1The Confederation shall legislate on health and accident insurance.
2It may declare health and the accident insurance to be compulsory, either in general terms or for individual sections of the population.
1The Confederation and the Cantons shall within the scope of their powers ensure the adequate provision of high quality primary medical care that is accessible to all. They shall recognise and promote family medicine as an essential component of primary care.
2The Confederation shall legislate on:
basic and continuing education and training for family medicine professions and the requirements for practising these professions;
appropriate remuneration for family medicine services.
1The Confederation and Cantons shall recognise and promote nursing care as an important component of health care and shall ensure that sufficient provision of high-quality nursing care is accessible to all.
2They ensure that a sufficient number of qualified nurses are available to meet the increasing demand and that persons working in nursing are deployed in accordance with their training and skills.
77* With transitional provision.
#Overview
Art. 117 Cst. gives the Confederation two important powers: It must enact legislation on health and accident insurance (para. 1) and it may make these insurances mandatory for all or certain groups (para. 2). This constitutional provision is the foundation for our current Health Insurance Act (HIA) of 1996 and the Accident Insurance Act (AIA) of 1984.
Who is affected? All persons with residence in Switzerland must take out health insurance (Art. 3 HIA). Employees are additionally covered by accident insurance through their employer (Art. 1a AIA). Self-employed persons may voluntarily take out accident insurance.
What legal consequences arise? The mandatory health insurance begins automatically upon taking up residence. Those who fail to insure themselves are assigned ex officio to a health insurer and must pay default interest. Premiums may be subsidised by the state for low incomes (Art. 65 HIA). In case of accidents, accident insurance pays primarily, health insurance subsidiarily.
Practical example: A German student moves to Basel. She must register with a Swiss health insurer within three months. If she additionally takes on a part-time job, she is automatically also covered by accident insurance. If she earns little, she may apply to the canton for premium subsidies.
Limits of federal competence: The Confederation regulates only the insurance relationship, not the entire health care system. Hospitals, doctors and drug approvals remain principally a matter for the cantons. This division of competences shapes our federalist health system to this day.
Art. 117 FC — Health Insurance and Accident Insurance
#Doctrine
#1. Legislative History
N. 1 Art. 117 FC continues the competence provision of Art. 34bis of the Federal Constitution of 1874 (oFC). Art. 34bis para. 1 oFC authorised the Confederation to «establish health and accident insurance through legislation» and expressly provided for the possibility of declaring insurance compulsory for certain population groups. That provision formed the constitutional basis for the Federal Act on Health and Accident Insurance (KUVG) of 1911 and for subsequent social insurance statutes, in particular the UVG (1981) and the KVG (1994).
N. 2 In its dispatch of 20 November 1996 on a new Federal Constitution, the Federal Council expressly stated that the new wording of Art. 117 FC was intended to have the same scope as the former Art. 34bis oFC (BBl 1997 I 331). The linguistic adjustment — from «establish» to «shall legislate on» — reflected a more modern drafting style without altering the substance of the competence. The Federal Office of Justice confirmed in an opinion dated 29 September 2008 that Art. 117 para. 1 FC must be understood as a comprehensive legislative competence, leaving the Confederation virtually free to shape the law on health and accident insurance (VPB 2009.1, recital 1.2.2, citing Ehrenzeller, St. Gallen Commentary on the FC, 2nd ed. 2008, Art. 117 N 1 ff.).
N. 3 Para. 2 of Art. 117 FC corresponds to Art. 34bis para. 3 oFC, which already contained the power to declare insurance compulsory in general or for specific groups. This instrument enabled the gradual development of today's social insurance system: under the KUVG, compulsory insurance initially applied only to certain industrial and commercial sectors; the UVG (1981) extended it to all employees working in Switzerland; the KVG (1994) introduced the general obligation to take out health insurance for the entire population resident in Switzerland.
