The Confederation shall be liable for damage or loss unlawfully caused by its organs in the exercise of official activities.
#Overview
Art. 146 BV obligates the Confederation to be liable for damage caused by its organs. According to Jellinek, this state liability constitutes the «ultima ratio of the rule of law» (BSK BV-Schaub, N. 2). It applies to all federal authorities, from the administration to the courts.
The Confederation must meet four requirements: There must be damage caused by a federal organ in official activity, unlawfully and with adequate causal connection. Unlawful is any violation of the legal order, regardless of fault by the officials. The liability is pure causal liability without requirement of fault (Art. 3 VG; BSK BV-Schaub, N. 31).
Example: A police officer unlawfully damages a vehicle during an operation. The Confederation is liable for the repair damage, even if the official had no intent. A second example: The Federal Office of Public Health issues incorrect vaccination advice that leads to health damage.
The legal details are regulated by the State Liability Act (VG). Injured parties have a claim period of one year from knowledge of the damage, but at the latest ten years after the damaging act (Art. 20 VG). These periods are short and are observed ex officio.
The liability covers the full damage under tort law. In case of serious fault by the official, the Confederation may seek recourse (Art. 7 VG). Special regulations exist for particular areas such as military or nuclear energy.
Claims against the Confederation are decided by the Federal Supreme Court as sole instance (Art. 120 BGG). The practical significance of state liability is great, as citizens are often inevitably in contact with state organs and depend on effective legal protection.
Art. 146 BV
#Doctrine
#1. Legislative History
N. 1 State liability was first enshrined in the Federal Constitution of 1848. Art. 110 FC 1848 provided: «The law determines the responsibility of the members of the Federal Council and other officials employed or appointed by it.» This provision was adopted in Art. 117 FC 1874 and formed the basis for the enactment of the Liability Act of 9 December 1850. The current formulation in Art. 146 FC dates back to the total revision of 1999 and codifies the constitutional principle of state liability (FG 1997 I 1, 484).
N. 2 With Art. 146 FC, the constitutional legislator sought to anchor the principle of state liability at the constitutional level and thereby underscore its fundamental rule-of-law significance. The Federal Council Message on the new Federal Constitution noted: «State liability is an essential element of the rule of law. The state must be accountable for the unlawful conduct of its organs» (FG 1997 I 1, 484). This constitutional anchoring was intended to ensure that federal liability is not at the disposal of ordinary legislation.
#2. Systematic Classification
N. 3 Art. 146 FC is located in Title 5 on the Federal Authorities, Chapter 3 on the Federal Supreme Court and other judicial authorities. This systematic position is historically conditioned and not substantively justified, as state liability affects all federal organs, not just the courts. The norm is closely related to → Art. 5 FC (rule of law principle) and → Art. 29a FC (guarantee of legal remedies). It concretises the rule-of-law principle that state action must not only be lawful, but the state must also be accountable for unlawful conduct.
N. 4 The constitutional provision is implemented by the State Liability Act (SLA). Art. 3 para. 1 SLA repeats the constitutional principle and specifies the liability requirements. Special regulations exist for specific areas, such as Art. 19 FINMASA for FINMA, Art. 135 ff. MA for the military sector, or Art. 78 GISA for social insurance institutions. These special acts take precedence over general liability law, but must observe the constitutional minimum standard of Art. 146 FC.
#3. Elements of the Offence / Normative Content
N. 5 «The Confederation» as the liable entity comprises the Swiss Confederation as a legal person under public law. According to Federal Supreme Court case law, the Confederation is liable not only for the organs of the central federal administration, but also for decentralised administrative units with their own legal personality, provided they perform sovereign federal tasks (BGE 148 II 218 E. 2.1). When public tasks are transferred to private parties, according to Schaub (BSK BV, Art. 146 N. 14), the Confederation remains directly liable if the legal basis for task transfer is lacking. The Federal Supreme Court confirmed this position in BGE 148 II 218.
N. 6 «Its organs» encompasses all persons acting for the Confederation. The concept of organ is to be understood functionally and comprises, according to Art. 1 SLA, magistrates, officials, employees and all other persons directly entrusted with public law tasks of the Confederation. The decisive factor is not the formal position, but the functional attribution to the federal administration. Private auxiliary persons who merely perform supporting activities do not fall under the concept of organ (Gross, Swiss State Liability Law, 2nd ed. 2001, pp. 45 ff.).
