#1. Legislative History

N. 1 Art. 178 Const. essentially corresponds to former Art. 95 of the old Constitution. The 1999 constitutional revision retained the proven structure of the federal administration, but added in para. 3 the express possibility of transferring administrative tasks to organisations outside the federal administration (BBl 1997 I 1, 432). This addition codified the already existing practice of task outsourcing and created a clear constitutional basis for the various forms of administrative activity by private parties.

N. 2 The Message emphasises that the inclusion of para. 3 takes account of the increasing importance of outsourcing while ensuring their democratic legitimation through the statutory reservation (BBl 1997 I 432). The constitutional legislator thereby sought to enable flexibility in administrative organisation without sacrificing parliamentary control.

#2. Systematic Classification

N. 3 Art. 178 Const. is located in Section 2 of Chapter 5 on the federal authorities and, together with Art. 174–177 Const., forms the constitutional foundation of the executive. The provision concretises the governmental function of the Federal Council anchored in Art. 174 Const. for the area of administrative management.

N. 4 The provision is closely linked to:

• → Art. 164 para. 1 let. g Const. (legislative competence for the organisation of federal authorities)
• → Art. 187 para. 1 let. a Const. (supreme oversight by the Federal Assembly)
• → Art. 146 Const. (state liability)
• → Art. 5 Const. (legality of state action)

N. 5 The Government and Administration Organisation Act (GAOA, SR 172.010) concretises the constitutional provision at the statutory level and regulates the details of administrative organisation, in particular the 4-circle model of the federal administration.

#3. Constituent Elements / Content of the Provision

#Management Function of the Federal Council (para. 1)

N. 6 According to the prevailing doctrine, the term "directs" encompasses both the strategic leadership and the operational control of the federal administration (Sägesser, GAOA-Commentary, 2019, Art. 8 N. 3; Tschannen/Zimmerli/Müller, General Administrative Law, 4th ed. 2014, § 15 N. 8). The Federal Council is thereby bound by the principles of expediency and goal orientation.

N. 7 The "expedient organisation" requires an efficient, economical and effective administrative structure. Häfelin/Haller/Keller/Thurnherr (Swiss Federal Constitutional Law, 10th ed. 2020, N. 1698) emphasise that this grants the Federal Council considerable discretion, which is limited only by express statutory organisational requirements.

#Departmental System (para. 2)

N. 8 The collegial principle of the Federal Council (Art. 177 para. 1 Const.) is complemented by the departmental system. Each of the seven departments is subordinate to a Federal Councillor who is responsible for its management (Ehrenzeller/Schindler/Schweizer/Vallender, St. Gallen Commentary Const., 4th ed. 2023, Art. 178 N. 12).

N. 9 The departmental allocation is made by the Federal Council itself and can be changed at any time. This fundamentally distinguishes the Swiss system from ministerial systems with fixed portfolios (Rhinow/Schefer/Uebersax, Swiss Constitutional Law, 3rd ed. 2016, N. 3456).

#Transfer of Tasks (para. 3)

N. 10 The term "administrative tasks" is to be understood broadly and encompasses all activities of the administration, including sovereign powers (BGE 137 II 409 consideration 7.2). The transfer may be made to organisations under public law (e.g. institutions, intercantonal organisations) or private law (e.g. corporations, associations).

N. 11 The statutory reservation means that every transfer of tasks requires a formal statutory basis. When transferring sovereign powers, particularly in the security sector, heightened requirements apply to the precision of the statutory basis (BGE 148 II 218 consideration 3.3).

#4. Legal Consequences

N. 12 From the Federal Council's management function follows its comprehensive organisational competence within statutory limits. It can create, abolish or restructure administrative units (Art. 8 GAOA).

N. 13 The departmental allocation establishes the management competence of the respective head of department, but not decision-making competence in collegial matters (Art. 177 para. 1 Const.).

N. 14 In the case of task transfer under para. 3, supervision and responsibility remain in principle with the Confederation. The commissioned organisation is functionally integrated into the federal administration and is subject to the Liability Act (Art. 19 LA), provided the statutory basis is sufficient (BGE 148 II 218 consideration 2).

#5. Points of Controversy

N. 15 Scope of transferability: Müller (The Outsourcing of Federal Tasks, 2020, p. 156) takes the view that core tasks of state power (e.g. police power, criminal prosecution) cannot be transferred. Other commentators argue by contrast that a transfer of sovereign tasks is also permissible, provided the statutory basis is sufficiently precise.

N. 16 Implicit decision-making competences: The Federal Supreme Court decided in BGE 137 II 409 consideration 7 that the transfer of tasks can implicitly include the decision-making competences necessary for their fulfilment. Tschannen (Constitutional Law of the Swiss Confederation, 5th ed. 2021, § 41 N. 18) criticises this as too far-reaching and calls for explicit statutory regulation of decision-making powers.

