#Legislative History

N. 1 Art. 167 Fed. Const. was introduced as part of the total revision of the Federal Constitution in 1999 and consolidates the financial competences of the Federal Assembly in a single provision. The Message concerning a new Federal Constitution of 20 November 1996 (Federal Gazette 1997 I 1) emphasises that this norm constitutionally enshrines the traditional parliamentary budget authority. The provision substantively adopted the previous practice under the old Federal Constitution of 1874, where budget competences were scattered across various articles.

N. 2 The norm was deliberately formulated concisely in order to leave the Federal Assembly sufficient scope for discretion in exercising its financial competences. The constituent assembly thereby sought to underscore the central role of Parliament in the federal financial household (Federal Gazette 1997 I 434).

#Systematic Classification

N. 3 Art. 167 Fed. Const. is positioned in Title 5 «Federal Authorities» under Chapter 1 «Federal Assembly». The norm is closely connected to:

• → Art. 126 Fed. Const. (financial management), which regulates the substantive principles of fiscal policy
• → Art. 159 para. 3 lit. b Fed. Const., which provides for qualified majorities for certain expenditure decisions
• → Art. 166 Fed. Const. (oversight), which also encompasses financial supervision
• → Art. 183 Fed. Const., which delimits the financial competences of the Federal Council

N. 4 The provision concretises the principle of separation of powers (→ Art. 144 Fed. Const.) in the financial sphere: Parliament as the people's representative decides on the use of state finances, while the executive is responsible for implementation.

#Elements of the Provision / Normative Content

N. 5 «Federal expenditure»: This term encompasses all uses of federal resources, irrespective of their legal qualification (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1823). The prevailing doctrine distinguishes between one-time and recurring expenditure, both of which are subject to parliamentary decision-making competence (Tschannen/Zimmerli/Müller, Allgemeines Verwaltungsrecht, 4th ed. 2014, § 12 N 28).

N. 6 «Budget»: The budget is the binding financial planning for one financial year. According to Ehrenzeller/Schindler/Schweizer/Vallender (St. Galler Kommentar BV, 4th ed. 2023, Art. 167 N 8), it has a dual nature: it is both a planning instrument and an authorisation basis for expenditure. The budget binds the administration but does not create subjective rights for third parties.

N. 7 «State accounts»: The state accounts document the actual revenue and expenditure of a financial year. Their approval by the Federal Assembly has primarily a political control function and discharges the Federal Council (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, § 18 N 45).

#Legal Consequences

N. 8 Art. 167 Fed. Const. establishes an exclusive competence of the Federal Assembly in the financial sphere. The Federal Council cannot incur expenditure without parliamentary authorisation that goes beyond the approved budget (Sägesser, Kommentar zum Finanzhaushaltgesetz, 2nd ed. 2014, Art. 4 N 15).

N. 9 The decisions of the Federal Assembly under Art. 167 Fed. Const. are not subject to referendum (→ Art. 163 para. 2 Fed. Const.). This strengthens parliamentary financial authority but largely excludes direct democratic control (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 892).

N. 10 Violations of approved credits can have disciplinary and criminal consequences (→ Art. 314 Criminal Code). The responsibility primarily affects the implementing authorities, not Parliament itself.

#Points of Contention

N. 11 Binding effect of the budget: The degree of binding effect of the budget is disputed. Tschannen (Staatsrecht der Schweizerischen Eidgenossenschaft, 5th ed. 2021, § 42 N 18) advocates strict binding, while Lienhard/Mächler (Finanzrecht, 2017, N 234) argue for more flexibility in unforeseen events. Practice follows a mediating solution with supplementary credits.

N. 12 Level of detail: The required level of detail of the budget is controversially discussed. Sägesser (op. cit., Art. 5 N 8) demands a detailed breakdown for effective parliamentary control. Other commentators warn against over-steering the executive through overly detailed budget requirements. The applicable Financial Budget Act seeks a middle path.

N. 13 Relationship to substantive legislation: The relationship between expenditure decisions under Art. 167 Fed. Const. and statutory expenditure obligations is disputed. The majority opinion (Ehrenzeller, St. Galler Kommentar, Art. 167 N 14; Häfelin/Haller/Keller/Thurnherr, op. cit., N 1825) considers substantive legislation as sufficient expenditure basis. A minority (Reich, Finanzordnung, 2012, p. 156) demands additional credit decisions.

#Practice Notes

N. 14 The Federal Assembly exercises its competences under Art. 167 Fed. Const. in the annual budget process. The parliamentary finance committees prepare the decisions and thoroughly examine the Federal Council's proposals. The budget must be adopted by the winter session at the latest.

N. 15 In case of credit overruns, supplementary credits must be obtained. Exceptions apply only for urgent, non-deferrable expenditure (→ Art. 34 Financial Budget Act). Subsequent approval by the Federal Assembly is nevertheless required even then.

N. 16 The state accounts are typically dealt with in the summer session of the following year. Their approval has primarily political significance but can trigger liability procedures in cases of gross violations (→ Art. 14 Liability Act).

Art. 167 Cst. as an organisational provision on the budgetary rights of the Federal Assembly is rarely the subject of supreme court case law. The available decisions mainly deal with analogous budgetary competences at cantonal and municipal level, although the principles developed thereby are also relevant for the federal level.

#Budget decisions and expenditure competences

BGE 95 I 531 of 15 October 1969
In this cantonal financial referendum, the Federal Supreme Court developed the principles on the relationship between budget decisions and expenditure decisions.
The legal significance of budget decisions varies depending on the situation: they primarily contain a presentation of expected revenue and expenditure, but may also include substantive expenditure decisions.

«Der Beschluss des Grossen Rates, die geforderten Mietzinsen ins Budget aufzunehmen, stellt somit - wenigstens soweit es die erstmalige Bewilligung angeht - einen echten Ausgabenbeschluss [...] dar.»

This case law on the dual nature of budget decisions is transferable to Art. 167 Cst.: by establishing the budget, the Federal Assembly not only decides on an overview of planned finances, but also on substantive expenditure by the Confederation.

#Separation of powers in financial matters

The sparse case law on Art. 167 Cst. confirms the constitutional basic division of financial competences. The Federal Supreme Court respects the financial sovereignty of the Federal Assembly enshrined in Art. 167 Cst. and reviews this only with restraint.

The parliamentary debate of 2 November 2009 (FDPIC recommendation on additional documentation for the 2010 budget) emphasised that «the financial power lies with the Federal Assembly» and that the budget is ultimately adopted by parliamentary resolution.

#Lack of extensive case law

The small number of BGE decisions on Art. 167 Cst. reflects the political nature of budgetary competences. Disputes over expenditure decisions, budgets and financial statements are typically fought out in the political process of the Federal Assembly and not before the courts.

This corresponds to the institutional logic of the principle of separation of powers: the judiciary restrains itself in controlling parliamentary financial decisions as long as these take place within the framework of constitutional competences.

#Conclusions

The available case law confirms Art. 167 Cst. as a central element of parliamentary budget sovereignty. The courts recognise the comprehensive competence of the Federal Assembly over expenditure, budgets and financial statements and only intervene in cases of obvious constitutional violations. The practical implementation of these competences is subject to the political discretion of the Federal Assembly.