#Genesis

N. 1 Art. 163 Cst. stems from the total revision of the Federal Constitution of 1999. The provision corresponds largely in content to Art. 5 para. 1 old Constitution (1874), but specifies the various forms of enactment of the Federal Assembly. The Message on a new Federal Constitution of 20 November 1996 (BBl 1997 I 1) emphasises that the norm "explicitly names the various types of enactment of the Federal Assembly" (BBl 1997 I 412). The constitutional revision aimed to anchor constitutionally the distinctions between various forms of enactment that had been developed in practice.

N. 2 The explicit mention of ordinances as a law-making form of enactment in para. 1 was an innovation compared to the old Federal Constitution. This codified the practice that the Federal Assembly can itself issue ordinances in certain cases, for example in urgent measures or when the law expressly provides for this (BBl 1997 I 412).

#Systematic Classification

N. 3 Art. 163 Cst. is located in Title 5 on the Federal Authorities, in Chapter 1 on the Federal Assembly. The provision defines the forms of action of Parliament and is closely linked with:

• → Art. 164 Cst. (Legislation, in particular statutory form)
• → Art. 165 Cst. (Emergency law)
• → Art. 141 Cst. (Optional referendum)
• → Art. 141a Cst. (Mandatory referendum)

N. 4 The norm forms, together with Art. 164 Cst., the cornerstone of the parliamentary legislative procedure. While Art. 163 Cst. regulates the forms of enactment, Art. 164 Cst. determines which matters must mandatorily be enacted in statutory form (principle of legality).

#Elements of the Offence / Content of the Norm

#Law-making Provisions (para. 1)

N. 5 Law-making provisions are general-abstract norms that cover an indefinite multitude of addressees and situations. According to doctrine (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1843), law-making enactments are characterised by the following features:

• Generality (indefinite multitude of addressees)
• Abstraction (indefinite multitude of situations)
• External binding effect

N. 6 The Federal Assembly has two forms available for law-making provisions:

Federal Act: The ordinary form for law-making enactments. Federal acts are subject to the optional referendum (→ Art. 141 para. 1 lit. a Cst.) and must go through the ordinary legislative procedure.

Ordinance of the Federal Assembly: An extraordinary form that is only applied in cases provided for by law or in cases of urgency. Rhinow/Schefer/Uebersax (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 2848) emphasise the exceptional character of parliamentary ordinances.

#Federal Decrees (para. 2)

N. 7 Federal decrees are all enactments of the Federal Assembly that do not have law-making character. The Constitution distinguishes two categories:

• Federal decrees subject to referendum: Subject to the optional or mandatory referendum
• Simple federal decrees: Not subject to referendum

N. 8 Simple federal decrees typically concern:

• Elections (→ Art. 157 Cst., Art. 168 Cst.)
• Approval of international treaties without referendum obligation
• Budget and state accounts (→ Art. 167 Cst.)
• Administrative internal affairs

#Legal Consequences

N. 9 The choice of form of enactment has significant legal consequences:

For Federal Acts:

• Optional referendum possible (→ Art. 141 para. 1 lit. a Cst.)
• Publication in the Official Compilation (AS)
• Subject to judicial review by the Federal Supreme Court (→ Art. 189 para. 4 Cst.)

N. 10 For parliamentary ordinances:

• Basically no referendum, except for independent ordinances
• Publication in the AS when having external effect
• Limited judicial review

N. 11 For federal decrees:

• Depending on type, referendum obligation or not
• Simple federal decrees are only published in the Federal Gazette
• No direct appealability to the Federal Supreme Court

#Points of Dispute

N. 12 The distinction between law-making and non-law-making enactments is disputed in doctrine. While Tschannen/Zimmerli/Müller (Allgemeines Verwaltungsrecht, 4th ed. 2014, § 20 N 15) argue for a formal approach, Müller (in: St. Galler Kommentar BV, 4th ed. 2023, Art. 163 N 8) advocates a material distinction according to the content of the norm.

N. 13 The admissibility of individual case laws is also controversially discussed. Häfelin/Haller/Keller/Thurnherr (op. cit., N 1851) recognise their admissibility in exceptional cases, while Biaggini (BV-Kommentar, 2nd ed. 2017, Art. 163 N 4) is more restrictive and points to the danger of circumventing the separation of powers.

N. 14 Regarding parliamentary ordinances, there is disagreement about their scope of application. Ehrenzeller (in: St. Galler Kommentar BV, 4th ed. 2023, Art. 163 N 15) sees these as limited to cases of urgency, while Waldmann also recognises other cases provided for by law.

#Practical Notes

N. 15 In choosing the form of enactment, the content is primarily decisive: If general-abstract regulations with external effect are to be created, a law-making form (Federal Act or ordinance) must mandatorily be chosen. The designation by the Federal Assembly is not decisive (BGE 128 II 66 E. 2.2).

N. 16 Significant for practice is the ability to hold a referendum: If an enactment is to be subject to the optional referendum, the form of a Federal Act or of a federal decree subject to referendum must be chosen. The subsequent change of the form of enactment is not possible.

N. 17 For international treaties, it should be noted: Approval takes place through federal decree, whereby depending on the content of the treaty, the optional or mandatory referendum applies (→ Art. 140 para. 1 lit. b Cst., Art. 141 para. 1 lit. d Cst.). The federal decree on approval is not a law-making enactment within the meaning of Art. 163 para. 1 Cst.

#Distinction between legislative and non-legislative enactments

BGE 128 II 66 of 6 November 2001
Constitutional appeal as the only admissible legal remedy against cantonal legislative enactments.
The judgment confirms the central importance of the distinction between legislative and non-legislative enactments for the legal remedies system.

«Constitutional appeal is the only admissible legal remedy for challenging a cantonal (legislative) enactment, even if it concerns a matter falling within the scope of Art. 73 para. 1 StHG.»

#Referendum and legislative enactments

BGE 99 IA 518 of 24 October 1973
Subject of referendum for legislative enactments.
The Federal Court specifies that the referendum must generally relate to the entire legislative enactment.

«Referendum against a legislative enactment. Must the referendum relate to the enactment as a whole or can it also be directed against individual provisions thereof?»

1C_607/2012 of 5 June 2013
Referendum procedure for federal decrees on treaty approval.
The procedure concerned the failure of the referendum against federal decrees on the approval of treaties with Germany and other countries.

«The referendum period of 100 days (Art. 141 para. 1 Cst.) begins with the official publication of the federal decree in the Federal Gazette.»

#Distinction between generally binding and simple federal decrees

BGE 102 IA 167 of 31 March 1976
Municipal autonomy and generally binding enactments.
The Federal Court distinguishes between different forms of generally binding enactments at municipal level.

«The cantonal municipalities of Schwyz enjoy the protection of municipal autonomy when enacting municipal structure plans, as well as when creating generally binding land use plans.»

BGE 93 I 666 of 10 November 1967
Legal effects of federal decrees after their lapse.
The judgment deals with the continuity of legal effects even after the expiry of a federal decree.

«The refund of a federal contribution that was granted on the basis of the Federal Decree on Measures to Promote Housing Construction Activity of 8 October 1947 can still be demanded even after this decree has lapsed.»

#Legislative competence and delegation limits

BGE 141 II 169 of 30 March 2015
Delegation limits in the transfer of powers through Federal Council ordinances.
The judgment specifies the constitutional limits of delegation of legislative powers.

«The transfer of the power to consent to the granting or extension of a foreign nationals permit to the State Secretariat by the Federal Council violates the delegation limits in the cases of Art. 85 para. 1 lit. a and b VZAE.»