#1. Legislative History
N. 1 Art. 140 FC continues the tradition of the mandatory referendum that has been enshrined since the Federal Constitution of 1848. The provision was consolidated from Arts. 89, 89bis, 120, 121 and 123 old FC during the total revision of 1999 and systematically reorganized (BBl 1997 I 418 ff.).
N. 2 The most important substantive innovation concerns Art. 140 para. 1 lit. b FC: Accession to supranational communities was explicitly made subject to the mandatory referendum for the first time. This addition was made in response to the EEA referendum of 1992 and was intended to strengthen democratic legitimation for far-reaching integration steps (BBl 1997 I 420).
N. 3 The deletion of Art. 140 para. 2 lit. abis FC (counter-proposals by the Federal Assembly to popular initiatives for total revision) took place in 2003 as part of the Political Rights Reform, since this provision had never been applied in practice (BBl 2001 4803).
#2. Systematic Classification
N. 4 Art. 140 FC, together with Art. 138 (popular initiative for total revision), Art. 139 (popular initiative for partial revision) and Art. 141 (optional referendum), forms the core system of direct democratic participation rights at the federal level. The provision conclusively regulates in which cases a mandatory referendum must be conducted.
N. 5 The mandatory referendum under Art. 140 para. 1 FC differs from the optional referendum (Art. 141 FC) by three characteristics: It takes place automatically without signature collection, requires the approval of the people and cantons (double majority) and concerns particularly important constitutional matters.
N. 6 The systematic division into para. 1 (people and cantons) and para. 2 (people only) follows the logic that constitutional amendments and fundamental treaty matters require federative consent, while popular initiatives as an instrument of popular sovereignty are subject only to the majority of the people.
#3. Elements of the Offence / Normative Content
#a) Paragraph 1: Mandatory Referendum of People and Cantons
N. 7 Constitutional amendments (lit. a): Every formal amendment to the Federal Constitution is subject to the mandatory referendum, regardless of its substantive significance. This also includes purely editorial adjustments or the repeal of obsolete provisions (→ Art. 195 FC).
N. 8 Organizations for collective security (lit. b): According to the Federal Council definition, these are universal or regional organizations that set themselves the goal of offering organized resistance to an aggressor state that breaks the peace. A classic example would be the United Nations with its Chapter VII system.
N. 9 Supranational communities (lit. b): The Federal Council defines these as organizations with independent organs that can issue directly binding decisions for individuals through majority decisions and have relatively comprehensive substantive powers. The EU unquestionably meets these criteria.
N. 10 The classification of the EEA is disputed: Hangartner/Kley and other commentators affirm supranationality because of the dynamic legal development and the powers of the EFTA Surveillance Authority. Häfelin/Haller/Keller, Tschannen and Biaggini, however, deny it, since EEA law is not directly applicable and the adoption of new legal acts requires the consent of the contracting parties.
N. 11 Urgent federal acts without constitutional basis (lit. c): This rare constellation concerns only federal acts that cumulatively: (1) have been declared urgent by the Federal Assembly (→ Art. 165 FC), (2) have no constitutional basis and (3) whose period of validity exceeds one year. They must be put to the vote within one year of adoption.
#b) Paragraph 2: Mandatory Popular Vote
N. 12 Popular initiatives for total revision (lit. a): No such initiative has been submitted since the Federal Constitution of 1999. The procedure is regulated in Art. 138 FC. Unlike partial revision, there is no counter-proposal by the Federal Assembly (↔ Art. 139 FC).
N. 13 Rejected popular initiatives in the form of a general suggestion (lit. b): This form of popular initiative (→ Art. 139 para. 2 FC) hardly occurs in practice. If the Federal Assembly rejects the general suggestion, it submits it to the people for voting. If adopted by the people, the Federal Assembly must draft a corresponding proposal.
N. 14 Disagreement about total revision (lit. c): If the National Council and Council of States cannot agree on whether a total revision should be carried out, the people decide. This provision has never been applied.
#4. Legal Consequences
N. 15 For matters under para. 1, the approval of the people and cantons is required (double majority). The popular majority is calculated according to the majority of valid votes cast nationwide, the cantonal majority according to the majority of cantons (→ Art. 142 FC).
N. 16 For matters under para. 2, the simple popular majority suffices. A cantonal majority is not required, which privileges popular initiative instruments over ordinary constitutional amendments.
N. 17 The conduct of the mandatory referendum is mandatory. There is no discretion and no possibility of waiver. The Federal Assembly must order the vote when the statutory requirements are met (→ Art. 13 para. 1 lit. d PubA).
N. 18 The voting deadline is not legally fixed. Practice shows that typically 3–12 months lie between parliamentary decision and popular vote. For urgent federal acts, the one-year deadline of Art. 140 para. 1 lit. c FC applies as an absolute upper limit.
#5. Points of Contention
N. 19 Conclusive character: The prevailing doctrine (Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, § 1383) holds that Art. 140 FC conclusively regulates the cases of mandatory referendum. A minority advocates for an extraordinary mandatory treaty referendum for particularly important international treaties that do not fall under lit. b (Schulte, Direkte Demokratie und Aussenpolitik, 287 ff.).
N. 20 Supranationality of the EEA: The dispute over the legal qualification of the EEA divides the doctrine. Proponents of supranationality (Hangartner/Kley, Demokratische Rechte, § 831) point to the dynamic legal development and the quasi-judicial powers of the EFTA Surveillance Authority. The opposing view (Häfelin/Haller/Keller, § 1932; Tschannen, Staatsrecht, § 15 N. 28; Biaggini, BV-Kommentar, Art. 140 N. 4) emphasizes that EEA law requires implementation and has no direct effect.
N. 21 Concept of collective security: Villiger (FS Schindler, 805) advocates a broad interpretation that also covers regional security alliances with limited membership. The majority view (Thürer, SZIER 2005, 42; Ehrenzeller, FS Steinberger, 718) restricts the concept to universal or quasi-universal systems like the UN.
#6. Practice Notes
N. 22 When drafting constitutional provisions, it should be noted that even marginal textual changes trigger the mandatory referendum. Purely editorial adjustments should therefore be bundled with substantive revisions.
N. 23 For international treaties, it should be examined early whether the organization exhibits characteristics of supranationality. Decisive factors are: (1) independence of organs, (2) majority decisions, (3) direct applicability of decisions, (4) scope of transferred powers (Epiney, SJZ 1992, 285).
N. 24 The qualification of a federal act as urgent without constitutional basis under Art. 165 para. 2 FC automatically triggers the mandatory referendum if the period of validity exceeds one year. This constitutional consequence must be considered during parliamentary deliberation (Glaser, ZBl 2012, 525).
N. 25 Appeals against the incorrect application of Art. 140 FC are problematic since acts of the Federal Assembly are in principle not challengeable (→ Art. 189 para. 4 FC). The correct assignment to the mandatory or optional referendum must therefore be ensured primarily in the parliamentary procedure.