#1. Legislative History

No. 1 Art. 180 Cst. traces back to the constitutional reform of 1999 and consolidates the Federal Council's powers that had previously been scattered across various enactments. The Message on a new Federal Constitution of 20 November 1996 (BBl 1997 I 1 ff., particularly 368 f.) emphasised that the provision was not associated with any substantive innovations, but merely constituted a systematic reorganisation and modernisation.

No. 2 The duty to inform under para. 2 was not expressly enshrined in the old Federal Constitution. According to the Message (BBl 1997 I 369), its inclusion represented an "updating" that raised the Federal Council's already existing practice to the constitutional level. The constitutional legislator thereby sought to enshrine the principle of transparency as a principle of Swiss democracy at the constitutional level.

#2. Systematic Classification

No. 3 Art. 180 Cst. is located in the 3rd section of Title 5 on the federal authorities and regulates the basic features of the Federal Council's governmental activity. The provision is closely connected with:

• → Art. 174 Cst. (supreme governing and executive authority)
• → Art. 178 Cst. (management of the Federal Administration)
• → Art. 181 Cst. (right of initiative)
• → Art. 182 ff. Cst. (specific powers in individual policy areas)

No. 4 For the duty to inform under para. 2, the following are also relevant:

• → Art. 16 Cst. (freedom of information)
• → Art. 17 Cst. (freedom of the media)
• → Art. 34 Cst. (political rights)
• ↔ Art. 10 GOGA (statutory implementation)
• ↔ FoIA (Federal Act on Freedom of Information in the Administration)

#3. Elements of the Offence / Content of the Provision

#a) Paragraph 1: Government Policy and Coordination

No. 5 The determination of the "objectives and instruments of government policy" encompasses the strategic leadership of the state. The Federal Council defines the political priorities, establishes the focal points of the legislature (→ Art. 146 ParlA) and determines the annual objectives. This power is not delegable (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, No. 1824).

No. 6 The planning and coordination function relates to "state activities" as a whole. This covers not only the activities of the Federal Administration (→ Art. 178 Cst.), but also coordination with other branches of government and the cantons. The duty to coordinate is implemented particularly in financial planning (→ Art. 183 Cst.) and legislative planning.

#b) Paragraph 2: Duty to Inform

No. 7 The duty to inform requires "timely and comprehensive" information. "Timely" means that information must be provided while it is still relevant for democratic decision-making (BGE 139 I 114 consid. 3.2). "Comprehensive" requires complete, truthful and objective information without manipulative elements (BGE 142 II 313 consid. 5.3.2).

No. 8 The reservation for "overriding public or private interests" constitutes a limitation that is directly constitutional. Public interests include in particular national and state security (→ Art. 185 Cst.), foreign relations (→ Art. 184 Cst.) and the functioning of the authorities. Private interests concern particularly the protection of personality and business secrets.

#4. Legal Consequences

No. 9 Para. 1 establishes the Federal Council's power and duty for strategic state leadership. The Federal Council can neither delegate this leadership responsibility to the administration nor evade it (Tschannen/Zimmerli/Müller, Allgemeines Verwaltungsrecht, 4th ed. 2014, § 25 No. 7).

No. 10 Para. 2 establishes an objective legal duty for the Federal Council to inform. With the entry into force of the FoIA on 1 July 2006, this was supplemented by a subjective right of access to official documents (BGE 142 II 313 consid. 4.2). The principle of transparency has reversed the former principle of administrative secrecy (Federal Supreme Court judgment 1C_122/2015 consid. 5.1).

#5. Controversies

No. 11 The scope of the duty to inform in the area of security policy is disputed. While Ehrenzeller/Schindler/Schweizer/Vallender (St. Galler Kommentar BV, 4th ed. 2023, Art. 180 No. 12) favour a broad interpretation of secrecy interests, other commentators argue for restrictive application in light of the principle of democracy.

No. 12 The relationship between the constitutional duty to inform and the principle of collegiality (→ Art. 177 para. 1 Cst.) is also controversially discussed. Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, p. 523) see a primacy of transparency, while Rhinow/Schefer/Uebersax (Schweizerisches Verfassungsrecht, 3rd ed. 2016, No. 3166) advocate for case-by-case weighing.

#6. Practice Notes

No. 13 For the enforcement of the right to information, the FoIA procedure is primarily decisive. Legal recourse leads through a mediation procedure before the FDPIC to the Federal Administrative Court and finally to the Federal Supreme Court (→ Art. 10 ff. FoIA).

No. 14 The Federal Council's practice is restrictive regarding politically sensitive information requests. Documents from the co-report procedure are regularly subject to secrecy (→ Art. 8 FoIA). However, the courts apply a strict standard and require concrete balancing of interests in individual cases (BGE 136 II 399 consid. 2).