N. 7 «In the performance of official activities» requires a functional connection between the damaging act and the official task. According to Schaub (BSK BV, Art. 146 N. 21), the Federal Supreme Court denies the functional connection if the act was performed «merely on the occasion of the performance». A significant part of the doctrine (Gross, op. cit., p. 67; Jaag, ZSR 2003 II 1, 45) argues instead for affirming the functional connection when the organ only came into a position to perform the damaging act due to its official position.
N. 8 «Unlawfully» means any violation of the legal order, whether by active conduct or wrongful omission. The objective unlawfulness theory prevails: the decisive factor is the violation of a protected legal interest or a rule of conduct, not fault (BGE 118 IB 163 E. 2a). For pecuniary damage, unlawfulness requires the violation of a protective norm. For personal injury and property damage, unlawfulness already lies in the violation of the legal interest itself (BGE 123 II 577 E. 4e).
N. 9 «Cause» requires an adequate causal connection between the unlawful conduct and the damage. According to established case law, natural causation is not sufficient; the damaging event must be suited, according to the ordinary course of things and general life experience, to bring about a consequence of the type that occurred (Schaub, BSK BV, Art. 146 N. 30; BGE 133 III 462 E. 4.4.2).
#4. Legal Consequences
N. 10 State liability under Art. 146 FC is structured as strict liability. Fault on the part of the acting organs is not required (Art. 3 para. 1 SLA; Schaub, BSK BV, Art. 146 N. 31). This no-fault liability takes account of the special position of power of the state and the circumstance that injured parties often have no choice whether they wish to come into contact with state organs.
N. 11 The Confederation is primarily and directly liable. Recourse against culpable officials is only possible in cases of intent or gross negligence (Art. 7 SLA). Liability encompasses the full damage according to the principles of tort law. In cases of personal injury, compensation for moral damage may additionally be owed if the official is at fault (Art. 6 SLA).
N. 12 Claims become time-barred according to Art. 20 SLA within one year from knowledge of the damage, but at the latest ten years after the damaging act. The Federal Supreme Court clarified in BGE 136 II 187 that the absolute limitation period can expire even before damage occurs, which leads to hardship particularly in cases of latent damage (e.g. asbestos). The limitation period must be observed ex officio (Jaag, SBVR Vol. I/3, 3rd ed. 2017, N. 122).
#5. Controversies
N. 13 Constitutionally direct state liability claims: Schaub (BSK BV, Art. 146 N. 3-4) takes the position that Art. 29a in conjunction with Art. 146 FC supports a constitutionally direct claim for damages in cases of fundamental rights violations, if effective legal protection cannot be obtained through restitutive administrative legal protection. He argues that Art. 146 FC, as an independent constitutional right, fulfils the requirements for the recognition of subjective claims. The Federal Supreme Court (Schaub, BSK BV, Art. 146 N. 5) rejects this view and does not derive direct state liability claims from the constitution. It leaves it to the cantons to provide for such claims at all. The majority of the doctrine follows the Federal Supreme Court's practice (Rütsche, Jusletter of 4.4.2011; Feller, The Principle of the Uniqueness of Legal Protection in State Liability Law, 2007, pp. 89 ff.).
N. 14 Unlawfulness in cases of arbitrariness: A broad part of the doctrine (Schaub, BSK BV, Art. 146 N. 25; Landolt, AJP 2005, 379, 385; Gross, op. cit., p. 124) demands that violation of the prohibition of arbitrariness under Art. 9 FC should suffice as a sufficient prerequisite for liability-establishing unlawfulness. The Federal Supreme Court, by contrast, sometimes denies a «special error» even in cases of arbitrary application of law and requires a qualified violation of law. This restrictive case law is criticised because it undermines effective legal protection in cases of fundamental rights violations.
#6. Practice Guidelines
N. 15 Injured parties must first submit their claim for damages to the damaging authority. This issues a contestable ruling (Art. 10 SLA). The legal remedy follows the general rules: rulings by federal authorities can be appealed to the Federal Administrative Court. Actions against the Confederation must be filed with the Federal Supreme Court as the sole instance (Art. 120 SCA; Judgment 2E_4/2019 of 28 October 2021).
N. 16 The one-year limitation period from knowledge of the damage is short. Injured parties should precautiously file a claim for damages even if the damage cannot yet be fully quantified. For latent damage, particular attention should be paid to the absolute ten-year limitation period, which runs independently of when damage occurs.
