#1. Legislative History

N. 1 The current version of Art. 177 BV dates back to the total revision of the Federal Constitution in 1999. The provision largely corresponds to the former Art. 103 old BV, but introduces in para. 3 an explicit constitutional basis for the delegation of administrative tasks (BBl 1997 I 392). The constitutional legislator thereby wanted to place the delegation already practised under the old Federal Constitution on a clear constitutional basis and simultaneously ensure legal protection in such delegations (BBl 1997 I 394).

#2. Systematic Classification

N. 2 Art. 177 BV stands in Section 3 of Chapter 5 of the Federal Constitution on government and administration. The provision concretises the position of the Federal Council as the supreme governing and executive authority of the Confederation anchored in Art. 174 BV. It is closely connected with:

• → Art. 174 BV (fundamental provision on the Federal Council)
• → Art. 178 BV (Federal Administration)
• → Art. 180 BV (government policy)
• → Art. 184 BV (foreign relations)
• → Art. 185 BV (external and internal security)

N. 3 The collegial principle anchored in para. 1 is a structural principle of the Swiss governmental organisation and fundamentally distinguishes the Swiss system from presidential or parliamentary governmental systems (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1652).

#3. Elements of the Offence / Normative Content

#a) Collegial Principle (Para. 1)

N. 4 The collegial principle states that the Federal Council makes its decisions as a collective body and not through individual members. This comprises three aspects (Ehrenzeller/Schindler/Schweizer/Vallender, St. Galler Kommentar BV, 4th ed. 2023, Art. 177 N 3):

• Collegial decision-making: All important matters are deliberated jointly
• Majority principle: Decisions are made by majority vote
• Solidarity principle: Members represent collegial decisions uniformly to the outside

N. 5 The scope of the collegial principle is disputed in doctrine. While Tschannen/Zimmerli/Müller (Allgemeines Verwaltungsrecht, 4th ed. 2014, § 15 N 12) advocate a strict interpretation according to which all decisions of considerable significance must be submitted to the entire Federal Council, Sägesser argues for a pragmatic handling that takes account of the efficiency requirements of modern state activity.

#b) Departmental Principle (Para. 2)

N. 6 The departmental principle assigns each Federal Councillor the leadership of a department. The departments are responsible for preparing Federal Council business and implementing Federal Council resolutions. This dual function – preparation and implementation – characterises the position of the departments in the governmental system (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3422).

N. 7 The allocation of departments follows the seniority principle, but is not constitutionally regulated. The departmental allocation represents a political act that is not justiciable (BGE 129 II 193 E. 4.1).

#c) Delegation of Business (Para. 3)

N. 8 Para. 3 enables the delegation of business for independent handling to departments or subordinate administrative units. The provision distinguishes between:

• Delegation to departments (first level)
• Delegation to subordinate administrative units (second level)

N. 9 The scope of permissible delegations is disputed. Häfelin/Haller/Keller/Thurnherr (op. cit., N 1681) advocate a restrictive interpretation and require a special legal basis for each delegation. In contrast, the prevailing doctrine (Ehrenzeller et al., op. cit., Art. 177 N 18; Sägesser, op. cit., Art. 177 N 15) considers delegation based directly on Art. 177 para. 3 BV as permissible, provided that no business of fundamental political significance is concerned.

#4. Legal Consequences

N. 10 From the collegial principle it follows that individual decisions by Federal Councillors without authorisation are null and void. Departments can only act within the scope of the competences transferred to them. Violations of the collegial principle can be challenged by appeal, provided the appellant is affected in their own rights.

N. 11 In the case of delegations, legal protection must be ensured according to para. 3. This means concretely:

• Rulings of delegated bodies must be challengeable
• The appeal procedure must remain guaranteed
• The guarantee of legal remedies according to → Art. 29a BV applies without restriction

#5. Disputes

N. 12 Scope of delegation authority: It is disputed which business the Federal Council may delegate. Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, p. 842) maintain that only administrative routine business may be delegated. Tschannen (Die Beziehungen zwischen Bundesrat und Bundesverwaltung, ZBl 2003, p. 537) argues for more extensive delegation possibilities with clear legal requirements. Practice shows an extensive handling of delegation possibilities.

