#1. Legislative History

N. 1 Art. 147 BV enshrines the consultation procedure at the constitutional level. The provision dates back to the total revision of the Federal Constitution of 1999 and codifies a long tradition of consultation in Swiss legislation (BBl 1997 I 1, 376 f.). The constitutional legislator wanted to expressly secure the proven practice of consultation, which had developed since the 19th century, under constitutional law (BBl 2004 533, 536).

N. 2 The current formulation largely corresponds to the Federal Council's proposal. In the parliamentary debates, it was discussed whether consultation should be designed as a popular right. This was rejected, thus maintaining its character as an instrument of participation in the pre-parliamentary procedure.

#2. Systematic Classification

N. 3 Art. 147 BV is located in Title 5 on federal authorities, in Chapter 3 on the Federal Assembly and the Federal Administration. This placement underscores that the consultation procedure is part of the legislative process at the federal level. The provision has close connections to political rights (→ Art. 33 BV) and to cooperative federalism (→ Art. 45 BV).

N. 4 Rhinow attested to consultation's proximity to political rights and highlighted the parallels to the right of petition. Biaggini described the consultation procedure as a kind of formalized exercise of the right of petition. However, consultation is not a popular right in the narrower sense, but rather a consultation instrument in the legislative process.

#3. Elements of the Offence / Normative Content

N. 5 Circle of addressees: Art. 147 BV names three categories of consultation addressees: the cantons, the political parties, and interested circles. The cantons are mandatory addressees in all consultations. Their participation is an expression of cooperative federalism (↔ Art. 45 BV). Political parties are consulted as bearers of political will formation. The «interested circles» include associations, organizations and other actors affected by the proposal.

N. 6 Objects of consultation: The Constitution names three categories: important enactments, other projects of great significance, and important international treaties. The Consultation Act (VlG) specifies these concepts in Art. 3. It is disputed whether consultation must be conducted for every legislative amendment. Sägesser concluded that consultation need not be conducted for every legislative amendment. Schiess Rütimann takes the view that Art. 3 para. 1 lit. b VlG violates Art. 147 BV.

N. 7 Form of invitation: The Constitution speaks of an «invitation to comment». This underscores the consultative character of the procedure. Participation is voluntary, the opinions received are not binding on the authorities (BBl 2004 533, 540).

#4. Legal Consequences

N. 8 Art. 147 BV does not create a subjective right to conduct a consultation procedure. Case law has repeatedly held that there is no constitutional right to a hearing in the legislative procedure (BGE 121 I 230 E. 2b). The violation of consultation provisions only leads to the repeal of the enacted legal act in exceptional cases (BGE 134 I 269 E. 4.3).

N. 9 The authorities are obliged to take note of the consultation results and to address them. They must explain in the dispatch or explanatory report how they have assessed the consultation results (Art. 8 VlG). However, a detailed justification for not considering individual opinions is not required (Sägesser, LeGes 2007/3, 485 ff.).

#5. Points of Dispute

N. 10 Legal nature of the consultation obligation: Schiess Rütimann takes the position that Art. 4 para. 1 VlG violates the constitutional order of political rights and Art. 147 BV. This view contradicts the prevailing practice, which understands the consultation procedure as a political consultation instrument without justiciable character.

N. 11 Scope of consultation obligation for legislative amendments: A central point of dispute concerns the question of whether consultation must be conducted for all legislative amendments. Sägesser takes the view that consultation need not be conducted for every legislative amendment (Sägesser, Komm. VlG, Art. 3 N. 30 f.). In contrast, the Federal Assembly assumed when adopting the VlG that consultation must be conducted for all proposals listed in Art. 3 para. 1 VlG. Schiess Rütimann criticizes this extensive interpretation as unconstitutional.

N. 12 Effects of consultation results: It is disputed to what extent the authorities are bound by the consultation results. Sciarini emphasizes the factual significance of consultation results for the further decision-making process (Sciarini, LeGes 2011/2, 191 ff.). Kägi examines the role of arguments in the consultation procedure and their influence on decision-making (Kägi, LeGes 2011/2, 161 ff.). The prevailing doctrine assumes a political, but not legal, binding effect.

