Art. 157 FC — Joint Session

#Doctrine

#1. Legislative History

N. 1 Art. 157 FC traces back to Art. 92 of the Federal Constitution of 1874 (oFC), which already provided for a joint session of both Chambers as the «United Federal Assembly». The provision was carried over largely unchanged during the total revision of the Federal Constitution in 1999 and placed in a new systematic position. In its Message of 20 November 1996, the Federal Council stated that Art. 157 FC codifies well-established customary constitutional law and does not aim to introduce any substantive change to the existing legal position (BBl 1997 I 357 f.).

N. 2 The Message on the new Federal Constitution emphasised that the United Federal Assembly is not an independent organ alongside the National Council and the Council of States, but rather a special form of session of the Federal Assembly for tasks exhaustively enumerated in the Constitution. The constituent legislator expressly wished to retain the enumeration principle: the competences of the United Federal Assembly form a numerus clausus (BBl 1997 I 357 f.).

N. 3 Para. 2, which governs the Assembly's convening on «special occasions» and for the receipt of declarations by the Federal Council, introduced no independent normative innovation compared to the oFC, but rather enshrined existing practice in constitutional law (BBl 1997 I 358). The provision remained uncontested during the parliamentary deliberations; no motions for substantive amendments were tabled (AB 1998 N 2459; AB 1998 S 1011).

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#2. Systematic Classification

N. 4 Art. 157 FC belongs to the 4th Section of the 5th Chapter («The Federal Assembly», Arts. 143–173 FC) and governs a special procedural form of the Federal Assembly. The provision is an organisational norm within the meaning of the FC's systematic structure: it does not confer subjective rights and is not justiciable. → Art. 189 para. 4 FC expressly excludes judicial review of acts of the Federal Assembly that do not have the character of legal rules; exceptions are determined by statute.

N. 5 The United Federal Assembly is not a third organ alongside the National Council and the Council of States (↔ Art. 148 FC), but rather a joint sitting of both Chambers. This distinguishes the Swiss model from systems with a genuine Congress or a fused chamber. Ehrenzeller emphasises that the United Federal Assembly is «a special form of plenary session of both Chambers», not an independent constitutional organ (Ehrenzeller, in: St. Galler Kommentar BV, 4th ed. 2023, Art. 157 N. 3).

N. 6 The relationship with the individual Chambers is governed by the principle of speciality: insofar as Art. 157 FC establishes the competence of the United Federal Assembly, no separate action by the individual Chambers is possible. → Art. 148 para. 1 FC (Federal Assembly as the supreme federal authority). The Parliament Act (ParlA, SR 171.10) specifies the modalities of the joint session in Arts. 31 ff. ParlA.

N. 7 Para. 2 is essentially declaratory in character: the convening of the Assembly on special occasions and for the receipt of Federal Council declarations does not confer any decision-making competence and thereby differs categorically from the tasks under para. 1 (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1540).

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#3. Elements of the Provision / Normative Content

3.1 Formal Requirements for the Joint Session

N. 8 The United Federal Assembly meets under the chairmanship of the President of the National Council (Art. 157 para. 1 FC). The Presidency of the National Council thus also presides over joint sittings; the President of the Council of States has no presiding function in this context. Art. 32 para. 1 ParlA provides that quorum is reached when an absolute majority of the members of both Chambers is present (quorum: 122 out of 246 members).

N. 9 Decisions are taken by an absolute majority of those voting, unless the FC provides otherwise (Art. 159 para. 1 FC in conjunction with Art. 32 ParlA). Every member of both Chambers has one vote; membership in the National Council or the Council of States is irrelevant for the purposes of voting.

3.2 Elections (Art. 157 para. 1 lit. a FC)

N. 10 The most important competence of the United Federal Assembly is the election of the supreme federal authorities. The general electoral competence is enshrined in → Art. 168 para. 1 FC, which designates the United Federal Assembly as the electoral body for members of the Federal Council (→ Art. 175 para. 2 FC), the Federal Chancellor (→ Art. 179 FC), members of the Federal Supreme Court, and — as provided by federal legislation — further members of authorities. Elections are conducted by majority vote (Art. 130 para. 1 ParlA).

N. 11 The Federal Assembly elects members of the Federal Council individually (Art. 130 para. 3 ParlA). It is legally free in its electoral decision; it is not bound by proposals from the Federal Council or other organs. The constitutional obligation to ensure adequate representation of the linguistic regions and regions of the country (Art. 175 para. 4 FC) is designed as a political guideline, not as an enforceable legal duty (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 2408).

3.3 Jurisdictional Conflicts (Art. 157 para. 1 lit. b FC)

N. 12 The United Federal Assembly decides on jurisdictional conflicts between the supreme federal authorities. This competence has not been invoked in practice to date and has therefore acquired little independent significance. It refers to genuine conflicts of competence (both positive and negative) between the Federal Council, the Federal Supreme Court, and the Federal Assembly, but not to mere differences of opinion on questions of law (Ehrenzeller, in: St. Galler Kommentar BV, 4th ed. 2023, Art. 157 N. 12).