#2. Systematic Classification
N. 4 Art. 117 FC appears in Chapter 10 of the Federal Constitution («Social Security»), which consolidates the Confederation's social-policy competences. It constitutes an exclusive legislative competence of the Confederation in the area of health and accident insurance as part of social insurance law. The provision is a competence norm that does not, by its terms, establish subjective rights and is therefore not directly justiciable.
N. 5 Art. 117 FC is closely connected systematically with:
- → Art. 41 FC (social goals): The social goals, in particular the provision of healthcare (Art. 41 para. 1 lit. b and d FC), underpin the purpose of federal regulation, but do not themselves give rise to enforceable claims.
- ↔ Art. 110–116 FC: The other competence norms in the field of social security (employment, OASI/DI, supplementary benefits, family allowances, unemployment insurance) together with Art. 117 FC form the constitutional foundation of the Swiss social insurance system.
- → Art. 118 FC (protection of health): Responsibility for general health policy rests in principle with the cantons; Art. 117 FC expressly limits federal competence to the insurance relationship, not to the healthcare system as a whole (→ N. 10 f.).
- → Art. 36 FC (restriction of fundamental rights): Any compulsory insurance obligation interferes with freedom of contract and economic freedom (Art. 27 FC); this interference is expressly provided for in constitutional law by Art. 117 para. 2 FC and is thereby legitimised by the Constitution itself.
- → Art. 5 FC (rule of law): The exercise of the competence under Art. 117 FC by the Confederation and the cantons is subject to the general requirements of the rule of law.
N. 6 The implementing legislation based on Art. 117 FC is the KVG (SR 832.10) for compulsory health care insurance and the UVG (SR 832.20) for compulsory accident insurance. Both statutes constitute comprehensive federal-law regimes that largely supersede cantonal law within their respective fields of application (→ Art. 49 FC).
#3. Elements of the Provision / Normative Content
3.1 Para. 1: Legislative Competence
N. 7 Art. 117 para. 1 FC confers on the Confederation a comprehensive and exclusive competence to legislate on health and accident insurance. The phrase «shall legislate on» is formulated as a mandatory provision: the Confederation is not merely empowered but constitutionally required to regulate this subject matter; a legislative abstention would be unconstitutional (Ehrenzeller, St. Gallen Commentary on the FC, 4th ed. 2023, Art. 117 N 3; Häfelin/Haller/Keller/Thurnherr, Swiss Federal Constitutional Law, 10th ed. 2020, N 2090).
N. 8 The competence covers both compulsory and voluntary health and accident insurance. It also extends to the creation of a monopoly for individual insurers, provided this is justified by sufficient public interests. The partial monopoly of SUVA in compulsory accident insurance (Art. 66 UVG) rests on this competence basis; the Federal Office of Justice confirmed its constitutionality (VPB 2009.1, recitals 1.2.1–1.2.3), as has the prevailing doctrine (Ehrenzeller, St. Gallen Commentary on the FC, 4th ed. 2023, Art. 117 N 1; Häfelin/Haller/Keller/Thurnherr, op. cit., N 717).
N. 9 The competence under para. 1 also covers rules governing the relationship between patients and healthcare providers, insofar as this is relevant to the insurance relationship. The Confederation may in particular enact tariff regulations, catalogues of benefits, and admission requirements for healthcare providers. This was expressly confirmed by the Federal Supreme Court in BGE 130 I 26 E. 4.3, where it held that health insurance under Art. 117 para. 2 FC «is in itself at odds with the private autonomy underlying economic freedom» but is «expressly so provided for in the Constitution».
N. 10 At the same time, Art. 117 FC has a clearly defined jurisdictional limit: under this provision the Confederation is not responsible for the entire healthcare and hospital system, but only for insurance, i.e. the relationship between insurer and insured. The Federal Supreme Court clarified this in BGE 135 V 443 E. 3.5:
«Under Art. 117 FC, the Confederation shall legislate on health and accident insurance. It may declare health and accident insurance compulsory for the entire population or for individual population groups. Under this constitutional provision, the Confederation is therefore not responsible for the entire healthcare and hospital system, but only for insurance, i.e. the relationship between insurer and insured.»