No. 15 According to case law, enhanced standards of protection apply to the media. The Federal Supreme Court recognises their special function as "watchdog" of democracy and grants them privileged access to official information (BGE 139 I 114 consid. 4).

Case law on Art. 180 Cst. focuses predominantly on para. 2 and the Federal Council's duty to inform derived therefrom. The courts have developed the principle of transparency as a constitutional basis for access to official documents and defined its limits. Regarding para. 1 (government policy and coordination), there is comparatively little case law, as these provisions are primarily of an organisational nature and are rarely the subject of court proceedings.

#Constitutional Basis of the Principle of Transparency

BGE 139 I 114 (26 April 2013) Fee obligation for access to official documents by media professionals. The Federal Supreme Court recognises media freedom as an important aspect of the Federal Council's constitutional duty to inform and develops special protection standards for media professionals regarding access to official documents.

«The media perform a special function in a democratic society by contributing to the free formation of opinion and by controlling state activity as a 'watchdog'. This constitutional function of the media requires them to have effective access to information about state activity.»

BGE 142 II 313 (18 May 2016) Fundamental judgment on the principle of transparency and its constitutional basis in Art. 180 para. 2 Cst. The Federal Supreme Court defines the scope of the Federal Council's duty to inform and develops the test for balancing transparency against secrecy interests.

«The principle of transparency serves the transparency of the administration and is intended to promote citizens' confidence in state institutions and their functioning; it also constitutes an essential prerequisite for meaningful democratic participation in the political decision-making process and for effective control of state authorities.»

#Limits of the Duty to Inform Regarding Foreign Policy Interests

BGE 129 II 193 (21 February 2003) Entry ban against a resident foreigner for reasons of national interests. Although the judgment primarily concerns the entry ban, it also addresses the Federal Council's government leadership under Art. 180 para. 1 Cst. and its competence to safeguard national interests.

«The Federal Council not only stands at the head of the federal administration (Art. 178 paras. 1 and 2 Cst.) but as a governing body is also directly entrusted with government leadership (Art. 180 para. 1 Cst.).»

Judgment 1C_222/2018 (21 March 2019) Access to information on war material export applications. The Federal Supreme Court clarifies the exception for foreign policy interests under Art. 7 para. 1 lit. d FOIA and its relationship to Art. 180 para. 2 Cst.

«Switzerland's foreign policy interests may be impaired if another state could exploit data to be published to Switzerland's detriment. In particular, the current and future negotiating positions of Switzerland should not be weakened by any publication of information.»

#Application of the Principle of Transparency

Judgment 1C_50/2015 (2 December 2015) Access to federal procurement statistics. The judgment clarifies the relationship between the constitutional duty to inform under Art. 180 para. 2 Cst. and special statutory secrecy provisions.

«The relationship between the transparency requirement and special confidentiality rules cannot be determined in general terms, but must be determined case by case. The opposing interests must be weighed in the individual case.»

Judgment 1C_122/2015 (18 May 2016) Access to information from the Federal Tax Administration. The Federal Supreme Court confirms that the principle of transparency is in principle applicable even in sensitive areas such as international administrative assistance, provided that no overriding secrecy interests exist.

«With the entry into force of the Freedom of Information Act on 1 July 2006, the principle of secrecy of administrative activity was reversed in favour of the principle of transparency.»

#Relationship to Other Constitutional Provisions

Judgment 1C_296/2015 (18 May 2016) Parallel to BGE 142 II 313, this judgment deals with the interaction between Art. 180 para. 2 Cst., media freedom (Art. 17 Cst.) and freedom of information (Art. 16 Cst.). It shows how these fundamental rights reinforce the Federal Council's duty to inform.

«The principle of transparency constitutes an essential prerequisite for meaningful democratic participation in the political decision-making process and for effective control of state authorities.»

#Recent Developments in the Area of the Duty to Inform

Judgment A-6755/2016 of the Federal Administrative Court (23 October 2017) Application of the principle of transparency in complex cases. The judgment shows the practical implementation of the constitutional requirements of Art. 180 para. 2 Cst. by the administrative courts.

«The Freedom of Information Act gives concrete form to the Federal Council's constitutional duty to inform and creates a subjective right of access to official documents.»

Judgment A-2565/2020 of the Federal Administrative Court (17 January 2022) Recent case law on the application of the principle of transparency shows the continuous development of practice in the area of Art. 180 para. 2 Cst. and its legislative implementation through the FOIA.

«In balancing interests between transparency and secrecy, the constitutional foundations of Art. 180 para. 2 Cst. are decisive, which in principle provide for comprehensive information to the public.»