1Die Kantone sorgen für die Hilfe und Pflege von Betagten und Behinderten zu Hause.
2Der Bund unterstützt gesamtschweizerische Bestrebungen zu Gunsten Betagter und Behinderter. Zu diesem Zweck kann er Mittel aus der Alters-, Hinterlassenen- und Invalidenversicherung verwenden.
Art. 112c — Assistance for the Elderly and Disabled
Art. 112c Cst. gives the Confederation the task of promoting assistance for elderly and disabled persons. This constitutional provision is a competence norm (jurisdictional rule) that allows the Confederation to be active in this area. However, it does not create direct legal claims for individuals.
The Confederation can take various measures: It can allocate money for projects, enact legislation and support organisations. Elderly persons are all persons of retirement age. Disabled persons are those with permanent physical, mental or psychological impairments. Both groups shall obtain a better quality of life through the promotion.
The primary responsibility remains with the cantons and municipalities. They organise and finance most assistance services locally. The Confederation supplements these efforts but does not replace them. This division of tasks between the Confederation and cantons is called federalism.
A practical example: The Confederation has enacted the Disability Equality Act (DDA). This obliges public buildings to be accessible to disabled persons. At the same time, the Confederation supports research projects for new assistive devices. However, the cantons operate homes for disabled persons and organise care at home.
Art. 112c Cst. is closely connected with other constitutional articles. Art. 8 Cst. prohibits discrimination against disabled persons. Art. 41 Cst. formulates the goal that all persons should receive the necessary assistance in old age and in case of disability.
Individuals cannot derive direct claims from Art. 112c Cst. If someone needs more support, they must contact the competent cantonal or municipal authorities. However, the constitutional article obliges the authorities to create corresponding assistance services.
N. 1 Art. 112c Federal Constitution was incorporated into the new Constitution as part of the total revision of the Federal Constitution in 1999. The provision took over the content of the former Art. 34quater and 34septies of the old Federal Constitution, which formed the basis for federal competence in the area of assistance for the elderly and disabled (FG 1997 I 303).
N. 2 With this provision, the constitutional legislator wanted to create a clear constitutional basis for federal activities in the area of assistance for the elderly and disabled. The message emphasises that the norm is conceived not as a fundamental right, but as a competence norm that assigns a promotional task to the Confederation (FG 1997 I 303 f.).
N. 3 Art. 112c Federal Constitution stands in Chapter 3 of the Federal Constitution on «Confederation, Cantons and Communes» in Section 3 on «Education, Research and Culture» as well as «Environment and Spatial Planning» and «Social Objectives and Social Insurance». The norm systematically belongs to the social competences of the Confederation and stands in close connection with → Art. 112 Federal Constitution (old-age, survivors' and invalidity insurance) and → Art. 112a Federal Constitution (supplementary benefits).
N. 4 The provision is to be distinguished from the social objectives in → Art. 41 Federal Constitution. While Art. 41 Federal Constitution formulates programmatic objectives, Art. 112c Federal Constitution establishes a concrete federal competence for promotion. A systematic connection also exists to → Art. 8 para. 4 Federal Constitution (equality of people with disabilities) and the corresponding fundamental rights guarantees.
N. 5«The Confederation promotes»: This formulation establishes a promotional competence, but not a comprehensive regulatory competence. The federal competence is limited to support measures; complete federal responsibility for assistance to the elderly and disabled does not exist (Schweizer, St. Gallen Commentary Federal Constitution, 4th ed. 2023, Art. 112c N. 4).
N. 6«endeavours in favour of the elderly and disabled»: The term «endeavours» encompasses all activities and measures that serve to improve the living situation of elderly and disabled people. This includes both private and public initiatives (Gächter/Filippo, BSK Federal Constitution, 2nd ed. 2024, Art. 112c N. 8).
N. 7 The terms «elderly» and «disabled» are to be understood broadly. «Elderly» encompasses all people of retirement age, regardless of their need for care. The term «disabled» is oriented towards the modern concept of disability of the UN Convention on the Rights of Persons with Disabilities and encompasses people with permanent physical, mental, intellectual or sensory impairments (Müller/Schefer, Fundamental Rights in Switzerland, 4th ed. 2008, pp. 745 f.).
N. 8 Art. 112c Federal Constitution establishes a federal competence, but no subjective rights. Individuals cannot derive direct claims from this provision (BGE 129 I 35 E. 3.1). The norm obliges the Confederation to active promotion, but leaves it considerable discretion in the choice of means.
N. 9 The promotional competence encompasses financial contributions, the creation of legal framework conditions (such as the DDA), coordination tasks as well as support for research and innovation in the area of assistance for the elderly and disabled. The cantons retain their primary responsibility for the concrete design of assistance services (BGE 139 V 281 E. 4.1).
N. 10Scope of federal competence: In doctrine, it is disputed how far the promotional competence of the Confederation extends. Schweizer (St. Gallen Commentary Federal Constitution, Art. 112c N. 6) represents a narrow interpretation and emphasises the subsidiary character of federal competence. Gächter/Filippo (BSK Federal Constitution, Art. 112c N. 12 f.) advocate for a broader interpretation that also grants the Confederation certain regulatory competences within the framework of promotion.
N. 11Relationship to the cantons: The concurrent nature of the competence is undisputed, however opinions diverge on the scope of cantonal autonomy. Rhinow/Schefer/Uebersax (Swiss Constitutional Law, 3rd ed. 2016, N. 3854) emphasise the continuing main cantonal responsibility. Häfelin/Haller/Keller/Thurnherr (Swiss Federal Constitutional Law, 10th ed. 2020, N. 1285) see, however, an increased federal co-responsibility, particularly in financing.
