1The Federal Assembly elects the members of the Federal Council, the Federal Chancellor, the judges of the Federal Supreme Court and, in times of war, the Commander-in-Chief of the armed forces ("the General").
2The law may authorise the Federal Assembly to make or confirm other appointments.
Art. 168 FC — Overview
Art. 168 FC regulates one of the most important tasks of Parliament: the election of the highest federal officials. The Federal Assembly (National Council and Council of States together) elects four groups of persons: all seven Federal Councillors, the Federal Chancellor, all judges of the Federal Supreme Court, and the General of the Army.
This electoral power makes Parliament the democratic link between the people and the highest state organs. While the people elect the members of Parliament, Parliament in turn elects the government and the highest judges. Additionally, the law may confer further electoral tasks on Parliament.
Persons affected: All candidates for the aforementioned offices as well as already elected office holders in re-elections. The electorate consists of the 246 members of both parliamentary chambers.
Legal consequences: The election has constitutive effect (it establishes the office). Elected persons must in principle accept the office. The election requires an absolute majority of valid votes. Parliament's electoral acts cannot be challenged before the courts, but must comply with rule-of-law principles.
Practical example: In the 2024 Federal Presidential election, all seven Federal Councillors stood for re-election. Parliament elected them individually by secret ballot. Viola Amherd received 158 of 245 votes for the Federal Presidency and thus became Federal President for 2024.
The electoral procedures follow centuries-old traditions: For Federal Council elections, there are as many rounds of voting as necessary. Federal judges are normally elected for six years. The General is only elected when on active service.
Art. 168 Cst. — Doctrine
#1. Legislative history
N. 1 The current version of Art. 168 Cst. was created as part of the total revision of the Federal Constitution in 1999. The provision consolidates the various election competences of the Federal Assembly, which were previously scattered across different constitutional provisions, into a single article (BBl 1997 I 1, 415). The election of Federal Councillors was already enshrined in the Federal Constitution of 1848 (Art. 84 old Cst.), as were the election of the Federal Chancellor (Art. 103 old Cst.) and federal judges (Art. 107 old Cst.). The competence for the election of a general existed since the constitutional revision of 1874 (Art. 204 old Cst.).
N. 2 The Federal Council's message on the new Federal Constitution of 20 November 1996 emphasises that Art. 168 Cst. was not intended to bring about material changes: «The provision consolidates the currently scattered election powers of the Federal Assembly» (BBl 1997 I 415). The authorization in para. 2 to transfer additional election competences by law corresponds to existing practice and ensures that the Federal Assembly can respond flexibly to new needs without requiring a constitutional amendment.
#2. Systematic classification
N. 3 Art. 168 Cst. is placed in the 3rd section of the 5th chapter «Federal Assembly» under the title «Powers». The norm is closely systematically connected to the other competence norms of the Federal Assembly, particularly with Art. 163 Cst. (legislation), Art. 166 Cst. (foreign relations), Art. 167 Cst. (finances) and Art. 169 Cst. (high-level supervision). Election competence is, alongside legislation, one of the central functions of parliament and an expression of its democratic legitimation function (Ehrenzeller/Schindler/Schweizer/Vallender, SGK BV, 4th ed. 2023, Art. 168 N. 3).
N. 4 The norm must be read in the context of the separation of powers (→ Art. 144 Cst.) and the principle of democracy (→ Art. 137 Cst.). While federal judges are elected directly by parliament, cantonal judges are elected through other mechanisms (→ Art. 191c Cst.). The election competence of the Federal Assembly must also be distinguished from the people's election competence for the National Council and Council of States (→ Art. 149, 150 Cst.) as well as from the Federal Council's appointment competences (→ Art. 187 para. 1 lit. b Cst.).
#3. Elements of the provision / Content of the norm
#3.1 Paragraph 1: Mandatory election competences
N. 5 According to para. 1, the Federal Assembly elects four categories of office holders:
- The members of the Federal Council: All seven Federal Councillors are elected individually by the United Federal Assembly (Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, 10th ed. 2020, N. 1532).
