#1. Legislative History
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.
#2. Systematic Classification
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.
#3. Elements of the Offence / Normative Content
N. 5 Temporal 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. 6 Qualified 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. 7 Time 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. 8 Constitutional 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.
#4. Legal Consequences
N. 9 Immediate 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. 10 Subsequent 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. 11 Prohibition 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.
#5. Points of Controversy
N. 12 Scope 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. 13 Constitutionally 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. 14 Justiciability: 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.
#6. Practical Guidelines
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.