Doctrine

#1. Legislative History

N. 1 The current version of Art. 175 Cst. dates back to the total revision of the Federal Constitution of 1999. The provision largely corresponds in substance to the former Art. 95 and 96 aFCst. of 1874. The most significant material change already occurred in 1993 with the abolition of the so-called «cantonal clause» (BBl 1993 IV 554). This prohibited more than one member of the Federal Council from originating from the same canton.

N. 2 The Message on the new Federal Constitution of 20 November 1996 (BBl 1997 I 1) emphasized that the updating of the Federal Constitution was primarily of a formal nature. With Art. 175 Cst., the existing legal situation was adopted, with the 1993 decision to make regional representation more flexible being incorporated into para. 4. The strict cantonal clause was replaced by the requirement to «take account of appropriate representation of the regions of the country and the language regions» during the election.

#2. Systematic Classification

N. 3 Art. 175 Cst. stands at the beginning of the 3rd section «Federal Council and Federal Administration» in the 5th chapter on federal authorities. The provision regulates the basic composition of the executive and is systematically closely linked with:

• → Art. 176 Cst. (presidency)
• → Art. 177 Cst. (principle of collegiality and departments)
• → Art. 168 Cst. (electoral competence of the Federal Assembly)
• → Art. 157 Cst. (United Federal Assembly)

N. 4 The eligibility requirement in para. 3 refers to → Art. 143 Cst. (eligibility for the National Council). This represents a minimum requirement: active voting and electoral rights at federal level (→ Art. 136 Cst.). The connection shows the democratic legitimation of the executive by parliament.

#3. Elements of the Offence / Normative Content

#a) Seven-member college (para. 1)

N. 5 The number of seven Federal Council members has remained unchanged since 1848. It represents a constitutive element of the Swiss governmental system (Ehrenzeller/Schindler/Schweizer/Vallender, St. Galler Kommentar BV, 4th ed. 2023, Art. 175 N. 6). This specification can only be changed through constitutional revision.

N. 6 The number seven enables the formation of majorities without deadlock situations and simultaneously ensures broad representation of various political forces and regions of the country (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1654).

#b) Time of election and competence (para. 2)

N. 7 The Federal Assembly elects the Federal Council members «after each general renewal of the National Council». This means every four years in December after the National Council elections. The provision establishes the system of general renewal elections as opposed to individual replacement elections in case of premature departure of a member.

N. 8 The electoral competence lies with the United Federal Assembly (→ Art. 157 para. 1 lit. a in conjunction with Art. 168 para. 1 Cst.). The electoral procedure is governed by the Parliament Act (Art. 130 ff. ParlA).

#c) Eligibility requirements (para. 3)

N. 9 All Swiss citizens who are eligible as members of the National Council are eligible. According to Art. 143 Cst., this requires active voting and electoral rights (→ Art. 136 Cst.), which presupposes majority age and absence of grounds for incapacitation.

N. 10 The term of office is four years. Re-election is possible without limitation. There is no term limit (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 3150).

#d) Regional and linguistic representation (para. 4)

N. 11 The Federal Assembly must «take account of appropriate representation of the regions of the country and the language regions» during the election. This formulation has replaced the former strict cantonal clause since 1993.

N. 12 The term «regions of the country» refers to the various geographical regions of Switzerland (German-speaking Switzerland, Romandy, Italian-speaking Switzerland, mountain regions, urban agglomerations). «Language regions» refers to the four national languages (Tschannen/Zimmerli/Müller, Allgemeines Verwaltungsrecht, 4th ed. 2014, § 14 N. 8).

N. 13 The word «appropriate» grants the Federal Assembly considerable discretion. This is a should-provision, not a strict obligation (Ehrenzeller/Schindler/Schweizer/Vallender, St. Galler Kommentar BV, 4th ed. 2023, Art. 175 N. 18).

#4. Legal Consequences

N. 14 The provision is primarily of an organizational law character. It does not establish subjective rights of individuals or cantons to representation in the Federal Council.

N. 15 Non-compliance with the representation provision in para. 4 does not lead to invalidity of an election. The provision is conceived as a political guideline, not as a justiciable legal norm (Waldmann/Belser/Epiney, BSK BV, 2nd ed. 2024, Art. 175 N. 22).

N. 16 Federal Council elections are not subject to judicial review according to BGE 1C_649/2015. Art. 189 para. 4 Cst. excludes appeals against acts of the Federal Assembly before the Federal Supreme Court.

#5. Disputes

N. 17 In doctrine, it is disputed how binding the consideration of regional and linguistic representation is. Part of the doctrine regards para. 4 as a mere political maxim without legal bindingness (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1659). Other authors see it as a legal obligation with discretion (Ehrenzeller/Schindler/Schweizer/Vallender, St. Galler Kommentar BV, 4th ed. 2023, Art. 175 N. 19).