- The Federal Chancellor: As chief of staff of the federal administration and «eighth member» of the Federal Council (Art. 179 Cst.).
- The judges of the Federal Supreme Court: All ordinary and part-time federal judges (→ Art. 188 Cst.).
- The General: As commander-in-chief of the army in case of active service (→ Art. 58 para. 2 Cst.).
N. 6 The term «elects» encompasses both initial election and re-election. According to the practice of the Federal Assembly, Federal Council elections are for an indefinite period, while federal judges are elected for a term of six years (Art. 145 Cst.). The election of a general occurs only for the duration of active service (Rhinow/Schefer/Uebersax, Verfassungsrecht, 3rd ed. 2016, N. 2956).
#3.2 Paragraph 2: Optional election competences
N. 7 The delegation norm in para. 2 enables the legislator to transfer additional elections to the Federal Assembly or to have elections confirmed by the Federal Assembly. The word «authorise» makes clear that this is a discretionary provision – the legislator is not obliged to create additional election competences (Waldmann/Belser/Epiney, BSK BV, 2nd ed. 2024, Art. 168 N. 8).
N. 8 Based on this authorization, the legislator has transferred the following additional election competences to the Federal Assembly:
- Election of the Attorney General and deputy attorneys general (Art. 20 para. 2 CCP)
- Election of judges of the Federal Administrative Court (Art. 5 ACPA)
- Election of judges of the Federal Criminal Court (Art. 42 CCJA)
- Election of judges of the Federal Patent Court (Art. 9 PatCA)
#4. Legal consequences
N. 9 The election acts of the Federal Assembly are of a constitutive nature – only through election do the elected persons acquire their office. Election takes place by the United Federal Assembly (both chambers together), whereby an absolute majority of valid votes is required for election (Art. 160 ParlA). The elected persons are obliged to accept the election unless important reasons stand in the way (Art. 162 ParlA).
N. 10 The election acts of the Federal Assembly are not subject to judicial review (→ Art. 189 para. 4 Cst.). This does not mean, however, that they are unbound by the rule of law. Parliament is bound by the constitution when exercising its election competence, particularly by fundamental rights (→ Art. 35 Cst.) and procedural guarantees (→ Art. 29 Cst.). An opinion by the Judicial Committee of 28 January 2008 (VPB 2008.26) qualifies elections as acts of applying law, which underscores the binding nature of rule-of-law principles.
N. 11 The term of office and the possibility of re-election are regulated differently: Federal Councillors are elected for an indefinite period and can only leave office through resignation or death. Federal judges are elected for six years with the possibility of re-election (Art. 145 Cst.). Non-re-election of a federal judge is factually equivalent to removal from office and is accordingly subject to strict procedural requirements (Müller/Schefer, Grundrechte, 4th ed. 2008, p. 985).
#5. Controversies
N. 12 In legal doctrine, the legal nature of parliamentary election acts is disputed. While part of the doctrine qualifies them as political acts that are not subject to legal constraints (such as Aubert/Mahon, Petit commentaire, Art. 168 N. 4), more recent doctrine takes the view that they are acts of applying law that are subject to rule-of-law constraints (Tschannen/Zimmerli/Müller, Allgemeines Verwaltungsrecht, 4th ed. 2014, § 31 N. 22; likewise Kiener/Kälin/Wyttenbach, Grundrechte, 3rd ed. 2018, § 23 N. 45).
N. 13 The scope of procedural guarantees in parliamentary elections is also controversially discussed. While it is undisputed that certain minimum guarantees must apply in cases of non-re-election (right to be heard, reasoning), it is disputed whether the full spectrum of Art. 29 Cst. applies. The Federal Supreme Court has not yet made a final pronouncement on this question. The practice of the Judicial Committee tends towards an extensive application of procedural guarantees (Graf/Theler/von Wyss, Parlamentsrecht, 2014, § 15 N. 124).
