#1. Legislative History

N. 1 Art. 120 FC was created during the total revision of the Federal Constitution in 1999 and replaced the former Art. 24novies old FC (inserted in 1992). The constitutional provision responded to the rapid developments in genetic technology and the social need for legal guidelines for these new technologies (BBl 1997 I 256). The provision was later supplemented by transitional provision Art. 197 no. 7 FC, which provided for a five-year moratorium on the agricultural use of genetically modified organisms.

N. 2 With Art. 120 FC, the constitutional legislator pursued three central goals: protection against misuse of genetic technology, preservation of the dignity of creatures, and protection of genetic diversity. The concept of «dignity of creatures» represented a novelty in constitutional law and triggered intense debates about its normative content (BBl 1997 I 256 f.).

#2. Systematic Classification

N. 3 Art. 120 FC is found in Section 8 «Housing, Work, Social Security and Health» and stands in close systematic connection with Art. 119 FC (reproductive medicine and genetic technology in the human field). The division of genetic technology regulation into human and non-human fields reflects the different ethical and legal standards in these areas.

N. 4 The norm has manifold cross-references: → Art. 73 FC (sustainability), → Art. 74 FC (environmental protection), → Art. 78 FC (nature and heritage protection), → Art. 80 FC (animal protection) as well as → Art. 104 FC (agriculture). These systematic references underscore the comprehensive protection claim of the constitution in the field of biotechnology.

#3. Elements of the Offence / Norm Content

N. 5 Art. 120 para. 1 FC establishes a general protection requirement against «misuse of genetic technology». The concept of misuse presupposes permissible use and thus implies that genetic technology is not prohibited per se, but only its abusive application.

N. 6 Art. 120 para. 2 sentence 1 FC establishes comprehensive federal competence for issuing regulations on the handling of germinal and genetic material. This competence encompasses all phases from closed systems through release trials to placing on the market.

N. 7 The central and most controversial concept is the «dignity of creatures» in Art. 120 para. 2 sentence 2 FC. The prevailing doctrine understands this to include only non-human living beings (Schmithüsen/Zachariae, Aspekte-Schaerer, 121 ff.), while a minority opinion also includes humans (Errass, Gentechnologie, 61 ff. and ZSR 2002 I 333 f.). The Federal Supreme Court clarified in BGE 135 II 405 E. 4.3 that the dignity of creatures exists independently of genetic technology and must also be respected outside this field.

N. 8 The «safety of humans, animals and the environment» forms another protected interest. It is controversial whether this also includes property protection: Errass (Gentechnologie, 53 f.; SG Komm. BV-Schweizer/Errass, Art. 120 N. 12) affirms this, while Epiney et al. (Gentechnikfreie Gebiete, Rz. 106 i.f., 132 ff.) deny it.

N. 9 The protection of «genetic diversity» aims at preserving biodiversity and stands in close connection with → Art. 78 FC (nature and heritage protection).

#4. Legal Consequences

N. 10 Art. 120 FC is primarily a competence norm that obligates the Confederation to issue protective regulations. Implementation occurred mainly through the Gene Technology Act (GTA), the Environmental Protection Act (particularly Art. 29a-h EPA) and the Agriculture Act (Art. 27a AgricA).

N. 11 The dignity of creatures has direct effect in the balancing of interests in concrete applications. The Federal Supreme Court held in BGE 135 II 384 that in animal experiments with primates, the dignity of creatures must be considered as a balancing factor.

N. 12 Art. 120 FC does not establish subjective rights for individuals, but shapes the interpretation and application of ordinary law in the sense of constitutionally conforming interpretation.

#5. Points of Controversy

N. 13 The concept of «creature» is the subject of a fundamental controversy: While the prevailing doctrine (Schmithüsen/Zachariae, Aspekte-Schaerer, 121 ff.) sees only non-human living beings as covered, Errass (Gentechnologie, 61 ff. and ZSR 2002 I 333 f.) advocates for the inclusion of humans. This question has direct implications for the scope of application of the norm.

N. 14 Also controversial is the scope of protection of «human safety»: Errass (Gentechnologie, 53 f.; SG Komm. BV-Schweizer/Errass, Art. 120 N. 12) and the St. Gallen commentary also see property protection as covered, while Epiney et al. (Gentechnikfreie Gebiete, Rz. 106 i.f., 132 ff.) reject this with regard to the specific property guarantee in → Art. 26 FC.

N. 15 The concrete scope of the dignity of creatures remains controversial. While the Federal Supreme Court advocates a pragmatic balancing solution (BGE 135 II 405), parts of the doctrine demand absolute limits to instrumentalization (ECNH, Die Würde der Kreatur bei Pflanzen, Bern 2008).

