#1. Legislative History

N. 1 The optional referendum according to Art. 141 Fed. Const. has been a cornerstone of Swiss democracy since 1874. The constitutional revision of 1999 adopted the optional referendum essentially unchanged from Art. 89 old Fed. Const. The central innovation concerned the systematic extension to international treaties.

N. 2 The Dispatch on the new Federal Constitution of 20 November 1996 (BBl 1997 I 1) emphasized the importance of the optional referendum as a «brake» against unwanted legislation: «The optional referendum has proven itself as an important instrument of direct democracy, enabling voters to bring down federal acts and important resolutions of the Federal Assembly retroactively» (BBl 1997 I 420).

N. 3 The extension to international treaties occurred gradually: in 1921 for indefinite and non-terminable treaties, in 1977 for joining international organisations and in 2003 finally for treaties with important law-making provisions (BBl 2001 4590, 4803).

#2. Systematic Classification

N. 4 Art. 141 Fed. Const. forms, together with Art. 140 Fed. Const. (mandatory referendum) and Art. 139 Fed. Const. (popular initiative), the core of popular rights at the federal level. The optional referendum stands systematically between the popular initiative as an instrument of innovation and the mandatory referendum as an instrument of constitutional development.

N. 5 The connection to Art. 34 para. 2 Fed. Const. (guarantee of political rights) is fundamental. The optional referendum concretises the general guarantee of free opinion formation and authentic voting. There is also a close relationship to Art. 136 Fed. Const., which defines political rights.

N. 6 In the area of international treaties, Art. 141 Fed. Const. supplements the foreign policy competence norms (→ Art. 54 Fed. Const., → Art. 166 Fed. Const., → Art. 184 Fed. Const.). The democratic legitimation of international obligations occurs not only through parliamentary approval, but potentially also through the people.

#3. Elements of the Offence / Content of the Norm

#Persons Entitled to Launch a Referendum and Quorum

N. 7 The referendum can be launched by 50,000 voters or eight cantons. The dual legitimation through people and cantons reflects the federalist structure of Switzerland. The signature quorum of 50,000 corresponds to about 1% of voters — a low threshold by international comparison.

N. 8 The 100-day deadline begins with official publication in the Federal Gazette. According to BGE 139 II 303, no binding rule exists regarding a minimum interval between parliamentary resolution and publication. The Federal Chancellery may allow the deadline to begin as early as four days after resolution for substantive reasons.

#Acts Subject to Referendum

N. 9 Federal acts (lit. a): All formal federal acts are automatically subject to the optional referendum. Some commentators emphasise that the principle of unity of subject matter plays only a subordinate role here — unlike with popular initiatives.

N. 10 Federal acts declared urgent (lit. b): Only urgent federal acts with a validity period of more than one year are subject to referendum. The declaration of urgency according to Art. 165 Fed. Const. initially exempts the act from referendum, but subsequently subjects it to popular vote if it has a longer duration.

N. 11 Federal resolutions (lit. c): Only those federal resolutions are subject to referendum for which the constitution or law expressly provides. Examples are financial measures according to Art. 48a para. 2 Fed. Const. or certain foreign policy resolutions.

N. 12 International treaties (lit. d): The most complex category with three alternative criteria. Monnier (ZSR 1986 II 107, 230) and Sägesser (Jusletter 2009) analyse the development of this provision as a gradual democratisation of foreign policy.

#4. Legal Consequences

N. 13 If a referendum is successful, the act is submitted to the people for vote. If rejected, the act does not enter into force or subsequently lapses (for urgent acts). The suspensive effect of the referendum is absolute — the act cannot enter into force during the referendum period and until any popular vote.

N. 14 The success of the referendum is a purely procedural act without material decision. The Federal Chancellery only examines the formal requirements (number of signatures, voting rights certificates, deadline), not the material referendability of the act.

#5. Controversies

#Termination of International Treaties

N. 15 A central point of controversy concerns the referendum obligation for termination of international treaties. Some commentators argue that weighty reasons speak for analogous application of the referendum to terminations, since democratic legitimacy matters just as much when a treaty is terminated as when it is concluded.

N. 16 The opposing view, represented by parts of the older doctrine, sees Art. 141 Fed. Const. as an exhaustive enumeration. Diggelmann (ZBl 2014, 291, 315) warns against extensive interpretation without clear constitutional basis.

#Standard Agreements

N. 17 The parliamentary practice of exempting certain international treaties as «standard agreements» from referendum is highly controversial. Some commentators criticise this practice as questionable. Diggelmann (ZBl 2014, 291, 320) even qualifies it as potentially unconstitutional.

N. 18 Supporters of the standard agreement practice argue with practicability and the minor political significance of repetitive treaties. Mannhart Gomes (Diss. Bern 2007, 145) sees this as a permissible concretisation of the indeterminate legal concepts in Art. 141 para. 1 lit. d Fed. Const.

#6. Practical Notes

N. 19 Referendum committees must strictly observe the 100-day deadline. According to BGE 139 II 303, the responsibility for timely voting rights certificates lies entirely with the committees. Delays at municipal offices must be factored in.

