1Die Gesetzgebung auf dem Gebiet des Zivilrechts und des Zivilprozessrechts ist Sache des Bundes.
2Für die Organisation der Gerichte und die Rechtsprechung in Zivilsachen sind die Kantone zuständig, soweit das Gesetz nichts anderes vorsieht.
Overview
Art. 122 FC allocates competences between the Confederation and the cantons in civil law. The Confederation has exclusive competence to enact laws on civil law (property law, contract law, family law) and civil procedure law (judicial proceedings). This federal competence is comprehensive and conclusive – in principle, no room remains for cantonal civil law under Art. 5 CC (Göksu, BSK BV, Art. 122 N. 5). The cantons, on the other hand, are responsible for organising their courts and for the practical administration of justice in civil matters.
An example: Swiss law of obligations (CO) regulates purchase contracts uniformly throughout Switzerland. When someone buys a car, the same rules apply in Zurich as in Geneva. However, the cantons may themselves determine which court has jurisdiction in disputes and how court proceedings are organised. They must, however, apply the federal procedural rules of the Code of Civil Procedure (CCP).
The allocation of competences has practical significance: If a canton enacts its own civil law rules, these are unconstitutional (BGE 146 I 70). The Federal Supreme Court applies various theories to distinguish between public law and private law, with no theory having a priori priority (BGE 146 I 70 E. 5.2). It is disputed whether cantons may in exceptional cases use civil law instruments for public law purposes – older case law (BGE 73 I 228) permitted this, while more recent doctrine (Göksu, BSK BV, Art. 122 N. 6) rejects it.
When establishing their court organisation, the cantons must observe federal law requirements, particularly the double degree of jurisdiction under Art. 75 para. 2 FSCA and the jurisdictional rules of the CCP (BGE 137 III 217). In voluntary jurisdiction (guardianship matters), the cantons have greater discretion, but must apply the CCP when federal law itself prescribes a judicial authority (BGE 139 III 225).
This allocation of competences ensures uniform civil law throughout Switzerland while allowing for cantonal diversity in court organisation and judicial practice.
Doctrine
#1. Legislative History
N. 1 Art. 122 BV corresponds largely to the former Art. 64 old Const., but expressly extends the federal competence to civil procedure law. The total revision of the Federal Constitution of 1999 thus incorporated into the constitutional text a practice that had been established for a long time. Already under the old Federal Constitution, the Confederation had enacted procedural regulations based on the civil law competence, for example in the field of debt collection and bankruptcy law. The Federal Council Message on a new Federal Constitution of 20 November 1996 states that the explicit mention of civil procedure law was made «for the sake of clarity and completeness» (BBl 1997 I 1, 324).
N. 2 The constitutional anchoring of the Confederation's civil procedure law competence created the foundation for the unification of Swiss civil procedure law. After decades of preparatory work, the Swiss Code of Civil Procedure of 19 December 2008 could be enacted based on Art. 122 para. 1 BV, which entered into force on 1 January 2011 and replaced the 26 cantonal civil procedure codes.
#2. Systematic Classification
N. 3 Art. 122 BV is found in Title 3 of the Federal Constitution on Confederation, Cantons and Municipalities, there in Chapter 3 on the division of tasks between the Confederation and the Cantons. The provision belongs to the competence provisions that assign the Confederation comprehensive legislative jurisdiction over a specific subject area. In contrast to other competence provisions that grant the Confederation only partial regulatory powers, Art. 122 BV involves a so-called complete codification competence.
N. 4 The systematic position between the competence provisions for criminal law (Art. 123 BV) and the law on metrology (Art. 125 BV) underscores the central importance of legal unification in the private law sector. → Art. 42 para. 2 BV refers to the Federal Constitution for the division of competences, → Art. 49 para. 1 BV establishes the primacy of federal law. The residual cantonal competence according to → Art. 3 BV only applies insofar as the Federal Constitution does not assign jurisdiction to the Confederation.
