#1. Legislative history

N. 1 Art. 164 BV gives concrete form to the principle of legality for federal legislation anchored in Art. 5 para. 1 BV. The provision goes back to Art. 85 no. 2 of the former BV, but was substantially clarified and systematically reorganized within the framework of the total revision (BBl 1997 I 1, 407 f.). With the new version, the constitutional legislator wanted to strengthen the reservation of law and regulate the delegation of legislative powers more clearly (BBl 1997 I 408).

N. 2 The Federal Council's message emphasizes that the new constitution should «underscore parliamentary responsibility for important legal provisions» (BBl 1997 I 408). The catalogue in para. 1 lit. a–g was deliberately formulated as a non-exhaustive enumeration («in particular») in order to maintain flexibility for future developments.

#2. Systematic classification

N. 3 Art. 164 BV is located in Title 5 on the Federal Authorities, in Chapter 1 on the Federal Assembly. The norm belongs to the central competence provisions of the legislature and is closely linked with:

• → Art. 5 BV (principle of legality as the foundation of the rule of law)
• → Art. 36 para. 1 BV (legal basis for restrictions on fundamental rights)
• → Art. 127 para. 1 BV (legal basis for taxes)
• → Art. 182 BV (Federal Council's ordinance competence)
• ↔ Art. 163 BV (forms of Federal Assembly enactments)

N. 4 The provision embodies the principle of separation of powers by reserving the most important normative decisions to the democratically legitimized parliament (Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, N 1796).

#3. Elements of the provision / Normative content

#Concept of «important legal provisions»

N. 5 The central concept of «important legal provisions» is made concrete through various criteria. According to the Federal Supreme Court's case law, provisions are important if they (BGE 131 II 13 E. 6.3):

• regulate essential questions of the community
• are politically controversial
• have significant financial implications
• affect a large number of persons
• deeply interfere with the legal position of those affected

N. 6 Legal doctrine has further differentiated these criteria. Tschannen (Staatsrecht, § 42 N 9) emphasizes the need for democratic legitimacy as the guiding criterion. Rhinow/Schefer/Uebersax (Verfassungsrecht, N 3015) focus on «normative density»: the more precisely a matter must be regulated, the more it belongs in formal law.

#The example catalogue (lit. a–g)

N. 7 Political rights (lit. a): Includes active and passive voting rights, initiative and referendum rights as well as the procedures of political decision-making. The detailed regulation is contained in the Federal Act on Political Rights (BPR).

N. 8 Restrictions on constitutional rights (lit. b): Refers to Art. 36 para. 1 BV. Every restriction on fundamental rights requires a formal legal basis, whereby serious interferences must be provided for in the law itself (BGE 134 I 322 E. 2.6).

N. 9 Rights and obligations of persons (lit. c): Covers the fundamental provisions on the legal status of natural and legal persons. Müller (St. Galler Kommentar, Art. 164 N 15) distinguishes between constitutive norms (which create new rights/obligations) and merely concretizing provisions.

N. 10 Law on levies (lit. d): → Art. 127 BV concretizes this requirement for taxes. The «fundamental provisions» include the tax object, tax subject and assessment basis. Tax rate design can be delegated, provided the law establishes the key parameters (BGE 142 II 182 E. 3.3).

N. 11 Tasks and services of the Confederation (lit. e): State service obligations and subsidy provisions belong in the law. It is controversial to what extent service reductions also require the form of law (Biaggini, BV Kommentar, Art. 164 N 9).

N. 12 Implementation obligations of the cantons (lit. f): The federal implementation of federal law (→ Art. 46 BV) must be regulated by law if it goes beyond normal implementation obligations and creates special burdens.

N. 13 Organization and procedure (lit. g): The basic principles of administrative organization and essential procedural guarantees must be regulated by law. Details can be regulated in ordinances (BGE 148 I 104 E. 4.2).

#4. Legal consequences

N. 14 If a norm violates the reservation of law, it is void. The Federal Supreme Court examines Federal Council ordinances incidentally for their legality (→ Art. 190 BV permits the non-application of ordinances that violate the law). In cantonal law, violation of Art. 164 BV leads to annulment in appeal proceedings.

N. 15 Practical enforcement occurs through various legal remedies:

• Abstract norm control against cantonal enactments (Art. 82 lit. b BGG)
• Concrete norm control for federal ordinances
• Individual appeal in case of being affected

#5. Points of dispute

#Scope of delegation authority

N. 16 The scope of para. 2 is disputed. While Tschannen (Staatsrecht, § 42 N 15) advocates generous delegation as long as the law regulates the basic principles, Biaggini (BV Kommentar, Art. 164 N 12) requires restrictive handling: only «technical» and «subordinate» questions may be delegated.

N. 17 The Federal Supreme Court takes a mediating position: delegation must be based on a «sufficiently precise» foundation, whereby the requirements increase with the scope of the delegated matter (BGE 139 II 460 E. 4.1). Critical of this is Griffel (Umweltrecht, § 3 N 45), who demands clearer criteria.

#Delimitation from independent ordinances

N. 18 The permissibility of independent ordinances based on Art. 182 para. 1 BV is controversial. Häfelin/Haller/Keller/Thurnherr (Bundesstaatsrecht, N 1823) recognize a narrow area for organizational ordinances. Other commentators categorically reject independent ordinances with external effect.

N. 19 Practice shows a tendency toward extensive use of implementing ordinances. Malinverni/Hottelier/Hertig Randall/Flückiger (Droit constitutionnel suisse, N 1456) criticize this «érosion du principe de légalité» and call for a return to the reservation of law.