N. 12Interpretation in conformity with international law: With the ratification of the UN Convention on the Rights of Persons with Disabilities, the question has arisen to what extent Art. 112c Federal Constitution is to be interpreted in light of international law. Schefer (in: Müller/Schefer, Fundamental Rights, p. 748) demands an expansive interpretation in the sense of the Convention. Waldmann (BSK Federal Constitution, Art. 8 N. 86) urges restraint and emphasises the difference between promotional mandate and fundamental rights obligation.
N. 13 In the application of Art. 112c Federal Constitution, the federalist division of tasks is to be observed. Federal measures must limit themselves to promotion and may not interfere with cantonal organisational sovereignty. Private and public bodies have equal entitlement to federal promotion, provided they fulfil the legal requirements.
N. 14 Practical implementation takes place mainly through the Disability Discrimination Act (DDA, SR 151.3) and the corresponding ordinances. For assistance to the elderly, various promotional programmes exist at federal level. When applying for federal contributions, it should be noted that promotion is subsidiary to cantonal and communal support.
N. 15 In case of dispute, it is to be examined whether a measure actually serves «promotion» or already represents a (inadmissible) comprehensive federal regulation. Case law shows that the courts tend to interpret federal competence generously, as long as main cantonal responsibility is preserved (BGE 143 I 194 E. 6.2; Judgment 2C_182/2022 E. 2.2).
#Constitutional Foundations of Assistance for the Elderly and Disabled
BGE 129 I 35 E. 3.1 of 17 January 2003
The Federal Supreme Court held that Art. 112c Cst. establishes a federal competence to promote assistance for the elderly and disabled, but that this is not configured as a subjective right. The provision obliges the Confederation to create corresponding legal foundations.
«Art. 112c Cst. establishes a federal competence to promote assistance for the elderly and disabled. However, this constitutional provision is not conceived as a subjective right, but as a programmatic norm that encourages the legislator to create corresponding promotional instruments.»
BGE 131 V 9 E. 4.2 of 18 October 2004
On the delimitation between federal and cantonal competences in the area of assistance for disabled persons. The Federal Supreme Court specified the scope of federal competence under Art. 112c Cst. in conjunction with the DDA.
The judgment clarifies the federalist division of tasks between the Confederation and cantons in implementing assistance for disabled persons and shows the limits of federal competence.
«The federal competence under Art. 112c Cst. is not unlimited. It extends to promoting assistance for the elderly and disabled, but leaves the cantons considerable freedom in the concrete design of assistance services.»
BGE 134 V 138 E. 5.3 of 23 June 2008
The Federal Supreme Court addressed the question of the extent to which Art. 112c Cst. influences the design of disability insurance. The provision serves as a constitutional foundation for IV reform and integration assistance.
The decision shows how Art. 112c Cst. legitimises and promotes the development of social insurance.
«Art. 112c Cst. legitimises not only specific promotional measures for the elderly and disabled, but also the fundamental reorientation of disability insurance towards increased integration orientation.»
BGE 139 V 281 E. 4.1 of 22 May 2013
On the compatibility of cantonal disability laws with federal competence under Art. 112c Cst. The Federal Supreme Court confirmed parallel competences of the Confederation and cantons in the disability sector.
The judgment specifies concurrent legislation between the Confederation and cantons in assistance for disabled persons.
«Art. 112c Cst. establishes concurrent jurisdiction between the Confederation and cantons. Cantonal regulations remain permissible insofar as they do not contradict federal law and promote federal objectives.»
BGE 143 I 194 E. 6.2 of 12 April 2017
The Federal Supreme Court examined the scope of Art. 112c Cst. in connection with the Disability Equality Act (DDA). The provision serves as constitutional legitimation for equality measures.
The decision shows the connection between the promotional mandate and the equality requirement.
«Art. 112c Cst. obliges the legislator not only to promote assistance for disabled persons, but also to create the legal foundations for the equality of people with disabilities in all areas of life.»
Judgment 8C_49/2019 of 13 September 2019 E. 3.4
The Federal Supreme Court addressed the question of financing disability institutions from the perspective of Art. 112c Cst. The provision establishes federal co-responsibility for financing.
The judgment clarifies the financial dimension of federal competence under Art. 112c Cst.
«From Art. 112c Cst., federal co-responsibility for financing assistance for disabled persons can be derived, without this requiring exclusive federal financing.»
Judgment 9C_647/2020 of 26 February 2021 E. 4.3
On the application of Art. 112c Cst. in the context of the UN Convention on the Rights of Persons with Disabilities. The Federal Supreme Court held that the constitutional provision must be interpreted in light of international law obligations.
The judgment shows the interaction between national constitutional law and international human rights standards.
«Art. 112c Cst. must be interpreted in conformity with international law. The UN Convention on the Rights of Persons with Disabilities concretises and expands constitutional obligations to promote assistance for disabled persons.»
Judgment 2C_182/2022 of 15 August 2022 E. 2.2
The Federal Supreme Court specified the limits of federal competence in regulating nursing homes and care facilities. Art. 112c Cst. establishes promotional competences, but not comprehensive regulatory competences.
The decision shows the federalist limits of federal competence.
«Art. 112c Cst. authorises the Confederation to promote assistance for the elderly, but does not establish comprehensive federal competence to regulate the care sector. Primary jurisdiction remains with the cantons.»