N. 5 Art. 5 CC concretises the constitutional competence order for civil law. It provides that cantonal law in civil matters only applies where federal civil law authorises the cantons to do so. This authorisation can be express or result from the nature of the matter. → Art. 6 CC enables the cantons to enact supplementary public law regulations, provided these are not excluded by the purpose of federal civil law.
#3. Elements of the Offence / Normative Content
#Civil Law (Para. 1)
N. 6 The concept of civil law encompasses, according to prevailing doctrine and consistent case law, the entire private law, i.e., legal relationships between equal legal subjects. Göksu (BSK BV, Art. 122 N. 7) emphasises that civil law includes all legal norms that pursue typically private law objectives and traditionally belong to the private law domain. The Federal Supreme Court applies methodological pluralism to distinguish between public law and private law, whereby no single theory of distinction has a priori precedence (BGE 146 I 70 para. 5.2).
N. 7 The Confederation's complete codification competence is comprehensive. Göksu (BSK BV, Art. 122 N. 5) states: «From the principle of complete codification it follows that there is no room left for cantonal civil law at all, not even in areas that are not regulated by federal law from a civil law perspective.» This position contrasts with older Federal Supreme Court case law (BGE 73 I 228), which permitted the cantons under certain conditions to use civil law means within the framework of public law orders.
N. 8 Parts of the doctrine take a less absolute position. They argue that while Art. 122 BV assigns a subject area comprehensively to the Confederation for legislation, it does not do so exclusively, which allows the cantons to enact their own civil law, provided the Confederation has not legislated conclusively (Göksu, BSK BV, Art. 122 N. 6, with reference to dissenting doctrinal opinions). This controversy is practically significant in assessing cantonal regulations with civil law effects, for example in the area of building law or pre-emption rights in favour of public authorities.
#Civil Procedure Law (Para. 1)
N. 9 Civil procedure law encompasses all norms that regulate judicial proceedings in civil matters. According to the definition in the Federal Council Message on the Swiss Code of Civil Procedure, this includes in particular the principles of procedure, the system of jurisdiction, the requirements for actions and appeals, evidence, and the enforcement of civil law claims (BBl 2006 7221, 7232).
N. 10 The distinction between federal civil procedure law and cantonal court organisation proves challenging in practice. The Federal Supreme Court clarified in BGE 139 III 225 that the CPC only applies directly in the area of voluntary jurisdiction where federal law itself prescribes a judicial authority. Insofar as the canton designates the competent authority, it also regulates procedural law.
#Organisation of Courts (Para. 2)
N. 11 The organisation of courts encompasses, according to Göksu (BSK BV, Art. 122 N. 59-60), the creation of courts, their designation, their hierarchical structure, their territorial jurisdiction, as well as the requirements for the election of judges. These areas remain principally within cantonal competence, insofar as federal law contains no deviating provisions.
N. 12 The federal law restrictions on cantonal organisational autonomy are manifold. → Art. 75 para. 2 FSCA requires a double cantonal instance procedure for access to the Federal Supreme Court. The CPC contains mandatory requirements for subject-matter and functional jurisdiction in Art. 3 ff. The Federal Supreme Court confirmed in BGE 137 III 217 that such federal law requirements are compatible with cantonal organisational sovereignty.
#Administration of Justice in Civil Matters (Para. 2)
N. 13 The cantonal competence for the administration of justice means that the cantonal courts are responsible for applying substantive civil law and conducting civil procedural proceedings. Göksu (BSK BV, Art. 122 N. 68) characterises this competence as a legal nature. The restrictions result from special federal law provisions, such as the jurisdiction of the Federal Patent Court for patent disputes or arbitration tribunals in the health insurance sector (BGE 135 V 443).
#4. Legal Consequences
N. 14 The exclusive legislative competence of the Confederation in civil law has the consequence that cantonal enactments that regulate substantive civil law or civil procedure law are unconstitutional and thus void. The Federal Supreme Court examines compliance with the competence order ex officio and annuls cantonal provisions that exceed competence (BGE 146 I 70 para. 5).