#6. Practical Guidance

N. 13 Deadlines and procedure: The consultation period is generally three months (Art. 7 para. 2 VlG). For urgent proposals, it can be shortened. The consultation documents must contain the preliminary draft of the enactment, an explanatory report, and a circle of addressees (Art. 9 VlG).

N. 14 Opinions: Opinions should be precise and reasoned. Mere approval or rejection without justification carries little weight. Concrete amendment proposals with text formulations increase the chance of consideration. The opinions are made publicly accessible (Art. 9 para. 2 VlG).

N. 15 Subsequent consultation: If a consultation procedure was omitted or conducted defectively, this can be remedied. The judgment 2C_273/2024 shows that a subsequent ordinary consultation can lead to the healing of the defect. In practice, it is advisable to conduct a consultation when in doubt about the consultation obligation in order to avoid later procedural objections.

N. 16 Evaluation and assessment: The consultation results must be systematically evaluated. The Federal Council must explain how it has assessed the various positions (Art. 8 VlG). The evaluation by Parliamentary Administrative Control shows that the quality of the evaluation is central to the legitimacy of the proposal (BBl 2012 2361 ff.). A transparent presentation of the consultation results in the dispatch facilitates parliamentary deliberation.

#Basic Significance and Limits of the Consultation Procedure

BGE 121 I 230 of 29 September 1995
No general right to a hearing in legislative procedures.
The Federal Court holds as a matter of principle that there is no constitutional right to a hearing in legislative procedures.

«According to the case law on Art. 4 BV, there is no right to a hearing in legislative procedures; even if such a right were to be recognised, the principles that apply to the issuing of rulings could not be adopted without further consideration.»

BGE 119 IA 141 of 7 May 1993
Right to a hearing in the issuing of decrees with the character of individual rulings.
The court examines whether a right to a hearing exists in the issuing of a decree with specific effects on individual persons.

«Finally, the appellant alleges a violation of the right to a hearing. The contested decree, insofar as it subjects Lake Amsoldingen and Lake Uebeschisee to a navigation ban, has the character of an individual ruling or a general ruling, which is why the appellant, as owner of these waters, should have been heard before the issuing of this prohibition.»

#Cantonal Consultation Procedures

BGE 134 I 269 of 3 October 2008
Violation of cantonal consultation provisions in the issuing of regulations.
A cantonal law provided for consultation of the social partners before issuing implementing regulations; however, the violation did not lead to the annulment of the regulation.

«Art. 53 of the law of the Canton of Geneva on unemployment: consultation of the social partners before the adoption or amendment of implementing provisions. The violation of this provision in the adoption of the implementing regulation of 23 January 2008 to the law on unemployment does not, given the concrete circumstances, constitute a sufficiently serious defect to cause the annulment of the regulation in its entirety.»

#Recent Case Law on the Consultation Procedure for Federal Ordinances

Judgment 2C_695/2023 of 18 January 2024
Consultation procedure for partial revision of the Hunting Ordinance.
The Federal Court examines an application for a declaration that no proper consultation procedure took place in the partial revision of the Hunting Ordinance for the regulation of wolves.

«By letter of 15 November 2023, A.________ requested the Federal Department of the Environment, Transport, Energy and Communications (DETEC) to issue a declaratory ruling (...) in connection with the amendment of 1 November 2023 to the Ordinance on Hunting and the Protection of Wild Mammals and Birds (...), which concerns in particular the regulation of wolves and ibex. Among other things, it applied for a declaration that no proper consultation procedure had taken place in the partial revision of the Hunting Ordinance for the regulation of wolves and ibex.»

Judgment 2C_273/2024 of 18 June 2025
Mootness after subsequent consultation procedure.
The appeal is dismissed as moot after the Federal Council conducted a proper consultation procedure.

«On 27 March 2024, the Federal Council opened the consultation on the revised Hunting Ordinance. It lasted until 5 July 2024. A.________ participated in the consultation with a submission dated 5 July 2024. On 13 December 2024, the Federal Council definitively brought the revised Hunting Act and the adapted Hunting Ordinance into force on 1 February 2025.»

#Conclusion of the Case Law

The case law on Art. 147 BV is sparse, since the consultation procedure primarily represents a political consultation and does not generally establish a justiciable right. The courts only examine compliance with consultation provisions in exceptional cases, particularly when specific legal provisions are violated or when the absence of a consultation leads to serious procedural defects.