#1. Legislative History

N. 1 Art. 159 BV regulates the quorum and decision-making of the Federal Assembly. The provision essentially corresponds to Art. 78 and 82 of the old Federal Constitution of 1874, but was systematically reorganised in the context of the total revision and clarified on individual points (BBl 1997 I 1, 387).

N. 2 The Message on the new Federal Constitution of 20 November 1996 states that the regulation of quorum and decision-making belongs to the fundamental organisational norms of every parliament (BBl 1997 I 387). The constitutional anchoring of these principles is intended to ensure the democratic legitimacy of parliamentary decisions and prevent arbitrariness in decision-making.

N. 3 The qualified majority requirements in paragraph 3 were expanded compared to the old Federal Constitution. In particular, the declaration of urgency for federal acts (lit. a) was newly explicitly included, after this practice had already been developed under the old constitution. The threshold values for financial decisions (lit. b) were transferred from the Federal Act on the Federal Financial Household into the constitution.

#2. Systematic Classification

N. 4 Art. 159 BV is located in the 2nd section of Chapter 5 on the federal authorities and is part of the organisational norms of the Federal Assembly (Art. 148–173 BV). The provision is closely connected with:

• → Art. 160 BV (Right of initiative and right to submit motions)
• → Art. 165 BV (Emergency legislation)
• → Art. 167 BV (Financial powers)
• ↔ Art. 156 BV (Separate deliberations)
• → Art. 126 BV (Budget management, particularly para. 3 concerning extraordinary financial requirements)

N. 5 Concretisation takes place in the Parliament Act (ParlA, SR 171.10), particularly in Art. 58 ff. ParlA on quorum and Art. 71 ff. ParlA on decision-making. The rules of procedure of both chambers contain further implementing provisions.

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

#3.1 Presence Quorum (Para. 1)

N. 6 Quorum requires that the majority of the members of a chamber are present. This means at least 101 of 200 members in the National Council, at least 24 of 46 members in the Council of States. This presence quorum applies to all deliberations, regardless of the significance of the business.

N. 7 According to doctrine (Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, N. 1665), "present" means physical presence in the chamber hall. Representation is not permitted. In practice, attendance is controlled by electronic presence recording. The chamber presidencies only establish quorum upon request (Art. 58 para. 2 ParlA).

#3.2 Voting Majority (Para. 2)

N. 8 Ordinary decision-making takes place with the majority of those voting (simple majority). Abstentions and invalid votes are not counted. In case of a tie, the president has the casting vote (Art. 73 ParlA).

N. 9 The formulation "in both chambers and in the United Federal Assembly" clarifies that the majority principle applies both to separate deliberations and to joint sessions. This particularly concerns elections by the United Federal Assembly (→ Art. 157 BV).

#3.3 Qualified Majorities (Para. 3)

N. 10 For certain decisions, the constitution requires the consent of the majority of the members of each chamber (absolute majority). This means at least 101 votes in the National Council, at least 24 in the Council of States, regardless of the number of those present.

N. 11 The declaration of urgency for federal acts (lit. a) enables immediate entry into force before the expiry of the referendum period. The Federal Supreme Court has held that the urgency clause is to be interpreted restrictively, as it restricts the referendum rights of the electorate (BGE 147 I 420 E. 4.2). The material requirements for urgency are regulated in → Art. 165 BV.

N. 12 The financial thresholds (lit. b) amount to 20 million francs for one-time and 2 million francs for recurring expenditure. "New" expenditure means that which is not already provided for in an act or a generally binding federal decree. The decisive factor is the total sum of a credit, not individual tranches.

N. 13 The increase in total expenditure in case of extraordinary financial requirements (lit. c) refers to → Art. 126 para. 3 BV (debt brake). This provision allows exceeding the expenditure ceiling in extraordinary situations (severe recession, natural disasters).

#3.4 Indexation (Para. 4)

N. 14 The Federal Assembly can adjust the financial thresholds to inflation by ordinance. This constitutes an exception to the principle that constitutional provisions can only be modified through constitutional amendment. The delegation is narrowly limited to a purely mathematical inflation adjustment (Biaggini, Kommentar BV, Art. 159 N. 11).

#4. Legal Consequences

N. 15 Decisions made without the required quorum are void. In case of violation of the presence quorum (para. 1), however, the quorum can only be challenged if a corresponding motion was made before the vote (Art. 58 para. 2 ParlA).

N. 16 Violation of the qualified majority requirements (para. 3) leads to rejection of the motion. Subsequent "healing" through a new vote is not possible; the business must be resubmitted.