N. 13 Sub-delegation: The admissibility of sub-delegation is controversially discussed. While Vogel (in: Ehrenzeller et al., op. cit., Art. 177 N 22) permits sub-delegation only with express legal authorisation, Sägesser (op. cit., Art. 177 N 18) considers further delegation within the administrative hierarchy as implicitly permissible. The Federal Court has not yet conclusively clarified this question (BGE 101 Ib 70 E. 4).

N. 14 Legal protection in delegation: It is unclear what requirements must be placed on legal protection. Waldmann (Bernisches Verwaltungsrecht, 2nd ed. 2019, p. 163) demands complete legal protection with review of all legal and factual questions. Kiener/Rütsche/Kuhn (Öffentliches Verfahrensrecht, 3rd ed. 2021, N 1842) consider limited review on technical questions as sufficient.

#6. Practical Guidelines

N. 15 In applying Art. 177 BV, the following must be observed:

• Business of considerable political significance must be submitted to the entire Federal Council
• The departments carefully prepare the business (co-reporting procedure)
• Delegation decisions must be clearly formulated and precisely describe the scope of transferred competences
• Legal protection must be explicitly regulated in the delegation norm

N. 16 In practice, the following forms of delegation have become established:

• General delegations by ordinance (e.g. organisational ordinances)
• Special delegations for specific subject areas
• Delegations with approval reservation for important decisions
• Right of the Federal Council to reclaim business of fundamental significance

N. 17 The COVID-19 pandemic has highlighted the importance of efficient delegations. The Federal Council has delegated extensive competences to the departments and the FOPH, whereby compliance with legal protection has been partially critically questioned. This shows the necessity of observing the constitutional requirements of Art. 177 para. 3 BV even in crisis situations.

#Collegial Principle of the Federal Council

BGE 129 II 193 E. 4.1 of 21 February 2003
Federal Council decision on entry ban on grounds of safeguarding national interests.
Fundamental decision on the position of the Federal Council as the supreme governing and executive body.

«The Federal Council not only stands at the head of the Federal Administration (Art. 178 para. 1 and 2 FC) but as a government collegium is also directly entrusted with the direction of state affairs (Art. 180 para. 1 FC).»

#Delegation of Federal Council Powers to Departments

BGE 87 IV 29 E. 3 of 12 December 1961
Transfer of legislative powers by the Federal Council to the Federal Department of Home Affairs.
Basic admissibility of subdelegation of powers within certain limits.

«The problem of subdelegation of powers [...] is disputed in legal doctrine and case law, whether subdelegation of legislative powers is generally permissible or permissible in certain cases even without express constitutional regulation.»

BGE 101 Ib 70 E. 4 of 14 February 1975
Delegation of fee regulation powers to the Federal Department of Home Affairs.
Inadmissibility of the specific delegation due to lack of legal basis.

«In legal doctrine and case law it is disputed whether subdelegation of legislative powers is generally permissible or permissible in certain cases even without express constitutional regulation.»

BGE 100 IV 124 E. 2b of 16 October 1974
Referral of federal criminal cases by the Federal Council or a department designated by it to cantonal authorities.
Confirmation of the possibility of delegation for criminal law powers.

«If criminal cases are referred to cantonal judicial authorities by the Federal Council or a department designated by it, then they must not only prosecute them but also adjudicate them.»

#Transfer of Administrative Tasks to External Organisations

BGE 137 II 409 E. 7 of 3 October 2011
Transfer of administrative tasks to social partner organisations pursuant to Art. 178 para. 3 FC.
Clarification of constitutional requirements for the transfer of tasks.

«Art. 178 para. 3 FC contains criteria for the transfer of administrative tasks to organisations that stand outside the Federal Administration [...] as well as conditions under which the latter may issue administrative decisions.»

#Legal Protection in Case of Delegation

BGE 128 IV 219 E. 1.3 of 26 August 2002
Appeal proceedings against decisions of departments in delegated criminal matters.
Restriction of legal remedies for certain delegation decisions.

«If the department, in application of Art. 21 and 73 VStrR, considers the conditions for a custodial sentence or a measure involving deprivation of liberty to be met, this decision cannot be challenged by appeal pursuant to Art. 27 VStrR.»

BGE 133 II 209 E. 2 of 25 May 2007
Access to protocols of the governing bodies of the Federal Supreme Court and application of the Freedom of Information Act.
Relevance for transparency in collegial decisions of authorities.

«Access to official documents of the governing bodies of the Federal Supreme Court is possible under the general conditions of the Federal Act on the Principle of Public Access based on Art. 28 BGG, when an administrative act is under discussion.»