The Federal Council is the supreme governing and executive authority of the Confederation.
#Overview
Art. 174 Cst. defines the Federal Council as the supreme governing and executive authority of the Confederation. This provision gives the seven-member Federal Council a dual function: It is both government and supreme administrative authority (BGE 129 II 193 E. 4.1).
As governing authority, the Federal Council determines the political direction of the country. It plans legislation, conducts foreign policy and makes important decisions for governing the state (BBl 1997 I 1, 432). As executive authority, it implements federal legislation, issues ordinances and heads the federal administration with its approximately 38,000 employees.
The designation as «supreme» authority means that the Federal Council holds the highest position within the executive. Only the Federal Assembly as supreme authority of the Confederation stands above it. This leading position has important legal consequences: Decisions of the Federal Council as a whole cannot in principle be challenged before the courts (BGE 129 II 193 E. 2.1). An exception exists only for personnel decisions, where the law expressly provides for this.
An example of the practical significance: If the Federal Council decides on an entry ban against a specific person for security reasons, this person cannot sue before the Federal Court against this decision. It is different if a department (ministry) imposes an entry ban on behalf of the Federal Council – then legal recourse is available (BGE 129 II 193 E. 4.2.2).
This constitutional position makes the Federal Council the most powerful executive authority in Switzerland, but at the same time also an authority with limited judicial control.
#Doctrine
#1. Legislative History
N. 1 Art. 174 BV continues the fundamental formulation of the Federal Constitution of 1874 (Art. 95 old Const.). The total revision of 1999 retained unchanged the position of the Federal Council as the supreme governing and executive authority of the Confederation (BBl 1997 I 1, 432). The constituent power thereby sought to affirm the proven dual function of the Federal Council as a collegial government and supreme administrative authority.
N. 2 The historical continuity is evident in the practically verbatim adoption of the formulation. Even the Federal Constitution of 1848 designated the Federal Council as the «supreme executive and governing authority» (Art. 90 FC 1848). This consistency underscores the central role of the Federal Council in the Swiss state structure since the founding of the federal state.
#2. Systematic Classification
N. 3 Art. 174 BV stands at the beginning of Section 3 on the Federal Council and the Federal Administration (Arts. 174–179 BV). The norm defines the fundamental position of the Federal Council within the constitutional structure and forms the basis for the subsequent provisions on composition (Art. 175 BV), election (Art. 176 BV), the collegiate principle (Art. 177 BV) and organisation of the Federal Administration (Art. 178 BV).
N. 4 In the context of the separation of powers, Art. 174 BV must be read together with Art. 143 BV (Federal Assembly as supreme authority) and Art. 188 BV (position of the Federal Court). These three norms define the supreme federal authorities and their fundamental functions. The formulation «supreme» authority does not mean superiority over the other powers, but rather the apex position within the executive.
#3. Elements of the Offence / Normative Content
N. 5 «Supreme»: The term designates the hierarchical apex position within the executive power. The Federal Council stands above all other administrative authorities of the Confederation. This excludes an appeal to a hierarchically superior authority (BGE 129 II 193 E. 4.1).
N. 6 «Governing»: The governing function comprises political leadership (governmental function) and strategic control of the Federal Administration. The Federal Council determines the goals and means of government policy (→ Art. 180 BV) and governs the Federal Administration (→ Art. 178 para. 1 BV). This governing function manifests itself particularly in legislative planning, financial planning and foreign policy leadership.
N. 7 «Executive»: As an executive authority, the Federal Council executes federal laws and international treaties. This executive function includes the enactment of ordinances (→ Art. 182 BV), individual case decisions as well as the operational management of the Federal Administration. The term «executive» is to be understood broadly and encompasses all activities of the executive.
N. 8 «Authority of the Confederation»: The Federal Council is a constitutional organ of the Confederation, not of the cantons. Its competences are limited to federal tasks. The federalist allocation of competences (→ Art. 3 BV, → Art. 42 BV) limits its sphere of action.