N. 15 For the cantons, Art. 122 para. 2 BV creates the obligation to provide a functioning court organisation and ensure the administration of justice in civil matters. This obligation is concretised in → Art. 30 para. 1 BV and → Art. 6 No. 1 ECHR, which guarantee the right to an independent and impartial court. The cantons must in particular ensure the double instance procedure required by → Art. 75 para. 2 FSCA.
N. 16 Federal law delegations to the cantons are permissible and frequent. Thus Art. 4 CPC authorises the cantons to designate the territorially competent courts, Art. 3 CPC to determine the subject-matter competent courts within the federal law requirements. Such delegations must, however, remain within the framework of the constitutional competence order and may not endanger substantive legal unity.
#5. Controversies
N. 17 The central controversy concerns the scope of federal complete codification. While Göksu (BSK BV, Art. 122 N. 6) takes the position that «neither the mentioned (old) Federal Supreme Court case law nor the further-reaching conclusions in doctrine can be defended with regard to Art. 122 BV and Art. 5 CC», other authors maintain the possibility of cantonal civil law regulations with public law purposes. These different views have practical consequences, for example with cantonal pre-emption rights or building law easements.
N. 18 Another point of controversy concerns the delimitation methodology. Fritz Gygi developed the subject area theory, which does not start from the distinction between public law and private law, but connects to the subject areas for which federal competence is provided (Göksu, BSK BV, Art. 122 N. 41). Göksu criticises that while this theory is tailored to the constitutional provision, it fails in other cases where a distinction must be made between public law and private law (BSK BV, Art. 122 N. 41).
N. 19 The scope of cantonal procedural autonomy in the area of voluntary jurisdiction is disputed. While the Federal Supreme Court in BGE 139 III 225 grants the cantons extensive design freedom, provided federal law does not prescribe a judicial authority, parts of the doctrine advocate for more extensive application of the CPC to ensure procedural unity.
#6. Practice Notes
N. 20 When examining cantonal enactments, it must first be clarified whether these regulate substantive civil law or civil procedure law. What is decisive is not the formal designation or classification by the cantonal legislator, but the material content of the provision. Regulations on ownership, possession, contracts, or family law relationships regularly fall within federal competence, even if they are contained in a cantonal law on public law.
N. 21 Cantonal authorities must observe the mandatory federal law requirements when designing their court organisation. These include in particular the jurisdiction rules of Art. 3-8 CPC, the requirements for double instance procedure according to Art. 75 para. 2 FSCA, as well as special statutory provisions such as Art. 440 f. CC for the child and adult protection authorities. Scope exists in the designation and hierarchical structure of courts as well as in determining territorial jurisdictions.
N. 22 For legal practice, careful analysis of the relevant Federal Supreme Court case law is recommended for competence questions. The Federal Supreme Court has shown a tendency in recent times to examine cantonal regulations with civil law effects more strictly for their compatibility with Art. 122 BV (BGE 146 I 70). At the same time, it continues to recognise certain design scope for the cantons in the area of court organisation and in voluntary jurisdiction proceedings (BGE 139 III 225).
Case Law
#Overview
Art. 122 BV regulates the distribution of powers between the Confederation and the cantons in civil law and civil procedural law. Case law has clarified this division in three core areas: the exclusive federal legislative competence for substantive civil law and procedural provisions (para. 1), the cantonal competence that remains for court organisation and adjudication (para. 2), as well as the limits of this division of competences in specific procedural matters. The Federal Supreme Court has thereby developed the fundamental principles for the delimitation between federal procedural regulation and cantonal organisational autonomy.
Status: December 2024
#Federal Legislative Competence for Civil Law and Civil Procedural Law
#Comprehensive Regulation by Federal Law
BGE 146 I 70 of 30 April 2019 — Municipal provisions on affordable housing Confirmation of the exclusive federal legislative competence under Art. 122 para. 1 BV for civil law. Judgment concerns the delimitation between cantonal public law and federal civil law norms in municipal housing construction regulations.