General health policy, the hospital system, and public health law thus remain in principle matters for the cantons (→ Art. 3 FC; Art. 39 KVG as a borderline area).
3.2 Para. 2: Declaration of Compulsory Insurance
N. 11 Art. 117 para. 2 FC confers on the Confederation the power (permissive norm) to declare health and accident insurance compulsory for the entire population or for individual population groups. This is an authorisation, not a mandate; it is for the federal legislature to decide, as a matter of political discretion, whether and to what extent it exercises this power.
N. 12 The general insurance obligation has been realised for health insurance in Art. 3 KVG and for accident insurance (for employees) in Art. 1a UVG. The group-specific insurance obligation (for «individual population groups») allows for substantively limited solutions of the kind that characterised the historical development of social insurance law.
N. 13 The declaration of compulsory insurance constitutes an interference with freedom of contract and economic freedom (Art. 27 FC). Because this interference is itself provided for by Art. 117 para. 2 FC, it requires a statutory basis pursuant to Art. 36 para. 1 FC (Art. 3 KVG, Art. 1a UVG) but is not subject to the strict requirements of Art. 36 paras. 2 and 3 FC that apply to ordinary restrictions of fundamental rights. In this regard the Federal Supreme Court held in BGE 130 I 26 E. 4.3 that compulsory insurance «is in itself at odds with the private autonomy underlying economic freedom, but is expressly so provided for in the Constitution.»
N. 14 It is constitutionally significant that Art. 117 para. 2 FC implicitly also provides the basis for needs-assessment clauses and admission restrictions in the area of social health insurance. The possibility of an admission freeze for healthcare providers enshrined in Art. 55a KVG is, according to the case law, at least indirectly based on this constitutional provision, since a needs-assessment clause relates not directly to the practice of a profession but to admission to the social insurance system (BGE 130 I 26 E. 6.2).
#4. Legal Consequences
N. 15 Art. 117 FC establishes, first and foremost, a legislative duty of the Confederation in the field of health and accident insurance. This duty has been fulfilled by the KVG and the UVG. As long as the Confederation exercises its competence, the cantons are in principle no longer authorised to legislate independently in this regulatory area (principle of the derogatory force of federal law, → Art. 49 FC).
N. 16 The cantons retain, however, a residual competence in areas not conclusively regulated by federal law. This manifests itself in particular in:
- premium subsidies (Art. 65 ff. KVG): The Confederation obliges the cantons to grant premium subsidies; their concrete design remains with the cantons;
- the cantonal hospital list (Art. 39 KVG): Inclusion on the hospital list is a matter for the cantons within the framework of federal requirements;
- hospital planning (Art. 39 para. 1 lit. d KVG): In this area the cantons retain an independent planning competence.
N. 17 Cantonal compulsory health insurance schemes remain permissible even after the entry into force of the KVG, provided they do not call into question the federal compulsory insurance scheme. In particular, cantons may declare a subsidiary accident insurance within the framework of health insurance compulsory, provided no double insurance with the UVG compulsory scheme arises (BGE 112 V 283 E. 2; confirmed under the old law; the principles continue to apply).
N. 18 In relation to supplementary private insurance (e.g. semi-private and private hospital cover), Art. 117 FC does not have direct effect. In accordance with its constitutional basis, the KVG regulates only social health insurance; provisions on the amount of remuneration to be borne not by social health insurance but by a private insurer find no support in Art. 117 FC (BGE 135 V 443 E. 3.5). This corresponds to the constitutionally anchored separation of basic and supplementary insurance.
#5. Contested Issues
N. 19 Scope of federal competence vis-à-vis cantonal health law. A central contested issue concerns the question of how far federal regulation may encroach upon cantonal competences (general healthcare, hospital policy). Poledna (St. Gallen Commentary on the FC, 2nd ed. 2008, Art. 117 N 6) argues that the constitutional basis covers regulations affecting the healthcare system «insofar as this is relevant to insurance», thereby granting the federal legislature broad discretion. Ehrenzeller (St. Gallen Commentary on the FC, 4th ed. 2023, Art. 117 N 8 ff.) likewise emphasises that the Confederation holds comprehensive regulatory competence owing to the close substantive connection between insurance and the provision of services. The Federal Supreme Court follows this broad understanding and permits federal provisions on the admission of healthcare providers, tariff-setting, and hospital planning (as implementing legislation to the KVG) (BGE 135 V 443 E. 3.5).