N. 17 Democratic legitimation: Ehrenzeller/Schindler (St. Gallen Commentary Const., Art. 178 N. 28) emphasise the necessity of sufficient democratic legitimation in the transfer of tasks. Sägesser (Selected Legal Issues on Outsourcing, ZBl 2019, 234) considers parliamentary supreme oversight as sufficient legitimation.

#6. Practical Guidelines

N. 18 When examining a task transfer, the affiliation of the commissioned organisation to the federal administration under the 4-circle model must first be clarified. The delimitation is made according to typological criteria such as legal form, type of task and control possibilities (BVGE 2015/43 consideration 6.2–6.4).

N. 19 The statutory basis must regulate at minimum: the type and scope of the transferred tasks, supervisory instruments, financing and any sovereign powers. For security tasks, the powers to apply direct coercion must additionally be explicitly regulated.

N. 20 For liability the following applies: If there is a sufficient statutory basis, the commissioned organisation is liable under Art. 19 LA. If this is lacking, the Confederation remains the direct liability subject (BGE 148 II 218 consideration 2). The contractual transfer of liability to private parties is only possible within the framework of the LA.

#Transfer of Administrative Tasks (para. 3)

BGE 137 II 409 E. 7 (3 October 2011)
The Federal Supreme Court establishes the constitutional requirements for the transfer of administrative tasks pursuant to Art. 178 para. 3 FC.
Fundamental clarification of the criteria for the delegation of administrative tasks to organisations outside the federal administration and their decision-making powers.

«Criteria contained in Art. 178 para. 3 FC 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. The delegation of tâches publiques à un organisme extérieur à l'administration peut comprendre implicitement le pouvoir décisionnel nécessaire à l'accomplissement desdites tâches, pour autant qu'une loi spéciale ne l'exclue pas. Il y a toutefois lieu de préciser que la délégation de tâches publiques à un organisme extérieur à l'administration n'inclut pas automatiquement le transfert implicite d'une compétence décisionnelle.»

BGE 138 I 196 E. 4 (3 May 2012)
The Federal Supreme Court sets high requirements for the legal basis for the transfer of state tasks to private organisations.
Confirmation of the principle of legality in the outsourcing of state tasks with emphasis on the separation of powers.

«Since the sworn translators do not form part of the Geneva state administration, the outsourcing of state tasks to them requires a basis in formal law. The RTJ/GE can rely neither on cantonal law nor directly on Arts. 101, 119 or Art. 125 Constitution of Geneva or on corresponding constitutional customary law and therefore lacks the required legal or constitutional basis in violation of the separation of powers principle.»

BGE 148 II 218 E. 3.3 (2021)
The Federal Supreme Court specifies the special requirements for the transfer of security police tasks to private parties.
Tightening of requirements for a formal legal basis in security tasks.

«An entrustment with public law tasks of the Confederation within the meaning of Art. 19 APA is subject to statutory reservation under Art. 178 para. 3 FC. Particularly high requirements for a formal legal basis are to be imposed in the area of transfer of security police tasks. Neither the AsylA nor the BWIS contains a sufficient legal basis for the transfer of security police tasks to Securitas AG in question here.»

#Administrative Organisation and Departmental System (paras. 1-2)

BGE 148 II 92 E. 5.1 (22 October 2021)
The Federal Supreme Court classifies the Federal Arbitration Commission as part of the decentralised federal administration.
Distinction between central and decentralised federal administration and their subordination to the FOIA.

«The Federal Arbitration Commission for the Exploitation of Copyrights and Related Rights (Arbitration Commission) belongs as an extra-parliamentary commission to the decentralised federal administration and thus falls within the personal scope of application of the FOIA. The Arbitration Commission is an extra-parliamentary commission created by federal law and subordinated to the Federal Council and thus, according to the view represented here, an administrative unit of the decentralised federal administration.»

#Liability and State Responsibility

BGE 148 II 218 E. 2 (2021)
The Federal Supreme Court clarifies the liability relationships in cases of inadequately delegated tasks.
In the absence of sufficient legal basis, direct liability remains with the Confederation.

«The Confederation is liable for damage unlawfully caused by its organs in the exercise of official activities (Art. 146 FC). The Government Liability Act concretises this constitutional principle. It also applies to all other persons insofar as they are directly entrusted with public law tasks of the Confederation. In this situation, the Confederation remains the direct subject of liability for potential liability claims.»

#Federal Jurisdiction and Delimitation of Competences

Judgment 2C_484/2010 of 29 June 2012 E. 2.3
The Federal Supreme Court clarifies the scope of the Federal Council's organisational competences in relation to the departments.
Specification of the Federal Council's management tasks vis-à-vis the federal administration.

Judgment 2C_39/2018 of 18 June 2019 E. 4.2
The Federal Supreme Court addresses questions concerning the decentralised federal administration and its control.
Distinction between central and decentralised administration within the framework of the GOAS.