N. 20 For international treaties, early clarification of referendability is recommended. The criteria «important law-making provisions» and «requirement of federal acts for implementation» are often open to interpretation. In case of doubt, the Federal Assembly should subject the treaty to the optional referendum.

N. 21 The formulation of referendum requests requires no special form. What is decisive is the unambiguous identification of the contested act. For omnibus acts, reference to the entire act suffices; differentiation according to individual provisions is neither required nor possible.

The case law on Art. 141 FC primarily deals with procedural questions regarding the conduct of the optional referendum, particularly concerning the 100-day deadline, voting rights certification, and qualification criteria for international treaties.

#Referendum Deadline and Time Limits

BGE 139 II 303 (5 June 2013) — Commencement and calculation of the referendum deadline

The referendum deadline of 100 days begins with the publication of the enactment in the Federal Gazette. The Federal Supreme Court confirmed that there is no binding rule whereby referendum deadlines always begin only eleven days after the decision of the federal councils. The Federal Chancellery may, in urgent cases, allow the referendum deadline to begin four days after the decision has been made, if factual reasons justify this.

«The referendum deadline of 100 days begins with the publication of the enactment in the Federal Gazette. There is no binding rule that referendum deadlines always begin only eleven days after the decision of the federal councils. Official publication at the earliest possible time, four days after the decision has been made, is not objectionable given the urgency of the proposal.»

#Voting Rights Certification and Submission Procedures

BGE 139 II 303 (5 June 2013) — Responsibility of referendum committees

The referendum must arrive at the Federal Chancellery with the required number of signatures together with voting rights certification within the referendum deadline. The responsibility for timely obtaining voting rights certifications lies with the initiators of the referendum, who must factor in possible procedural disruptions in the certification process.

«The referendum must arrive at the Federal Chancellery with the required number of signatures together with voting rights certification within the referendum deadline. The responsibility for timely obtaining voting rights certifications lies with the initiators of the referendum. In their planning, they must consider that procedural disruptions in the certification process can occur.»

BGE 131 II 449 (31 May 2005) — Subsequent certification of signatures

The Federal Chancellery is not authorised to subsequently correct or supplement defective voting rights certifications. Voting rights certifications must be obtained by the initiators from the competent office within the collection period. Subsequent certification or improvement by the Federal Chancellery is inadmissible.

«Voting rights certifications must be obtained by the initiators from the competent office within the collection period. Subsequent certification or improvement of defective certifications by the Federal Chancellery is not possible.»

#Design of Referendum Rights

BGE 140 I 58 (13 December 2013) — Proportionate design of referendum rights

If a canton provides for the possibility of launching an optional referendum against municipal decisions, it may not require prohibitive prerequisites. These must be coherent and open up realistic opportunities to exercise the granted referendum rights. The Federal Supreme Court examined the Aargau regulation with ten percent of eligible voters in 30 days and found it to be constitutional.

«If a canton provides for the possibility of launching an optional referendum against municipal decisions, it may not require prohibitive prerequisites. Rather, these must be coherent and open up realistic opportunities to exercise the granted referendum rights.»

#Emergency Legislation

BGE 147 I 420 (11 March 2021) — Restriction of referendum rights through declaration of urgency

The declaration of urgency restricts the referendum rights of eligible voters; the urgency clause must therefore be interpreted restrictively. Compelling extraordinary circumstances must exist. The Federal Supreme Court recognised the COVID-19 pandemic as grounds for declaring urgency of a cantonal law on ballot voting in assembly municipalities.

«The declaration of urgency restricts the referendum rights of eligible voters; the urgency clause must therefore be interpreted restrictively. Given the volatile legal and health situation in autumn 2020, there was a considerable interest in the immediate entry into force of the law, particularly to ensure the decision-making and functional capacity of Zurich municipalities.»

#Government Intervention in Voting Campaigns

BGE 143 I 78 (14 December 2016) — Permissible intervention by cantons

A canton may intervene in a voting campaign at the federal level if it has a direct and particular interest in the outcome of the vote. However, the intervention must be objective and factual. The Federal Supreme Court confirmed the fundamental permissibility of official interventions under certain conditions.

«A canton may intervene in a voting campaign at the federal level if it has a direct and particular interest in the outcome of the vote. If the intervention is permissible in principle, the canton is obliged to maintain objectivity.»

BGE 145 I 1 (1 January 2018) — Interventions by the Federal Chancellery

The Federal Chancellery is obliged to maintain objectivity during votes. The Federal Supreme Court clarified the limits of permissible official interventions in the run-up to federal popular votes and dealt with voting videos by the Federal Chancellery as well as interventions by cantonal authorities and their enterprises.

«With respect to the Federal Chancellery, one can speak of a voting video when it involves an audiovisual production that is primarily intended to inform about a voting proposal.»

#Recount in Close Results

BGE 141 II 297 (1 January 2015) — No right to a recount

A very close result in a federal vote does not by itself confer a right to a recount. There is no obligation flowing directly from Art. 34 para. 2 FC to recount very close election or voting results. The Federal Supreme Court denied a general right to a recount in close results.

«A very close result in a federal vote does not by itself confer a right to a recount. There is no obligation flowing directly from Art. 34 para. 2 FC to recount very close election or voting results.»