«According to Art. 122 para. 1 BV, legislation in the field of civil law is a matter for the Confederation. According to Art. 109 para. 1 BV, the Confederation is competent to enact provisions against abuses in tenancy law.»
BGE 140 III 155 of 10 February 2014 — Exclusive jurisdiction of the commercial court Comprehensive regulation of subject-matter jurisdiction for commercial disputes by federal law. Confirmation that when a canton creates a commercial court, no further cantonal jurisdiction regulation is permissible.
«With Art. 6 CCP, the federal legislator has comprehensively regulated subject-matter jurisdiction for commercial disputes (Art. 6 para. 2 lit. a-c CCP) in the event that a canton has made use of the possibility to create a commercial court. There is no room for further jurisdiction regulation by the canton.»
#Delimitation from Cantonal Public Law
BGE 139 III 225 of 25 April 2013 — Applicability of the CCP in voluntary jurisdiction Distinction between federal procedural regulation and cantonal authority competence. Direct application of the CCP only where federal law prescribes a judicial authority.
«In the area of voluntary jurisdiction, the CCP finds direct application only where federal law itself prescribes a judicial authority. Insofar as the canton designates the competent authority, it also regulates procedural law; if it declares the CCP applicable, this constitutes cantonal law.»
#Cantonal Court Organisation and Adjudication
#Limits of Cantonal Organisational Autonomy
BGE 137 III 217 of 11 April 2011 — Single-instance cantonal appeal procedure in commercial register law Confirmation of cantonal organisational sovereignty within federal law requirements. Compatibility of single-instance appeal procedure with the delegation norm in Art. 929 CO.
«Art. 165 para. 2 CRO can rely on the delegation norm of Art. 929 para. 1 CO and is in accordance with the principle of 'double instance' according to Art. 75 para. 2 SCA.»
BGE 142 III 795 of 27 October 2016 — Cantonally regulated measures in child and adult protection Assignment of child and adult protection measures to civil law appeal despite their public law character. Confirmation of the civil law nature based on federal legislative competence under Art. 122 BV.
«It cannot be denied that the provisions on child and adult protection are basically to be designated as public law. Equally recognised, however, is that the corresponding norms were enacted based on the Confederation's civil law competence (Art. 122 BV).»
#Procedural Law and Cantonal Competence
BGE 143 III 395 of 12 June 2017 — Action for annulment under DEBA against the Confederation Classification of debt enforcement procedures in the CCP system. Determination of jurisdiction in actions for annulment against the treasury according to federal law requirements.
«The action for annulment according to Art. 285 ff. DEBA against the treasury belongs to the judicial matters of the DEBA, which are regulated by the CCP.»
#Special Procedural Questions
#Appeal Procedures and Instance Hierarchy
BGE 135 V 443 of 9 November 2009 — Arbitration tribunals in health insurance disputes Delimitation between civil law and social insurance law procedures. Competence of specialised courts also in disputes outside mandatory health insurance.
«Even if an obligation to pay benefits within the framework of mandatory health insurance is out of consideration, the arbitration tribunal for health insurance disputes according to Art. 89 HIA is competent for judging disputes between insurers and service providers.»
#Delegation and Ordinance Law
BGE 132 III 470 of 20 April 2006 — Merger of public law corporations Application of civil law merger provisions to special statutory corporations. Limits of application of the Merger Act to public law organisational forms.
«The SBB is a special statutory corporation under public law and thus not a legal entity within the meaning of the Merger Act.»
#Recent Developments
#Constitutional Law Aspects
BGE 147 I 183 of 23 March 2005 — Cantonal popular initiative "Fundamental rights for primates" Limits of cantonal legislation in matters regulated by federal law. Review of the compatibility of cantonal initiatives with superior law.
«Grounds for declaring a cantonal popular initiative in the Canton of Basel-Stadt invalid exist if it extends to areas that fall under the exclusive competence of the Confederation.»