N. 17 Various areas have special statutory liability regimes with partly more favourable regulations: The Military Act provides for longer prescription periods (Art. 137 MA). The Nuclear Liability Act establishes strict liability with higher liability amounts (Art. 13 ff. NLA). The Epidemics Act contains a special liability regulation for vaccination damage (Art. 64 ff. EpA). In the financial market sector, FINMA is liable under Art. 19 FINMASA only for qualified breach of official duty. These special regulations must be examined as a priority.
Art. 146 BV
#Case Law
#Liable Subject and Delegation of Tasks
BGE 148 II 218 (17 December 2021)
Entrusting private parties with public law tasks of the Confederation (Art. 19 RLA); statutory basis under Art. 178 para. 3 Cst.
Fundamental judgment on task delegation and direct federal liability in cases of insufficient legal basis.
«The Confederation is liable for damage unlawfully caused by its bodies in the performance of their official activities (Art. 146 Cst.). The Responsibility Act gives concrete form to this constitutional principle (cf. Art. 3 para. 1 RLA).»
BGE 132 II 449 (20 November 2006)
Federal liability for BSE measures; authorization requirement for fertilizers containing animal meal.
Application of federal liability in the area of official authorization procedures and information duties.
«Art. 3 para. 1 RLA does not establish liability of the Confederation for damage suffered by the parties through the necessary costs of an administrative proceeding.»
#Unlawfulness and Fault
BGE 118 IB 163 (22 May 1992)
Fundamental decision on the concept of unlawfulness in case of defective legal acts.
Authoritative case law on the interpretation of the concept of unlawfulness in liability law.
«Unlawfulness presupposes the violation of a legal interest. Assets as such are not a legal interest; their damage alone is therefore not unlawful. It is only unlawful if a norm of written or unwritten law is violated.»
BGE 123 II 577 (12 December 1997)
Liability for collision between military and civilian aircraft; concept of unlawfulness in the military sphere.
The liability of the Confederation is governed by the Military Organisation (today: Military Act), not by the Aviation Act.
«In the case of personal injury, unlawfulness results, even without specific provisions being violated, from the fact that physical integrity is impaired without justification.»
#Jurisdiction and Procedure
Judgment 2E_4/2019 (28 October 2021)
Action against the Swiss Confederation under Art. 120 para. 1 lit. c FSCA; procedural questions.
Jurisdiction of the Federal Supreme Court as sole instance for federal liability actions and procedural course.
«Under Art. 120 para. 1 lit. c FSCA, the Federal Supreme Court has jurisdiction as sole instance to adjudicate claims for damages and satisfaction arising from the official activity of the persons exhaustively listed in Art. 1 para. 1 lit. a-c bis of the Responsibility Act.»
Judgment 2E_1/2018 (25 October 2019)
Federal liability in the tax area; procedure under Art. 120 FSCA.
State liability claims against the Confederation for erroneous tax assessment and their procedural treatment.
«The procedure for actions within the meaning of Art. 120 FSCA is governed, according to Art. 120 para. 3 FSCA, by the Federal Act on Federal Civil Procedure (FAFCP).»
#Special Areas
Judgment A-2699/2018 (28 March 2019)
Federal liability in the area of pension funds; information duties of PUBLICA.
Application of federal liability for errors in advice by bodies of the Confederation's pension fund.
«The Confederation is liable for damage unlawfully caused by its bodies in the performance of their official activities (Art. 146 Cst.).»
BGE 116 II 480 (31 July 1990)
Nuclear energy liability (Chernobyl case); liability of the Confederation under Art. 16 NLA.
Special regulation of federal liability in the field of nuclear energy and relationship to Art. 146 Cst.
«For the liability of the Confederation under Art. 16 para. 1 lit. d NLA, the same requirements apply as for nuclear installations in Switzerland.»
#Military Sphere
BGE 127 II 289 (24 July 2001)
Relationship of federal liability under the Military Act to military insurance.
Exclusion of liability under the Military Act when military insurance provides benefits.
«According to Art. 135 para. 3 MA, the liability of the Confederation in cases falling under other liability provisions is governed by those provisions.»
BGE 122 V 28 (19 June 1996)
Federal liability for consequences of medical precautions in military service; scope of liability.
Special regulation in the area of the Military Insurance Act and its relationship to general federal liability.
«Regarding the scope of federal liability for the consequences of medical precautions, there are special statutory regulations in the Military Insurance Act.»