#4. Legal Consequences
N. 9 The constitutional position as supreme executive authority has several legal consequences:
N. 10 Lack of Justiciability: Decisions of the Federal Council as a collegial authority are in principle not challengeable by administrative court appeal to the Federal Court (BGE 129 II 193 E. 2.1). An exception exists only for Federal Council rulings in the area of federal personnel law, provided that federal law provides that the Federal Council rules as first instance.
N. 11 Actes de gouvernement: Government acts of the Federal Council in the areas of internal and external security as well as foreign relations are excluded from judicial review (BGE 129 II 193 E. 4.2.2). However, this doctrine of «actes de gouvernement» must be handled restrictively and finds its limit in the protection of fundamental rights (→ Art. 35 BV) and the ECHR.
N. 12 Delegation Possibilities: The Federal Council may transfer decision-making competences to the departments (→ Art. 177 para. 3 BV). Delegation occurs by way of ordinance (Art. 47 para. 2 GOGA). Legal recourse is then available against decisions of the departments (BGE 129 II 193 E. 4.2.2).
#5. Controversial Issues
N. 13 Scope of the Governmental Function: In legal doctrine, it is disputed how far the governmental function of the Federal Council reaches. Häfelin/Haller/Keller/Thurnherr (Federal Constitutional Law, 10th ed. 2020, N 1654) advocate a broad interpretation that encompasses all politically significant decisions. Tschannen/Zimmerli/Müller (General Administrative Law, 4th ed. 2014, § 4 N 12) argue for a narrower interpretation that is limited to the tasks mentioned in Art. 180 BV.
N. 14 Justiciability of Government Acts: The scope of the «actes de gouvernement» doctrine is controversially discussed. Rhinow/Schefer/Uebersax (Constitutional Law, 3rd ed. 2016, N 3127) call for restrictive handling taking into account ECHR guarantees. Müller/Schefer (Fundamental Rights, 4th ed. 2008, p. 987) emphasise that fundamental rights protection must also be guaranteed in government acts.
N. 15 Relationship to the Federal Assembly: The subordination relationship to the Federal Assembly (→ Art. 169 BV) stands in tension with the designation as «supreme» authority. The St. Gallen Commentary (Ehrenzeller/Schindler/Schweizer/Vallender, 4th ed. 2023, Art. 174 N 8) resolves this apparent contradiction by stating that the Federal Council is the supreme authority within the executive, while the Federal Assembly represents the supreme power in the Confederation.
#6. Practice Notes
N. 16 Legal Protection: In the case of Federal Council rulings, it must primarily be examined whether the decision-making competence can be delegated to a department. This opens up legal recourse and ensures the legal protection required under Art. 29a BV and Art. 6 ECHR. Delegation should already be provided for at the legislative level.
N. 17 Freedom of Information Act: The Federal Council was exempted from the scope of application of the Freedom of Information Act in the core area of its action as government (BGE 133 II 209 E. 3.1). This particularly concerns the minutes of Federal Council meetings. However, documents of the departments and federal offices are in principle subject to the publicity principle.
N. 18 Collegial Decisions: Important and politically significant matters must be decided by the entire Federal Council (→ Art. 177 BV). The demarcation between collegial matters and departmental matters is made according to the Rules of Procedure of the Federal Council. In cases of doubt, collegial competence is to be assumed.
#Case Law
#Constitutional Position and Powers
BGE 129 II 193 E. 4.1 (21 February 2003) The Federal Council as the supreme governing and executive authority of the Confederation in entry ban proceedings. The Federal Supreme Court fundamentally defines the dual function of the Federal Council.
«The present case is characterised by the fact that the contested decision was issued by the Federal Council, the supreme governing and executive authority of the Confederation (Art. 174 BV). The Federal Council not only stands at the head of the federal administration (Art. 178 para. 1 and 2 BV) but is also directly entrusted with state governance as a collegial government body (Art. 180 para. 1 BV).»
#Judicial Control of Federal Council Decisions
BGE 129 II 193 E. 2.1 (21 February 2003) Fundamental inadmissibility of administrative court appeals against Federal Council resolutions. The Federal Supreme Court reaffirms the principle immunity of the Federal Council as a collegial authority.