#6. Practical guidance

N. 20 In legislative drafting, it must be examined early which matters mandatorily belong in formal law. The Federal Council's message should explicitly justify delegation norms and show their limits. Draft ordinances must be measured against the standard of legal authorization.

N. 21 For legal application, the following applies: in case of doubt, a reservation in favor of formal law is to be assumed. Ordinance provisions that go beyond mere implementing regulations require an express legal basis. Dynamic reference to technical norms is only permissible with clear legal authorization.

N. 22 Cantonal practice must observe federal law requirements: cantonal implementing provisions for federal acts may not exceed the framework prescribed by federal law (→ Art. 49 BV). This applies particularly when concretizing federal norms in the area of fundamental rights restrictions.

#Statutory Reservation for Important Legislative Provisions

#Telecommunications Market and Infrastructure Access

BGE 131 II 13 E. 6.3 (30 November 2004)
Interconnection obligation for subscriber connections ("last mile") requires formal legislative basis
The Federal Court clarified that opening the "last mile" in telecommunications as an important legislative provision requires a statutory basis, as it has significant economic effects and affects the legal position of a large number of persons.

«The Federal Constitution elevates the principle of legality to a general rule of law principle in Art. 5 para. 1 BV, which is binding for all state activity. Art. 164 para. 1 BV concretises this principle for federal legislation. Accordingly, important legislative provisions are to be enacted in the form of federal acts.»

#Smoking Ban Regulations

BGE 134 I 322 E. 2.6 (5 September 2008)
Cantonal smoking ban ordinance without sufficient legislative basis
A Geneva ordinance on smoking bans in public spaces could not be based on an indeterminate constitutional provision that contained no delegation of legislative powers to the executive.

«The contested ordinance can neither be based on this provision, which is not sufficiently precise and contains no delegation of legislative powers to the executive, nor on the general police clause.»

#Driving Licence Withdrawal for Foreign Offences

BGE 133 II 331 E. 6.4 (2007)
Warning withdrawal for traffic offences abroad inadmissible due to lack of legislative basis
The Federal Court changed its case law and established that a warning withdrawal for traffic offences abroad requires an explicit legislative basis, as the SVG contained no sufficiently clear provisions.

«The formal act (SVG) contains no sufficiently clear basis either according to its wording or according to its meaning and purpose. In particular, it contains no sufficiently clear indications for the qualification of warning withdrawal as a measure ordered for the sake of traffic safety with preventive and educational character.»

#Delegation of Legislative Powers

#Value Added Tax Group Taxation

BGE 139 II 460 E. 4.1 (16 August 2013)
Ordinance provision exceeds framework of implementing ordinance
An ordinance provision that generally excluded occupational benefit institutions from value added tax group taxation exceeded the framework of a mere implementing ordinance and violated the principle of separation of powers.

«Art. 16 para. 3 MWSTV 2009 thus exceeds the framework of a mere implementing ordinance and thereby violates the principle of separation of powers.»

#Approval Procedures in Foreign Nationals Law

BGE 141 II 169 E. 3.2 (30 March 2015)
Requirements for legislative delegation in foreign nationals law
The transfer of approval powers to the State Secretariat by the Federal Council violated the delegation principles, as the legislative basis was too indeterminate.

«Art. 164 para. 1 BV concretises this principle for federal legislation. Accordingly, important legislative provisions are to be enacted in the form of federal acts. This includes in particular the restriction of constitutional rights and the fundamental provisions on rights and obligations of persons.»

#University Fees

BGE 120 IA 1 E. 3 (1994)
Delegation of fee setting to the executive
The Federal Court examined the requirements for the legislative basis for delegating the setting of university fees to the cantonal executive and established constitutional minimum requirements.

«Delegation of legislative power for setting the amount of university fees to the executive; requirements for the legislative basis.»

#Tax Law Provisions

#Tax Rate for Landfill Contribution

BGE 142 II 182 E. 3.3 (2016)
Tax law powers between Confederation and cantons
The Federal Court clarified the delimitation of legislative powers in the levying of taxes and charges between Confederation and cantons.

«Art. 164 para. 1 let. d BV requires that the fundamental provisions on the circle of persons liable to pay charges as well as the subject and assessment of charges be regulated in a federal act.»

#Precision Requirements

#Criminal Law and Cantonal Misdemeanours

BGE 138 IV 13 E. 3.2 (17 November 2011)
«Nude hiking» ban and precision requirement
The Federal Court examined a cantonal criminal provision for gross violation of morals and decency and emphasised the requirements for precision of criminal offences.

«According to Art. 5 para. 1 BV, all state action requires a legislative basis. The legality principle states that a state act must be based on a material legislative basis that is sufficiently precise and enacted by the constitutionally competent organ.»

#Implementing Ordinances

#Environmental Law and Mobile Phone Antennas

BGE 126 II 399 E. 5.3 (2000)
Protection against non-ionising radiation
The Federal Court clarified the delimitation between statute-replacing and implementing ordinances in environmental law using the example of limit values for mobile phone antennas.

«Implementing ordinances may neither modify nor repeal the statutory provision to be executed and in particular may neither additionally restrict the rights of citizens nor impose further obligations on them.»

#Contaminated Site Remediation

BGE 131 II 271 E. 6.2 (2005)
Charge for remediation of contaminated sites
An ordinance provision on charge rates for waste export to underground repositories was examined for its compatibility with the statutory reservation.

«The constitutional principles are to be observed in the question of the legality of the unbundling regulation in the telecommunications services ordinance.»