N. 20 Permissibility of needs-assessment clauses. Whether Art. 117 FC implicitly provides a sufficient constitutional basis for needs-assessment clauses (admission freeze under Art. 55a KVG) was contested in academic commentary. Mattig (Limits of Hospital Planning from a Constitutional Law Perspective, Zurich 2002, p. 217) answered in the affirmative, arguing that Art. 117 FC implicitly contains an exception to economic freedom. Hofmann (La clause du besoin pour les médecins et la Constitution fédérale, AJP 2003, p. 795) denied that Art. 117 FC provided a sufficient constitutional basis and regarded the provision as problematic. In BGE 130 I 26 E. 6.2 the Federal Supreme Court ultimately endorsed Mattig's view: the needs-assessment clause is at any rate covered by Art. 191 FC, since Art. 55a KVG is a federal statute; moreover, Art. 117 FC «implicitly» provides the basis for such a restriction, since it concerns admission to the social insurance system and not the practice of a profession as such.
N. 21 SUVA partial monopoly. The compatibility of SUVA's partial monopoly (Art. 66 UVG) with economic freedom (Arts. 27 and 94 FC) was long the subject of academic debate. In its opinion VPB 2009.1 (recitals 1.2.1–1.2.7) the Federal Office of Justice thoroughly affirmed the constitutionality of the partial monopoly, referring to Art. 117 para. 1 FC as a comprehensive legislative competence that also encompasses the creation of a monopoly; the social-policy interest in a solidary accident insurance scheme and in containing costs justifies the unequal treatment associated with the monopoly. This assessment is shared by the prevailing doctrine (Häfelin/Haller/Keller/Thurnherr, op. cit., N 717; Rhinow/Schefer/Uebersax, Swiss Constitutional Law, 3rd ed. 2016, N 3325 ff.).
N. 22 Relationship to Art. 27 FC (economic freedom). Within the scope of application of Art. 117 FC, economic freedom enjoys a reduced degree of protection against socially motivated regulations. The Federal Supreme Court has repeatedly held that economic freedom carries only limited protective effect within a system that is itself «largely removed from economic freedom» (BGE 130 I 26 E. 4.3 and 4.5). Vallender (St. Gallen Commentary on the FC, 3rd ed., Art. 27 N 44 f.) criticises this tendency and emphasises that even in the field of social health insurance a core content of economic freedom must remain untouched; the unequal treatment of new and existing authorisations in the context of the admission freeze raises regulatory concerns.
#6. Practical Notes
N. 23 Delimitation of federal and cantonal competence. In practice, the decisive question is whether a given rule concerns the insurance relationship (federal law) or general health law (cantonal law). The insurance relationship encompasses premium obligations, benefit obligations, tariffs, and the admission of healthcare providers at the expense of social insurance. General hospital policy, licensing law, and public health policing remain reserved to the cantons, as long as no federal-law nexus exists.
N. 24 Compulsory insurance schemes. Cantonal compulsory health insurance schemes may coexist alongside the KVG obligation, provided they are designed as subsidiary and do not create double insurance with the federal compulsory scheme (BGE 112 V 283 E. 2). The key questions to examine are: (1) Does a federal compulsory scheme already exist for the insured risk? (2) Is the cantonal insurance expressly designed as subsidiary? (3) Can insured persons avoid the premium burden by demonstrating adequate alternative coverage?
N. 25 Fundamental right of economic freedom. Anyone contesting a restriction of economic freedom based on Art. 117 FC (e.g. an admission freeze or a tariff obligation) must bear in mind that the Federal Supreme Court treats federal statutory provisions as binding pursuant to Art. 191 FC, even where their constitutionality is open to question. Judicial review is limited to dependent ordinances and cantonal implementing legislation. A challenge to the constitutionality of Art. 3 KVG or Art. 1a UVG as such is not available before the Federal Supreme Court (BGE 130 I 26 E. 2.2).
