1Federal acts whose coming into force cannot be delayed (emergency federal acts) may be declared urgent by an absolute majority of the members of each of the two Councils and be brought into force immediately. Such acts must be of limited duration.
2If a referendum is requested on an emergency federal act, the act must be repealed one year after being passed by the Federal Assembly if it has not in the meantime been approved by the People.
3An emergency federal act that does not have the Constitution as its basis must be repealed one year after being passed by the Federal Assembly if it has not in the meantime been approved by the People and the Cantons. Any such act must be of limited duration.
4An emergency federal act that is not approved in a popular vote may not be renewed.
Art. 165 BV governs the exception to the normal legislative procedure in urgent situations. When a federal act must take effect immediately, Parliament may declare it urgent. This eliminates the usual 100-day waiting period for a possible referendum (popular vote).
Who is affected? Parliament (both chambers must agree), the people (temporarily lose their right of co-determination) and all those affected by the new act (it takes effect immediately).
Prerequisites: The act must be genuinely urgent – it must «brook no delay». Both parliamentary chambers must agree with a majority of all members (not just those present). The act must be limited in time.
Subsequent control: The people can still vote. For normal acts, a popular vote suffices. If the act violates the Constitution, the people and cantons must agree. If the act is rejected, it ceases to have effect after one year and may not be renewed.
Example from practice: During the Corona pandemic in 2020, Parliament enacted urgent acts for economic aid and health measures. These could take effect immediately but were later confirmed by the people. Another example is anti-terrorism legislation following international crises.
The provision protects democracy from abuse: genuinely urgent measures are possible, but the people retain the final say.
N. 1 The constitutional revision of 1999 led to a fundamental reorganisation of urgent law. The Federal Message on a New Federal Constitution of 20 November 1996 (BBl 1997 I 1, 406 ff.) emphasised the need to give constitutional law a more precise framework for urgent law, which had previously been based on Art. 89bis aFC. The constitutional legislator pursued three main objectives: first, strengthening democratic legitimacy through clear time limitation rules; second, distinguishing between constitutionally compliant and constitutionally non-compliant urgent law; and third, preventing abusive application through the prohibition of renewal of rejected proposals.
N. 2 The historical development of urgent law dates back to the interwar period. Urgent federal decrees were used extensively, particularly during the economic crisis of the 1930s and in the Second World War. This practice led in 1949 to the introduction of Art. 89bis aFC, which for the first time created a constitutional basis for urgent law. The total revision of 1999 adopted the proven principles but considerably clarified the requirements and limits.
N. 3 Art. 165 FC is classified in Title 3 ("Confederation, Cantons and Communes"), Chapter 5 ("Federal Assembly"), Section 3 ("Procedure"). The provision is closely systematically connected with → Art. 164 FC (legislation), → Art. 166 FC (parliamentary procedure) and → Art. 141 FC (optional referendum). It forms an exception to the ordinary legislative procedure and modifies the regular referendum rights.
N. 4 In relation to popular rights, Art. 165 FC represents a qualified restriction. While the ordinary optional referendum according to Art. 141 FC has a suspensive effect, urgent law enables immediate entry into force subject to a subsequent popular vote. This construction reflects the tension between democratic legitimacy and state capacity for action.
N. 5Temporal urgency (para. 1): The central element of the offence "whose entry into force cannot be delayed" requires qualified temporal urgency. According to Federal Supreme Court case law (BGE 147 I 420 E. 2.3), the urgency clause must be interpreted restrictively. It is not sufficient that rapid regulation appears desirable; rather, there must be a situation where waiting until the expiry of the referendum period would entail considerable disadvantages for important public interests.
N. 6Qualified majority (para. 1): The declaration of urgency requires the consent of the majority of the members of each Council, i.e. at least 101 votes in the National Council and 24 votes in the Council of States. This absolute majority represents a higher hurdle than the simple majority of those voting on ordinary resolutions and underlines the exceptional character of urgent law.
N. 7Time limitation (para. 1 and 3): Urgent federal acts must be subject to a time limit. Legal doctrine (Tschannen, St. Gallen Commentary FC, Art. 165 N. 8) unanimously holds that the time limitation must be established in the act itself and may not be arbitrarily long. The time limitation serves to prevent permanent circumvention of the ordinary legislative procedure.
N. 8Constitutional conformity (para. 2 and 3): Art. 165 FC distinguishes between constitutionally compliant urgent federal acts (para. 2) and those without a constitutional basis (para. 3). This distinction has consequences for the referendum procedure: constitutionally compliant acts are subject only to the optional referendum (popular vote), while constitutionally non-compliant acts are subject to the obligatory vote by people and cantons.
N. 9Immediate entry into force: The primary legal consequence of the declaration of urgency is the possibility of immediate entry into force without observing the referendum period of 100 days according to Art. 141 para. 1 FC. The act takes full legal effect immediately after its adoption and publication.