#6. Practice Guidelines

N. 16 For the authorization of release trials, a comprehensive risk assessment including all protected interests mentioned in Art. 120 FC is required. The authorities must demonstrate that they have included the dignity of creatures in their balancing (BGE 129 II 286).

N. 17 For the practice of cantonal animal experimentation committees, BGE 135 II 384 has set binding standards: The closer an animal stands to humans, the more significantly its interests must be considered in the balancing.

N. 18 The extended moratorium for GMOs in agriculture (Art. 37a GTA) limits the practical significance of Art. 120 FC in this area. Research in closed systems remains permissible, provided safety precautions are observed.

N. 19 The recent case law on fundamental rights for primates (BGE 147 I 183) shows that the dignity of creatures also has effect outside genetic technology and cantonal developments in this area are not excluded.

#Animal Experiments and the Dignity of Creatures

BGE 135 II 384 of 7 October 2009

The Federal Supreme Court clarified the application of Art. 120 para. 2 Cst. in animal experiments with non-human primates. The dignity of creatures must be considered in the legally prescribed weighing of interests between knowledge gain and animal suffering.

«In weighing interests, the special proximity of non-human primates to humans and the dignity of creatures must be taken into account. This special proximity is legally significant: the higher an animal is in the hierarchy, i.e., the closer it is to humans genetically and sensory-physiologically, the more weight is given to the burden on the animals and the more likely the disproportionality of the experiment.»

BGE 135 II 405 of 7 October 2009

Supplementing BGE 135 II 384, the Federal Supreme Court held that Art. 120 para. 2 Cst. requires consideration of the dignity of creatures also in basic research. The weighing of interests under the Animal Welfare Ordinance must be constitutionally compliant.

«In weighing interests, the special proximity of non-human primates to humans and the dignity of creatures must be taken into account. Although the dignity of creatures is explicitly mentioned only in the competence provision on genetic engineering in the non-human area, it is presupposed there as something existing. Creatures therefore have dignity independently of genetic engineering in the non-human area.»

#Cantonal Fundamental Rights for Animals

BGE 147 I 183 of 16 September 2020

The Federal Supreme Court addressed the cantonal popular initiative «Fundamental Rights for Primates» in Basel-Stadt. It confirmed that cantons may generally go beyond the federal constitutional fundamental rights, including by granting rights to certain animals as defensive rights against the state.

«The guarantee of such special rights in the public law sphere for certain animals by a canton would indeed appear unusual, since the existing fundamental rights of the Federal Constitution and the ECHR are anthropologically oriented. However, it does not in itself contradict superior law, especially since it is not intended to extend fundamental rights designed for humans with a long tradition to animals, and the fundamental distinction between rights for animals and human fundamental rights is not called into question.»

#Release Trials with Genetically Modified Organisms

BGE 129 II 286 of 7 May 2003

In a release trial with genetically modified wheat, the Federal Supreme Court examined the conditions for withdrawing the suspensive effect of an appeal. Art. 120 Cst. obliges consideration of the safety of humans, animals and the environment as well as protection of genetic diversity.

«The constitutional article on genetic engineering and biotechnology in the non-human area obliges the Confederation to issue regulations on the handling of germ cells and genetic material of animals, plants and other organisms, thereby taking account of the dignity of creatures and the safety of humans, animals and the environment and protecting the genetic diversity of animal and plant species.»

#Administrative Court Practice on Animal Experiments

VB.2007.00156 of the Zurich Administrative Court of 27 March 2008

The Zurich Administrative Court applied Art. 120 para. 2 Cst. in assessing animal experiment applications. The constitutional anchoring of the dignity of creatures influences the interpretation of animal welfare law.

«The dignity of creatures according to Art. 120 para. 2 Cst. must be considered when examining animal experiment applications. This applies particularly to experiments with non-human primates, which are subject to increased protection due to their special proximity to humans.»

VB.2007.00157 of the Zurich Administrative Court of 27 March 2008

In proceedings parallel to VB.2007.00156, the Administrative Court specified the application of Art. 120 para. 2 Cst. in invasive animal experiments on rhesus monkeys. The weighing of interests must consider the constitutional requirements.

«In weighing interests between research interests and animal welfare, the constitutional requirements of Art. 120 para. 2 Cst. are decisive. The dignity of creatures sets limits to the instrumentalisation of animals without fundamentally calling research freedom into question.»

#Biotechnology and Direct Payments

B-7579/2015 of the Federal Administrative Court of 6 January 2017

The Federal Administrative Court applied Art. 120 Cst. in assessing direct payment claims in connection with genetically modified organisms. The constitutional provision also influences agricultural legislation.

«Art. 120 Cst. obliges the Confederation to protect against misuse of genetic engineering. This obligation extends to all areas of handling genetically modified organisms, including agricultural use.»