#1. History of Enactment

N. 1 The incompatibility provisions have a long constitutional tradition. The Federal Constitution of 1848 already contained corresponding regulations in Art. 66, 70, 85 and 97. The BV 1874 continued these in Art. 77, 81, 97 and 108. During the total revision of 1999, the various provisions were systematically consolidated in Art. 144 BV. The Federal Council Message on a New Federal Constitution of 20 November 1996 (BBl 1997 I 1 ff., 377 f.) stated that the provision takes over the existing incompatibilities unchanged and aims at their systematisation.

#2. Systematic Classification

N. 2 Art. 144 BV is located in Chapter 5 "Federal Authorities" and, together with → Art. 143 BV (Eligibility) and → Art. 145 BV (Terms of Office), forms the general provisions for all federal authorities. The norm concretises the principle of separation of powers (→ Art. 5 para. 1 BV) at the personal level.

N. 3 The provision must be read in connection with further incompatibility rules: Art. 14 ParlA for members of parliament, Art. 61 GAOA for federal employees, Art. 6 ff. FCA for federal judges. These statutory provisions concretise and supplement the constitutional requirements according to Art. 144 para. 3 BV.

#3. Elements of the Offence / Normative Content

#3.1 Personal Separation of Powers (Para. 1)

N. 4 Art. 144 para. 1 BV prohibits simultaneous membership in multiple supreme federal authorities. Covered are:

• Members of the National Council
• Members of the Council of States
• Members of the Federal Council
• Judges of the Federal Supreme Court

N. 5 The term "simultaneously" must be interpreted strictly. Election to another authority already triggers the incompatibility, not just the exercise of office. In case of dual elections, the affected person must decide immediately for one office (Beeler, Personelle Gewaltentrennung, p. 85 ff.).

N. 6 The Federal Chancellor is not explicitly covered. However, the prevailing doctrine postulates an analogous application of Art. 144 para. 1 BV to this position as chief of staff of the Federal Council.

#3.2 Restriction of Other Activities (Para. 2)

N. 7 Para. 2 establishes a qualified incompatibility regime for Federal Council members and full-time federal judges. Prohibited are:

• other offices of the Confederation or a canton
• other gainful activities

N. 8 The term "other office" encompasses any permanent or temporary public function with sovereign character. Pure honorary offices without decision-making powers are not covered (Buffat, Les Incompatibilités, p. 122 ff.).

N. 9 "Gainful activity" means any activity aimed at gain, regardless of the amount of remuneration. However, the prevailing doctrine wants to allow Federal Councillors secondary occupations for small and irregular remuneration, provided these do not impair the conduct of office.

N. 10 The same basic rule applies to federal judges, whereby Art. 6 para. 2 FCA explicitly permits scientific and artistic activities as well as teaching assignments. The prevailing doctrine postulates that remunerated secondary occupations can be permitted, provided these do not impair the integrity of office conduct.

#3.3 Statutory Incompatibilities (Para. 3)

N. 11 Para. 3 authorises the legislature to provide for further incompatibilities. It has made use of this in various enactments:

• Art. 14 ParlA: incompatibility for members of parliament with federal employees and further functions
• Art. 6 ff. FCA: detailed regulation for federal judges
• Art. 20 GAOA: incompatibility for personal staff of department heads

#4. Legal Consequences

N. 12 The incompatibility occurs by force of the Constitution. In case of violation of para. 1, the later election is void. The affected person must immediately decide for one of the offices.

N. 13 In case of violations of para. 2, disciplinary measures up to removal from office are threatened. For federal judges, Art. 11a ParlA provides for a removal procedure.

N. 14 Legal acts performed in violation of the incompatibility rules remain valid in principle. The incompatibility only affects the service relationship, not the validity of official acts (Seferovic, Das Schweizerische Bundesgericht, p. 245).

#5. Points of Contention

N. 15 The permissibility of executive members taking seats on boards of directors of mixed-economy enterprises is disputed. Poledna/Schweizer (ZBl 2014, 347 ff.) see this as a violation of Art. 144 para. 2 BV, while Buob (Aktiengesellschaften, p. 187 ff.) considers this permissible with a clear statutory basis.

N. 16 The scope of the term "gainful activity" is also controversially discussed. While a restrictive interpretation covers any remunerated activity, the prevailing doctrine pleads for a teleological reduction for minor activities (Baumann et al., LeGes 2008/2, 217 ff.).

N. 17 The analogous application to the Federal Chancellor is also not undisputed. While the prevailing doctrine affirms this, critics refer to the clear wording of the Constitution and the deliberate non-mention (Gassmann, Gesetzgebungsbulletin 1/1999, XIII ff.).

#6. Practical Guidelines

N. 18 When candidating for a federal office, it must be examined in advance whether incompatibilities exist. Federal employees in particular must clarify their service relationship before a parliamentary candidacy.

N. 19 Mandates on boards of directors of public enterprises are only permissible for Federal Council members with an explicit statutory basis. Mere owner representation of the Confederation is insufficient (Stöckli, SGP 2014, 3 ff.).

N. 20 Scientific and journalistic activities of federal judges are permissible, but must be moderate and may not endanger judicial independence. The acceptance of honoraria must be handled transparently (Portmann/Uhlmann, BPG, Art. 23 N. 15).

#Absence of Supreme Court Case Law

No published case law of the Federal Supreme Court exists on Art. 144 BV. This can be explained by the nature of the provision: The incompatibility rules are self-executing constitutional norms whose observance is to be ensured primarily by the political institutions themselves. Violations would typically be dealt with through parliamentary control or administrative procedures, not through judicial decisions.

#Administrative Law Decisions on Incompatibility of Office

The sparse case law on incompatibility issues mainly concerns cantonal and municipal office holders as well as the application of corresponding cantonal provisions. These decisions are only of limited relevance for the interpretation of Art. 144 BV since they concern other legal norms.

#Parliamentary Practice

The practical application of Art. 144 BV occurs primarily through parliamentary practice in the verification of elections and through preventive measures by the authorities concerned. Corresponding procedures do not lead to published court decisions, but are documented in the business reports of the Federal Assembly and the administration.

#Comparative Legal Aspects

While Swiss case law on Art. 144 BV is absent, extensive jurisprudence on similar incompatibility rules exists in other legal systems. This can be drawn upon for the interpretation of the Swiss provision, whereby the specific institutional characteristics of the Swiss system of government must be taken into account.

#Significance for Legal Practice

The absence of judicial decisions on Art. 144 BV is not to be understood as a regulatory gap, but as a sign that the incompatibility rules are largely observed in practice. The political significance of the provision and the public impact of potential violations ensure preventive compliance with the regulations.