N. 10Subsequent democratic control: For constitutionally compliant urgent federal acts (para. 2), the act ceases to have effect if it is not accepted by the people within one year of adoption by the Federal Assembly. The period begins to run regardless of whether a referendum is launched or not. For constitutionally non-compliant acts (para. 3), the consent of people and cantons is required.
N. 11Prohibition of renewal (para. 4): An urgent federal act rejected in the popular vote cannot be renewed. This absolute prohibition of renewal prevents the Federal Assembly from circumventing the popular will through renewed declaration of urgency. According to prevailing doctrine (Ehrenzeller/Schindler/Schweizer/Vallender, St. Gallen Commentary FC, Art. 165 N. 15), the prohibition relates to the essential normative content, not to every detail.
N. 12Scope of urgency: In legal doctrine, it is disputed how narrowly the term "cannot be delayed" should be interpreted. Rhinow/Schefer/Uebersax (Swiss Constitutional Law, 3rd ed. 2016, N. 2687) advocate for a very restrictive interpretation and require an immediate threat to important state objectives. In contrast, Tschannen (St. Gallen Commentary FC, Art. 165 N. 5) takes a somewhat less strict position and allows preventive action in foreseeable crisis situations to suffice.
N. 13Constitutionally non-compliant urgency: The permissibility of constitutionally non-compliant urgent federal acts according to para. 3 is controversially discussed. Häfelin/Haller/Keller/Thurnherr (Swiss Federal Constitutional Law, 10th ed. 2020, N. 1893) see this as a problematic breach of constitutional supremacy. Biaggini (FC Commentary, 2nd ed. 2017, Art. 165 N. 6), however, justifies the provision as a necessary valve for extraordinary crisis situations, but emphasises the need for utmost restraint.
N. 14Justiciability: Another point of controversy concerns the judicial reviewability of the declaration of urgency. The Federal Supreme Court held in BGE 148 IV 298 E. 3.2.1 that acts of the Federal Assembly cannot in principle be challenged (Art. 189 para. 4 FC). Parts of legal doctrine (Kiener/Kälin/Wyttenbach, Fundamental Rights, 3rd ed. 2018, § 3 N. 78) criticise this case law as constitutionally questionable and call for at least an evidence control in cases of obvious abuse.
N. 15 Particular care is required when preparing urgent legislation. The message must substantiate the urgency and explain why the ordinary procedure cannot be awaited. Mere assertions or reference to political pressure for action do not suffice. Specifically, the threatening disadvantages of non-action must be specified.
N. 16 The time limitation must be provided for in the draft act itself. In practice, a time limitation of 1-2 years has proven usual. With longer periods, there is a risk that urgency will be questioned. If the provision is to remain in force beyond the time limitation, the ordinary legislative procedure should be initiated in good time.
N. 17 For parliamentary treatment, close coordination between the Councils is recommended, as the qualified majority must be achieved in both chambers. Experience shows that particularly in the Council of States, the required 24 votes are not always secured for controversial proposals. Prior consultation with faction leaders can avoid surprises.
BGE 147 I 420 — 11 March 2021
Restrictive interpretation of the urgency clause for cantonal laws
The urgency clause must be interpreted restrictively, as the declaration of urgency deviates from the ordinary procedure and restricts the referendum rights of voters.
«The declaration of urgency restricts the referendum rights of voters; the urgency clause must be interpreted restrictively. This is justified by the fact that the declaration of urgency deviates from the ordinary procedure and restricts the referendum rights of voters in individual cases.»
BGE 148 IV 298 — 11 April 2022
Constitutionality of the Al-Qaïda/IS Act of 12 December 2014
The Al-Qaïda/IS Act enacted through the urgency procedure constitutes an act in the formal sense that complies with the principle of legality.
«The Al-Qaïda/IS Act enacted through the urgency procedure constitutes an act in the formal sense that meets the principle of legality enshrined in Art. 1 SCC.»
BGE 147 I 420 — 11 March 2021
Covid-19 pandemic as exceptional grounds
The Covid-19 pandemic justifies the declaration of urgency where there is significant threat to the functioning capacity of state institutions.
«Given the volatile legal and health situation in autumn 2020, there was a considerable interest in the immediate entry into force of the act, particularly to ensure the decision-making and functioning capacity of Zurich municipalities; the temporal urgency requirement is met.»
Urteil 1C_529/2022 — 31 October 2022
Non-entry in voting rights complaint against urgency clause
Acts of the Federal Assembly cannot generally be challenged before the Federal Court, unless the law provides for this.
«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 provides for this. This also applies to complaints for violation of political rights.»
BGE 147 I 420 — 11 March 2021
Transfer of principles to cantonal level
The principles developed for Art. 165 Cst. apply analogously to cantonal urgency clauses.
«Regarding the urgency clause provided for in the Geneva Cantonal Constitution, the Federal Court held that this - analogous to Art. 165 Cst. - must be interpreted restrictively.»