N. 14 Another point of contention concerns the criteria for judicial election. While political representativeness traditionally plays an important role (party proportionality), parts of the doctrine demand greater weighting of professional qualification (Kiener, Die Unabhängigkeit der Richterinnen und Richter, 2001, pp. 234 ff.). The postulate of the Judicial Committee 21.3028 «Strengthening judicial independence» has relaunched this debate. The prevailing doctrine recognises, however, that political criteria in judicial election are permissible as long as professional suitability is ensured (Seiler, Gewaltenteilung, 2nd ed. 2022, p. 445).
#6. Practical guidance
N. 15 The preparation of elections is usually carried out by parliamentary committees. The Judicial Committee is responsible for judicial elections (Art. 40a ParlA), while preparation for Federal Council elections occurs informally through the parliamentary groups. Election proposals must take account of the requirements for appropriate representation of official languages (→ Art. 70 Cst.) and regions (→ Art. 175 para. 4 Cst.).
N. 16 In case of vacancies, replacement elections must be held «without delay» (Art. 165 ParlA). In practice, this usually means at the next ordinary session. For Federal Council vacancies, the practice has been established that at least three weeks should elapse between resignation announcement and election to allow for appropriate candidate search.
N. 17 The election procedures follow established traditions: For Federal Council elections, as many ballots as necessary are held until a candidate achieves an absolute majority. From the third ballot onwards, the candidate with the fewest votes is eliminated. For judicial elections, global elections usually take place unless individual elections are requested (Art. 160 para. 2 ParlA).
N. 18 Incompatibilities must be examined before election. Members of the Federal Assembly cannot simultaneously be Federal Councillors, Federal Chancellors or federal judges (→ Art. 144 Cst.). Further incompatibilities arise from the respective organizational acts. The Judicial Committee systematically examines possible conflicts of interest and incompatibilities in judicial candidates.
Art. 168 Federal Constitution — Case Law
#Paragraph 1: Electoral Jurisdiction of the Federal Assembly
#Legal Nature of Parliamentary Electoral Acts
The legal nature of electoral acts by the United Federal Assembly is not definitively clarified in case law and doctrine. A landmark opinion by the Judicial Commission of the United Federal Assembly of 28 January 2008 establishes that the re-election or non-re-election of federal judges are to be classified as acts of legal application. The opinion clarifies:
«The legal nature of the election of judges by the United Federal Assembly is not clarified in doctrine and case law. However, there are significant indications for qualifying corresponding acts as acts of legal application. [...] Because the election and especially the re-election or non-re-election constitutes in substance an act of legal application, the fundamental procedural guarantees of Art. 29 Federal Constitution are decisive in proceedings before the Judicial Commission and before the United Federal Assembly.»
The practical relevance of this qualification lies in the fact that parliamentary electoral acts are subject to constitutional procedural guarantees.
#Election of Federal Judges
VPB 2008.26 (2008-09-03) Date: 3 September 2008 Key Finding: Procedural guarantees for the non-re-election of federal judges correspond to those of removal proceedings. Relevance: Fundamental clarification of procedural requirements for parliamentary judicial elections.
The opinion deals extensively with procedural requirements for renewal elections of federal judges:
«A non-re-election is comparable in effect to a removal from office and like the latter is ambivalent under the rule of law. The renewal election procedure with a possible non-re-election must therefore be aligned as closely as possible with removal proceedings.»
#Procedural Law Aspects
RR.2021.116 (2022-09-14) Date: 14 September 2022 Key Finding: The Administrative Commission of the Federal Administrative Court has jurisdiction for rulings on the employment relationship of judges. Relevance: Delineation of jurisdictions between parliamentary level and court administration.
The Federal Criminal Court establishes:
«According to Art. 18 para. 4 lit. b of the Federal Act on the Federal Administrative Court (Administrative Court Act, VGG; SR 173.32), the Administrative Commission of the Federal Administrative Court has jurisdiction for issuing rulings on the employment relationship of judges, insofar as the law does not designate another authority as competent.»
