#1. Legislative History

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. 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.

#2. Systematic Classification

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.

N. 4 The provision is closely related to:

• → Art. 131 para. 1 lit. b and c FC (special taxes on distilled spirits)
• → Art. 131 para. 3 FC (earmarking of revenues)
• → Art. 118 FC (protection of health)
• → Art. 41 para. 1 lit. c FC (social objective of protection against the consequences of addiction)
• → Art. 94 FC (principles of the economic system)

#3. Elements of the Offence / Content of the Provision

#Comprehensive Federal Competence (sentence 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.

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.

#Health Policy Mandate (sentence 2)

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.

N. 9 The health protection mandate is implemented through:

• Prevention measures (advertising restrictions, youth protection)
• Fiscal steering charges
• Quality regulations
• Sales restrictions

#4. Legal Consequences

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)
• Licensing (home distilleries, commercial enterprises)
• Taxation (monopoly charge, special taxes)
• Usage regulations

#5. Points of Controversy

#Minimum Prices and Sales Restrictions

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. Pärli/Lehne affirm compatibility with Art. 105 FC citing the health protection mandate, while Epiney/Metz express commercial law concerns.

#Concept of «Distilled Spirits»

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.

#Total Revision of Alcohol Legislation

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. Critics fear a weakening of health protection, supporters expect administrative simplifications.

#6. Practical Notes

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.

#Constitutional Foundations and Competence Norm

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.»

#Delineation from Cantonal Competences

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.

#Historical Case Law

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.

#Cantonal Court Practice

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.