N. 13 Art. 157 para. 1 lit. b FC functions as an institutional emergency brake in the event of a breakdown in the allocation of competences. Since no constitutional court with jurisdiction over inter-organ disputes exists (→ Art. 189 FC), this competence of the United Federal Assembly remains the sole formal conflict-resolution instrument at the federal level. Tschannen notes that the fact that this competence has never been invoked attests to the functioning of informal coordination among the federal organs (Tschannen, Staatsrecht der Schweizerischen Eidgenossenschaft, 5th ed. 2021, § 40 N. 15).

3.4 Pardons (Art. 157 para. 1 lit. c FC)

N. 14 The United Federal Assembly grants pardons in respect of convictions falling under federal criminal jurisdiction (Art. 157 para. 1 lit. c FC in conjunction with Art. 381 para. 1 SCC). A pardon comprises the full or partial remission of a legally enforceable sentence; it is an act of executive clemency and not a legal remedy. The petition is submitted to the Pardons Committee of the United Federal Assembly, which is established as a standing joint parliamentary committee of both Chambers (Art. 43 ParlA in conjunction with Art. 381 para. 2 SCC). This committee submits motions to the United Federal Assembly for approval or rejection.

N. 15 The inter-cantonal delimitation of jurisdiction in pardon matters is determined by the place of jurisdiction: for sentences imposed by cantonal authorities, the competent cantonal pardoning authority — not the United Federal Assembly — has jurisdiction (BGE 101 Ia 281 E. 3a, 24 September 1975). The United Federal Assembly has exclusive jurisdiction over sentences imposed by federal authorities — in particular the Federal Criminal Court, formerly the Federal Supreme Court sitting as a criminal court (Art. 381 para. 1 SCC). Since the establishment of the Federal Criminal Court in 2004 and the associated transfer of federal criminal jurisdiction to a permanent court of first instance, the pardoning competence of the United Federal Assembly has largely fallen into abeyance; corresponding petitions have practically not been submitted since then (cf. Official Bulletin of the United Federal Assembly, session record 1991, sitting of 12 June 1991, as the last pertinent precedent).

3.5 Special Occasions and Declarations by the Federal Council (Para. 2)

N. 16 Para. 2 authorises the United Federal Assembly to convene on special occasions (e.g. state visits, anniversaries of the Confederation) and for the receipt of declarations by the Federal Council (e.g. on the state of the nation or in crisis situations). Such gatherings are ceremonial or informational in character; they confer no decision-making competence. Resolutions cannot be passed on such occasions (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1541).

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#4. Legal Consequences

N. 17 Decisions of the United Federal Assembly on elections, jurisdictional conflicts, and pardons are final and not justiciable. Art. 189 para. 4 FC provides that acts of the Federal Assembly and the Federal Council may be challenged before the Federal Supreme Court only if a federal statute so provides; no such statutory basis exists for elections, pardons, or jurisdictional decisions. The Federal Supreme Court has consistently confirmed the principle of the non-appealability of acts of the Federal Assembly and the Federal Council on the basis of Art. 189 para. 4 FC (BGE 145 I 1 E. 5.1.1; BGE 129 II 193 E. 4.2). This «presumption of non-appealability» corresponds to the conception underlying the principle of separation of powers, whereby acts of government and parliamentary electoral decisions remain excluded as political acts from judicial review (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1956).

N. 18 Elections by the United Federal Assembly are constitutive in effect: the elected member receives their official position by virtue of the electoral decision. The term of office generally begins upon the member taking up their duties, as regulated by federal statute (→ Art. 175 para. 3 FC for the Federal Council). Defective elections cannot be challenged with retroactive effect; any defect in the electoral procedure may at most give rise to a political, but not a judicial, sanction.

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#5. Contested Issues

N. 19 Party proportionality in Federal Council elections: Whether the United Federal Assembly is legally obliged to give effect to a particular proportional representation of the major parties on the Federal Council is disputed. Ehrenzeller takes the view that the «magic formula» is a purely political custom with no legally binding effect; the freedom of election precludes a judicially enforceable proportionality obligation (Ehrenzeller, in: St. Galler Kommentar BV, 4th ed. 2023, Art. 157 N. 7). Rhinow/Schefer/Uebersax, by contrast, hold that the logic of democratic legitimacy may recommend «adequate» consideration of the relative strengths of the parties, but that this cannot be compelled by Art. 175 para. 4 FC (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 2408). The popular initiative «Justizinitiative», rejected by the people on 28 November 2021 with 68.3% of votes cast against it, addressed in a related context the political influence on judicial elections and illustrates the continued sensitivity of the issue of party influence on electoral decisions of the United Federal Assembly (Message on the popular initiative «Justizinitiative», BBl 2021 104).