«Decisions of the Federal Council may in principle not be challenged before the Federal Supreme Court by way of administrative court appeal. An exception exists only with regard to Federal Council decisions in the field of employment relationships of federal personnel, insofar as federal law provides that the Federal Council decides as the first instance.»
BGE 133 II 209 E. 3.1 (25 May 2007) Parallel between the Federal Council and Federal Supreme Court regarding the Freedom of Information Act. The Federal Supreme Court presents the constitutional parallelism of the supreme federal authorities.
«The Federal Council was - as the government, i.e. in the core area of its action as the supreme governing and executive authority deciding collegially (Art. 177 para. 1 BV) of the Confederation (Art. 174 BV; Art. 1 of the Government and Administration Organisation Act of 21 March 1997 [GAOA; SR 172.010]) - like the Federal Supreme Court with regard to adjudication - excluded from the scope of application of the Freedom of Information Act.»
#Transfer of Powers and Delegation
BGE 137 II 409 E. 7.1 (3 October 2011) Federal Council as supreme authority in the context of transfer of administrative tasks. The Federal Supreme Court analyses the position of the Federal Council in the delegation of state tasks.
«In tant que fondation de droit privé régie par les art. 80 ss CC, la recourante est une organisation extérieure à l'administration au sens des art. 178 al. 3 Cst. et 2 al. 4 LOGA.»
#State Governance and Separation of Powers
BGE 129 II 193 E. 4.1 (21 February 2003) Federal Council between administrative management and state leadership. The Federal Supreme Court explains the two main tasks of the Federal Council according to Art. 174 BV.
«An appeal to a hierarchically superior authority is thus excluded from the outset. As a body competent to adjudicate - due to its position as the supreme authority of the Confederation subject to the rights of the people and the cantons (Art. 148 para. 1 BV) - only the Federal Assembly itself would be available.»
#Legal Protection and Human Rights
BGE 129 II 193 E. 4.2.2 (21 February 2003) Constitutional limits of Federal Council action. The Federal Supreme Court addresses the areas of tension between state governance and legal protection.
«According to what has been said, it therefore appears constitutionally permissible and, with regard to cases falling within the scope of application of Art. 13 ECHR, even mandatory if the draft of a new Foreign Nationals Act (D-FNA; BBl 2002 p. 3851 ff.) declares the Federal Office of Police competent to issue entry bans (Art. 66 para. 2 D-FNA) and expulsions (Art. 67 para. 1 D-FNA) to safeguard internal and external security.»
#Collegial Principle and Decision-Making
BGE 132 V 6 E. 2 (28 December 2005) Federal Council as appeal instance in the healthcare sector. The Federal Supreme Court confirms the fundamental non-appealability of Federal Council decisions also regarding hospital lists.
«Confirmation of the case law in BGE 126 V 172, according to which the administrative court appeal against a negative appeal decision of the Federal Council concerning a hospital list is inadmissible.»
#Political Responsibility
BGE 129 II 193 E. 4.2.2 (21 February 2003) Acts of government and judicial control. The Federal Supreme Court defines the limits of justiciability of Federal Council resolutions.
«According to this, governmental acts of the Federal Council (so-called "actes de gouvernement"), which include questions of foreign relations and decisions in the areas of internal and external security, should remain excluded from judicial review.»
#Delegation of Office and Administrative Organisation
BGE 129 II 193 E. 4.2.2 (21 February 2003) Delegation possibilities of the Federal Council. The Federal Supreme Court explains the constitutional scope for the transfer of powers.
«Practically undiminished room for a transfer of corresponding decision-making powers to the departments within the meaning of Art. 177 para. 3 BV (cf. regarding the former provision of Art. 103 para. 2 old BV: ALFRED KÖLZ, in: Commentary old BV, marg. no. 12 to Art. 103 para. 2/3 old BV as well as KURT EICHENBERGER, in: Commentary old BV, marg. no. 16 to Art. 102 old BV), whereby the Federal Council may undertake the delegation by way of ordinance (Art. 47 para. 2 GAOA).»