#Federal Council Election Procedure
The election of the Federal Council by the United Federal Assembly takes place in traditionally established procedures. Historical protocols show the practical implementation:
20012202 (1983-12-07) Date: 7 December 1983 Key Finding: Documentation of the Federal President election for 1984 with detailed vote counting. Relevance: Example of the practical implementation of elections according to Art. 168 para. 1 Federal Constitution.
«Es wird gewählt / Est élu Herr Bundesrat Schlumpt mit 187 Stimmen (Beifall) Ferner haben Stimmen erhalten / Ont obtenu des voix: Herr Stich 15»
#Election of the Federal Chancellor
The Federal Chancellor election as another jurisdiction of the Federal Assembly under Art. 168 para. 1 Federal Constitution is less documented procedurally, but follows the same principles as other parliamentary elections.
#Election of the General
The election of the General represents a special jurisdiction of the Federal Assembly that only becomes relevant in case of active service. Corresponding case law is naturally scarce.
#Paragraph 2: Authorisation for Further Elections
#Legal Authorisations
Art. 168 para. 2 Federal Constitution authorises the law to transfer or confirm further elections to the Federal Assembly. This provision finds practical application in various areas:
A-3612/2019 (2019-07-29) Date: 29 July 2019 Key Finding: The Federal Prosecutor's Office is subject to election by the United Federal Assembly according to legal authorisation. Relevance: Concrete application of Art. 168 para. 2 Federal Constitution for elections outside the explicitly mentioned offices.
The Federal Administrative Court states:
«An exception regarding the area of law does not exist (Art. 32 VGG e contrario). Furthermore, the appeal against rulings of the AB-BA in the area of members of the Federal Prosecutor's Office elected by the United Federal Assembly, which includes the Federal Prosecutor (Art. 20 para. 1 StPO), is admissible.»
#Further Electoral Jurisdictions
Based on Art. 168 para. 2 Federal Constitution, legislation has transferred additional electoral competencies to the Federal Assembly, in particular:
- Election of members of the Federal Prosecutor's Office
- Election of judges of first-instance federal courts
- Confirmation of further office holders according to special legal provisions
#Procedural Law Principles
The already mentioned opinion VPB 2008.26 establishes that the same rule of law principles apply to all elections under Art. 168 Federal Constitution:
«The provisions governing the procedure of the Judicial Commission are found in the Parliament Act. As state organs, the Federal Assembly and the Judicial Commission are bound by fundamental rights and must observe the general procedural guarantees and the material fundamental rights guarantees of the Constitution in removal proceedings.»
#Further Relevant Case Law
#Electoral Procedures and Democratic Legitimation
BGE 140 I 394 (2014-01-01) Date: 1 January 2014 Key Finding: The principle of electoral equality from Art. 34 Federal Constitution is to be continuously developed since the constitutional guarantee. Relevance: Fundamental requirements for electoral procedures that are also relevant for parliamentary elections.
«The principle of electoral equality flowing from Art. 34 Federal Constitution has been further developed since the guarantee of the Constitution of the Canton of Appenzell A.Rh. by the Federal Assembly in 1996. This development must be taken into account.»
#Parliamentary Immunity in Electoral Context
JAAC 69.2 (2003-12-19) Date: 19 December 2003 Key Finding: The immunity rules of the Parliament Act apply to all parliamentary activities. Relevance: Legal framework for the exercise of parliamentary electoral powers.
«Art. 16 ParlG repeats the regulation of Art. 162 para. 1 Federal Constitution on absolute immunity. Before the Parliament Act came into force, the regulations on relative immunity (criminal prosecution privileges) were found on the one hand in the Federal Act of 26 March 1934 on political and police guarantees.»
#Control Mechanisms
Case law shows that parliamentary electoral acts are generally withdrawn from judicial control (Art. 189 para. 4 Federal Constitution), but must be subject to constitutional procedural guarantees. This creates a field of tension between democratic legitimation and rule of law requirements, which is resolved in practice through transparent procedures and constitutionally compliant design of electoral processes.