N. 17 Parliamentary acts generally cannot be challenged before the Federal Supreme Court according to → Art. 189 para. 4 BV. An exception exists for serious procedural errors that can be challenged as arbitrary within the framework of an abstract review of norms (BGE 133 I 178 E. 3.2).

#5. Controversial Issues

N. 18 It is disputed whether quorum is to be assessed according to the same criteria for electronic or hybrid sessions. Ehrenzeller (St. Galler Kommentar, Art. 159 N. 5) takes the position that "presence" presupposes physical presence. Graf (Die Organisation der Bundesversammlung, p. 234) advocates for a functional interpretation that also encompasses virtual participation, provided that the identity of participants is unquestionably established and equivalent participation is guaranteed.

N. 19 The scope of inflation adjustment according to para. 4 is also discussed controversially. Sägesser interprets the competence narrowly and allows only adjustment to the national consumer price index. Vallender (St. Galler Kommentar, Art. 159 N. 12) considers a certain flexibility permissible, such as the use of specific sub-indices.

#6. Practical Notes

N. 20 Motions to establish quorum are tactical instruments of the parliamentary opposition. They must be made before the start of the vote and lead to interruption of proceedings until the quorum is reached.

N. 21 For financial proposals, it should be examined early whether the threshold values according to para. 3 lit. b are reached. The decisive factor is the total sum over the entire commitment period. Dividing into annual tranches to circumvent the qualified majority is inadmissible.

N. 22 The declaration of urgency should be used with restraint. While the Federal Supreme Court does not directly review parliamentary acts, the restrictive interpretation of urgency can be relevant in the later application of the act.

N. 23 For the practice of the United Federal Assembly, it should be noted that no faction declarations are made there and votes are generally secret (Art. 71 para. 2 ParlA). The absolute majority amounts to 124 votes.

#Declaration of urgency for federal acts

BGE 147 I 420 of 11 March 2021 The urgency clause must be interpreted restrictively, as it limits the referendum rights of voters. The Federal Court examines the requirements for urgency declarations at the cantonal level, with the principles applying analogously to federal law.

«The declaration of urgency limits the referendum rights of voters; the urgency clause must be interpreted restrictively. (...) Compelling extraordinary grounds exist that justify a declaration of urgency when an important matter is affected in view of the significantly endangered health of voters in the conduct of municipal assemblies.»

Judgment 1C_529/2022 of 31 October 2022 The Federal Court does not consider voting rights appeals against federal acts declared urgent. The appeal against the Federal Act on Urgent Measures for Electricity Supply was dismissed as inadmissible.

«According to Art. 189 para. 4 Cst., acts of the Federal Assembly and the Federal Council cannot be challenged before the Federal Court, unless the law so provides. This also applies to appeals for violations of political rights.»

#Parliamentary procedural guarantees

BGE 133 I 178 of 23 January 2007 Serious procedural errors in the parliamentary legislative process can lead to the annulment of the enactment. The non-observance of constitutional procedural provisions can be challenged as arbitrary.

«The disregard of the requirement for a second reading appears as a serious formal defect of the parliamentary legislative process, which, although for reasons of legal certainty cannot absolutely preclude the binding nature of the relevant enactment, must nonetheless - if it is challenged within the time limit with an available legal remedy - lead to its annulment.»

BGE 144 I 43 of 22 November 2017 Members of parliament may be legitimised to appeal when particularly affected in their parliamentary function. The decision concerned the parliamentary right of initiative at the cantonal level.

«The ordinary members of the Grand Council have a particularly close relationship to the contested enactment - which grants parliamentary right of initiative to substitute members of the Grand Council and thereby changes the number of persons entitled to initiate a parliamentary procedure.»

#Financial powers and thresholds

BGE 111 IA 284 of 29 May 1985 Qualified majority requirements in parliamentary procedures are constitutional. The decision dealt with municipal initiatives requiring a two-thirds majority.

«The Municipal Council is competent to declare invalidity and a two-thirds majority is required for this. According to the legislation of the Canton of Zurich, no authority can intervene at the cantonal level if Parliament submits an individual initiative that is unlawful in content to the people for voting.»

#Quorum and voting procedures

BGE 100 IA 1 of 23 January 1974 Parliamentary immunity and related procedural rules are structured differently. Decisions on the lifting of immunity are final.

«Parliamentary immunity is partly anchored in the cantonal constitution, partly in mere acts (e.g. Act on the Responsibility of Authorities and Officials, Code of Criminal Procedure, Rules of Procedure of the cantonal parliament). The scope of immunity also varies among the cantons.»