessing sales restrictions and confirms the overriding federal competence.
TVR 2006 No. 1 (Administrative Court of Thurgau)
Decision on the levy for the sale of spirits. The cantonal court emphasises the obligation to comply with the federal requirements of Art. 105 BV in the design of cantonal levy systems.
The court establishes that cantonal levies in the alcohol sector can only be raised subsidiarily and in accordance with Art. 105 BV.