N. 26 Tariff law and supplementary insurance. The tariff protection provision of Art. 44 KVG applies only to benefits provided within the framework of compulsory health care insurance (general ward). The KVG tariff rules do not as a matter of principle apply to benefits in the private or semi-private ward of a hospital; the applicable law is cantonal tariff or contract law (BGE 135 V 443 E. 3.10). In disputes concerning private-ward tariffs, insured persons and healthcare providers must pursue the correct legal avenue (cantonal law, and possibly competition law); the KVG arbitration tribunal has no jurisdiction over such questions (BGE 134 V 269 E. 2.4).
N. 27 Popular initiatives. Constitutional amendments in the area of Art. 117 FC (e.g. single-insurer initiatives) affect the fundamental architecture of social insurance law. Given the mutual interdependencies with Arts. 111, 113, 114, and 116 FC as well as with the implementing statutes, comprehensive coordination questions must be resolved for such projects, in particular the relationship to the ATSG (SR 830.1) and to federal supervision of insurers (FINMA; for KVG insurers: FOPH).
#Case Law
#Constitutional Mandate and Legislative Competence
BGE 135 V 443 of 9 November 2009
Constitutional basis for health insurance
The Federal Supreme Court clarifies that Art. 117 FC grants the Confederation competence to regulate health and accident insurance, but does not authorize comprehensive regulation of the entire health care system.
«According to Art. 117 FC, the Confederation shall legislate on health and accident insurance. It may declare health and accident insurance to be compulsory, either in general or for individual groups of the population. Under this constitutional provision, the Confederation is therefore not responsible for the entire health care and hospital system, but only for insurance, i.e. the relationship between insurer and insured.»
#Relationship between Confederation and Cantons
BGE 130 I 26 of 27 November 2003
Admission restrictions for service providers
The Federal Supreme Court confirms that the Confederation is empowered under Art. 117 FC to issue regulations on admission to practice at the expense of compulsory health insurance, even if these interfere with economic freedom.
«The restriction on the admission of service providers to practice at the expense of compulsory health care insurance, issued by the Federal Council pursuant to Art. 55a HIA and specified by the Governing Council of the Canton of Zurich, violates neither the Agreement on the Free Movement of Persons nor economic freedom.»
BGE 112 V 283 of 1 January 1986
Cantonal compulsory health insurance schemes
The Federal Supreme Court clarifies the relationship between federal and cantonal insurance obligations and confirms the competence of cantons to declare subsidiary accident insurance within the framework of health insurance to be compulsory.
«Even after the AIA enters into force, the cantons are entitled to declare accident insurance within the framework of health insurance to be compulsory, provided it is subsidiary insurance and thus does not create double insurance in relation to the Confederation's compulsory accident insurance (AIA).»
#Compulsory Insurance and Premium Reductions
BGE 122 I 343 of 12 November 1996
Premium reductions for seasonal workers
The Federal Supreme Court confirms that the Confederation's constitutional competence to declare health insurance compulsory leaves cantons a certain margin of discretion in implementation, particularly regarding premium reductions.
«Art. 65 HIA does not require that under federal law all persons with compulsory insurance fall within the personal scope of premium reductions, regardless of the duration of their stay and the intensity of their relationship to Switzerland.»
#Limits of Federal Competences
BGE 144 V 388 of 1 January 2015
Subsidiary daily sickness benefit insurance
The Federal Supreme Court examines the limits of competence under Art. 117 FC in regulating private supplementary insurance and confirms the clear separation between compulsory and voluntary health insurance.
The case law shows a consistent interpretation of Art. 117 FC as a specific competence norm for social insurance in the health sector, which empowers the Confederation to comprehensively regulate compulsory health and accident insurance, but respects the fundamental competence of cantons in the health care system.