N. 20 Pardoning competence and the right to revision: A further contested issue concerns the relationship between the pardon and the extraordinary legal remedy of revision. Häfelin/Haller/Keller/Thurnherr regard the pardon as subsidiary to revision: a petition for clemency is inadmissible as long as an ordinary or extraordinary legal remedy is available (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1543). The parliamentary practice of the Pardons Committee was less restrictive: it did not reject petitions as a matter of principle on account of pending revision proceedings, but rather assessed them on a case-by-case basis (Official Bulletin of the United Federal Assembly, session record 1991, sitting of 12 June 1991).

N. 21 Declaratory vs. constitutive character of Para. 2: Whereas the prevailing doctrine — notably Ehrenzeller (St. Galler Kommentar BV, 4th ed. 2023, Art. 157 N. 16) and Häfelin/Haller/Keller/Thurnherr (op. cit., N. 1541) — qualifies Para. 2 as purely declaratory, Tschannen points out that the constitutional entrenchment of Para. 2 at least prevents the convening of the Assembly on special occasions from being restricted by ordinary parliamentary law (Tschannen, Staatsrecht der Schweizerischen Eidgenossenschaft, 5th ed. 2021, § 40 N. 17). The practical consequences of this disagreement are minor, since the question of convening under Para. 2 is not justiciable (→ Art. 189 para. 4 FC).

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#6. Practical Notes

N. 22 In practice, the United Federal Assembly convenes each year — and as needed for by-elections — for general elections. Pardon petitions are examined in advance by the Pardons Committee, which is established as a standing joint committee of both Chambers pursuant to Art. 43 ParlA in conjunction with Art. 381 para. 2 SCC. The last well-documented treatment of federal pardon petitions by the United Federal Assembly dates from the early 1990s; since then, the transfer of federal criminal jurisdiction to the Federal Criminal Court established in 2004 has rendered this competence practically obsolete (Official Bulletin of the United Federal Assembly, session record 1991, sitting of 12 June 1991).

N. 23 Anyone seeking a federal pardon must submit the petition in writing to the Pardons Committee and set out why continued enforcement of the sentence would be disproportionate. Formal requirements follow from Art. 381 SCC and the rules of procedure of the Pardons Committee. Judicial challenge to a decision of the United Federal Assembly is excluded: Art. 189 para. 4 FC removes acts of the Federal Assembly that do not have the character of legal rules — and thus in particular pardon decisions — from the jurisdiction of the Federal Supreme Court; a public-law appeal is therefore unavailable (cf. BGE 129 II 193 E. 4.2; Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1956).

N. 24 As regards the practical significance of Art. 157 para. 1 lit. b FC (jurisdictional conflicts): since Swiss federal constitutional law does not provide for inter-organ proceedings before the Federal Supreme Court (→ Art. 189 para. 4 FC), the United Federal Assembly remains the sole formally competent forum for genuine conflicts of competence between the Federal Council and the Federal Supreme Court. This competence has never been invoked in constitutional practice to date, which points to the functioning of informal coordination among the federal organs (Ehrenzeller, in: St. Galler Kommentar BV, 4th ed. 2023, Art. 157 N. 12; Tschannen, Staatsrecht der Schweizerischen Eidgenossenschaft, 5th ed. 2021, § 40 N. 15).

#Case Law

Case law on Art. 157 FC is extremely sparse. This is explained by the special character of the provision as an organisational rule that primarily governs parliamentary procedures and only rarely triggers legally reviewable disputes. The few available decisions mainly concern the pardoning competence of the Federal Assembly.

#Pardoning Competence

BGE 101 IA 281 (24 September 1975) Intercantonal delimitation of competence in pardoning The Federal Supreme Court clarified that in pardoning, territorial competence lies with the canton whose judges pronounced the relevant sentence.

«The 'pardoning authority of the canton' within the meaning of Art. 394 lit. b StGB is to be understood as the authority of the canton whose judges imposed the sentence to be remitted by pardon through a legally binding judgment.»

#Parliamentary Practice in Pardoning

The procedure for pardon applications is concretised through the parliamentary practice of the Federal Assembly. The Pardons Committee examines the submitted applications and submits corresponding motions to the Federal Assembly. In the session of 12 June 1991 (Bulletin No. 91.030), the Federal Assembly dealt with three pardon applications, of which two were approved and one rejected.

Practice shows that pardons are mainly granted in cases of financial hardship and health problems, whereby complete discharge of debt is not required if further enforcement would constitute a disproportionate hardship.

#Elections by the Federal Assembly

Parliamentary practice regarding elections by the Federal Assembly is extensive, but rarely subject to judicial review. Elections take place in non-public session and are subject to the political discretion of Parliament.

#Conflicts of Competence

Decisions of the Federal Assembly on conflicts of competence between supreme federal authorities (Art. 157 para. 1 lit. b FC) are not documented in case law. This rare competence is only exercised in genuine conflicts of competence between the Federal Council and the Federal Supreme Court, which have not practically occurred to date.

#Special Occasions

Assembly for «special occasions» according to Art. 157 para. 2 FC occurs at parliamentary discretion and is not justiciable. This includes state visits and significant political events that do not give rise to judicial review.