N. 18 The question of gender-specific representation is also controversially discussed. While parliamentary initiative 93.406 («Les deux sexes au Conseil fédéral») failed in 1994, individual voices in doctrine argue that an obligation for appropriate gender distribution can be derived from Art. 8 para. 3 Cst. (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 746). The prevailing doctrine rejects this (Waldmann/Belser/Epiney, BSK BV, 2nd ed. 2024, Art. 175 N. 24).

N. 19 The optimal size of the Federal Council is periodically discussed. Proposals range from five to nine members. Proponents of enlargement argue with increased workload and better representation possibilities (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 3148). Critics fear efficiency losses and a weakening of the collegial principle.

#6. Practical Notes

N. 20 When preparing Federal Council elections, historically developed practice must be observed. Since 1959, the so-called «magic formula» has applied, which provides for a party-political composition according to proportional representation. This is not constitutionally prescribed but shapes political reality.

N. 21 Language-regional representation in practice usually follows the pattern of four to five German-speakers, two Romands and occasionally one Ticino member. There has never been representation of the Romansh language region.

N. 22 For parliamentary practice, the electoral procedure according to Art. 130 ff. ParlA is relevant. The election takes place by secret ballot with absolute majority of those voting. In case of resignations, the timing must be chosen so that an orderly succession election is possible.

N. 23 Parties and parliamentary groups should incorporate the representation requirements early in the candidate search. Balanced regional and linguistic representation increases election chances and strengthens the legitimacy of the body.

Case Law

#Judicial Review of Federal Council Elections

Judgment 1C_649/2015 of 16 December 2015 para. 2 The Federal Supreme Court definitively clarified that Federal Council elections by the United Federal Assembly are not subject to judicial review. The judgment concerns the Federal Council election of 9 December 2015 for the 2016-2019 term of office.

According to Art. 189 para. 4 Cst., acts of the Federal Assembly may not be challenged before the Federal Supreme Court.

«According to Art. 189 para. 4 Cst., apart from the possibility of a statutory exception, acts of the Federal Assembly may not be challenged before the Federal Supreme Court. For the only theoretically possible appeal in public law matters, neither Art. 86 FSCA on prior instances in general nor any other statutory provision such as in particular Art. 88 FSCA on prior instances in voting rights matters, insofar as this could even be considered such a matter, counts the Federal Assembly as a prior instance of the Federal Supreme Court. The Federal Council elections conducted by the United Federal Assembly after the complete renewal of the National Council on 9 December 2015 (cf. Art. 157 para. 1 lit. a, Art. 168 para. 1 and Art. 175 Cst.) may therefore not be challenged before the Federal Supreme Court.»

#Parliamentary Discussions on Composition

#Abolition of the «Cantonal Clause» (1993)

Parliamentary Initiative Schiesser 93.407 of 30 September 1993 The Council of States' State Policy Committee discussed intensively the deletion of the then «cantonal clause» in Art. 96 para. 1 former Cst., which excluded the possibility of electing more than one member of the Federal Council from the same canton. The current formulation in Art. 175 para. 4 Cst. is the result of this discussion.

The committee recognised a need for reform because the absolute cantonal clause inappropriately restricted the freedom of choice of the Federal Assembly.

«The original purpose of the 'cantonal clause' - preventing the dominance of individual large cantons - is still justified. However, this clause is fundamentally not necessary to fulfil this purpose. The Federal Assembly as the electoral authority of the Federal Council will know how to ensure, even without formal prescription, that the Federal Council is not composed only of, for example, representatives from the cantons of Zurich, Bern and Vaud.»

The original strict cantonal clause was replaced by the current more flexible formulation in Art. 175 para. 4 Cst., according to which due consideration must be given to ensuring «that the regions of the country and language communities are appropriately represented».

#Historical Practice of Federal Council Representation

The parliamentary deliberations of 1993 documented that various smaller cantons had never been represented in the Federal Council up to that point, while others had been represented only once. Conversely, despite the theoretical possibility, it had never occurred that seven representatives of large cantons had been elected to the Federal Council.

«Various cantons have never been represented in the Federal Council - these are smaller cantons -, other smaller and medium-sized cantons have been represented only once. Conversely, one can note: Although it would already be possible today to elect seven representatives of large cantons to the Federal Council, this has never been the case to date.»

#Absence of Case Law on Material Requirements

There is no supreme court case law on the concrete interpretation of the requirements of Art. 175 para. 4 Cst. regarding the appropriate representation of the regions of the country and language communities. This is explained by the fact that Federal Council elections are not subject to judicial review according to judgment 1C_649/2015.

Similarly, there is no case law on the interpretation of the eligibility requirements of Art. 175 para. 3 Cst. (eligibility as a member of the National Council) or on the election procedure according to Art. 175 para. 2 Cst. (election by the Federal Assembly after each complete renewal of the National Council).