Art. 181 BV — Doctrine

#1. Legislative History

N. 1 Art. 181 BV codifies the Federal Council's traditional right of initiative in the legislative process. The provision corresponds in substance to former Art. 101 old BV and was adopted in the 1999 total revision without substantial changes (BBl 1997 I 1, 460). The message on the new Federal Constitution stated: «The Federal Council performs the tasks assigned to it by the Constitution and the law on its own responsibility. As a collegiate body, it makes its decisions jointly» (BBl 1997 I 460).

N. 2 The Federal Council's right of initiative has its roots in the 1848 Constitution, which already provided that the Federal Council could submit draft legislation to the Federal Assembly. This competence has been retained in all subsequent constitutional revisions and is considered an indispensable element of the Swiss form of government, which combines elements of the parliamentary and directorial systems (BBl 1997 I 459).

#2. Systematic Classification

N. 3 Art. 181 BV is located in Chapter 3 of Title 5 of the Federal Constitution, which regulates the competences of the Federal Council. The provision is systematically placed between Art. 180 BV (government policy and other tasks) and Art. 182 BV (legislation and implementation). This placement underscores the central role of the Federal Council in the legislative process as a link between the government function and legislation.

N. 4 Art. 181 BV is closely related to:

• → Art. 160 para. 1 BV (right of initiative of members of the councils, parliamentary groups, committees and cantons)
• → Art. 163 BV (form of the enactments of the Federal Assembly)
• → Art. 180 para. 1 BV (determination of government policy)
• ↔ Art. 148 para. 1 BV (supreme authority of the Federal Assembly subject to the rights of the people and the cantons)

#3. Elements of the Offence / Normative Content

N. 5 «The Federal Council»: The addressee of the provision is the Federal Council as a collegiate body. The right of initiative does not belong to individual departments or federal councillors, but exclusively to the Federal Council as a whole (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1925).

N. 6 «submits»: Submission takes place through a formal message with draft legislation. The mere announcement of a proposal or informal consultation with members of parliament does not satisfy the requirements of Art. 181 BV. The submission must meet the formal requirements of parliamentary law (Tschannen, in: St. Galler Kommentar BV, 4th ed. 2023, Art. 181 N 4).

N. 7 «to the Federal Assembly»: The addressee is the Federal Assembly as a whole, not individual councils or committees. However, the Federal Council may determine pursuant to Art. 7 para. 1 ParlA which council it submits the proposal to first (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3582).

N. 8 «drafts of its enactments»: This refers to elaborated proposals for all forms of enactment by the Federal Assembly pursuant to Art. 163 BV: federal acts, federal decrees and simple federal decrees. The drafts must be ready for decision and contain all necessary documents (message, legislative text, financing statement) (Biaggini, BV Kommentar, 2nd ed. 2017, Art. 181 N 3).

#4. Legal Consequences

N. 9 Art. 181 BV establishes a competence, but not an obligation of the Federal Council to submit draft legislation. The Federal Council may exercise its right of initiative, but is only obliged to do so if the Constitution or a law contains a corresponding mandate (such as through the adoption of motions pursuant to Art. 120 para. 1 ParlA).

N. 10 The Federal Assembly is not bound by the Federal Council's proposals. It may amend, refer back or reject the drafts at will. The «final word» lies with the Federal Assembly, subject to the rights of the people and the cantons (VPB/JAAC 2007.1).

N. 11 Art. 181 BV does not establish any subjective rights of third parties. Neither citizens nor organisations can demand that the Federal Council submit specific draft legislation based on this provision. The provision regulates exclusively the internal relationship between the supreme federal authorities (Tschannen, St. Galler Kommentar BV, Art. 181 N 7).

#5. Points of Dispute

N. 12 Scope of the right of initiative: While the prevailing doctrine (Häfelin/Haller/Keller/Thurnherr, N 1926; Biaggini, Art. 181 N 2) sees the Federal Council's right of initiative as limited to formal enactments of the Federal Assembly, individual authors (notably Sägesser, Kommentar RVOG, 2007, Art. 7 N 15) advocate a broader interpretation that also includes informal proposals and reports.

N. 13 Relationship to parliamentary initiatives: It is disputed to what extent the Federal Council can participate in parliamentary initiatives pursuant to Art. 160 para. 1 BV. The majority opinion (Tschannen, St. Galler Kommentar BV, Art. 181 N 5; Graf, Parlamentsrecht, 2014, § 23 N 12) affirms a right to be heard, but not a formal right of proposal by the Federal Council. A minority (Müller, SJZ 2008, 505) advocates for extended participation rights.

N. 14 Withdrawal of proposals: It is controversially discussed whether the Federal Council can withdraw proposals once submitted. Practice affirms this until the final vote, while part of the doctrine (Aubert/Mahon, Petit commentaire de la Constitution, 2003, Art. 181 N 4) no longer recognises the possibility of unilateral withdrawal after treatment in the first council.

#6. Practical Guidelines

N. 15 In practice, the Federal Council submits between 50 and 80 draft enactments annually to the Federal Assembly. Preparation takes place in the departments with the involvement of interested circles in the consultation procedure (→ Art. 147 BV). The formal adoption of the message and the draft takes place through a Federal Council decree.

N. 16 The timeline follows a standardised scheme: mandate (through motion or government programme) — preliminary draft — consultation — evaluation — message draft — office consultation — co-reporting procedure — Federal Council decree — transmission to the Federal Assembly. This process usually takes 18 to 36 months.

N. 17 For parliamentary treatment, it is crucial that the documents are complete: message with the initial situation, main features of the proposal, explanations of the individual articles, effects on the Confederation and cantons, constitutionality as well as the draft enactment itself. Incomplete proposals are regularly referred back for revision by the preparatory committees.

Art. 181 Cst. — Case Law

#Direct Case Law on Art. 181 Cst.

Art. 181 Cst. has not been directly addressed in the published case law of the Federal Court. This is explained by the purely organisational character of the provision, which governs the internal procedure between the Federal Council and the Federal Assembly without establishing subjective rights.

#Related Constitutional Case Law

#I. Separation of Powers and Relationship between Federal Council and Federal Assembly

The constitutional framework governing the relationship between the Federal Council and the Federal Assembly, which Art. 181 Cst. makes concrete, has been confirmed by the Federal Court in various contexts:

Opinion of the Federal Office of Justice of 4 December 2006 (VPB/JAAC 2007.1)

The Federal Council's duty to inform regarding ballot proposals demonstrates the constitutional position of the two powers. The Federal Council, as the supreme executive authority, must implement the decisions of the Federal Assembly, while the Federal Assembly exercises supreme power in the Confederation, subject to the rights of the people and the cantons (Art. 148 para. 1 Cst.).

«The Federal Council is thus involved in the entire legislative process and can exert a formative influence. However, the final word, subject to the rights of the people and the cantons, always rests with Parliament. Parliament definitively determines the content that is decisive for the vote.»

This statement underlines the institutional order expressed in Art. 181 Cst.: the Federal Council submits drafts, but the Federal Assembly decides conclusively.

#II. Right of Initiative of the Federal Council

BGE 94 I 525 (18 December 1968) — Reunification of Basel

The Federal Court recognised the constitutional significance of draft proposals in constitutional assemblies. Although this concerned cantonal law, the principles are transferable to the federal order:

«The Federal Court's power of review extends to the question of whether the cantonal authorities have exceeded their constitutional competences.»

This case law reinforces the importance of clearly delineated competences between state organs, as provided for by Art. 181 Cst. in the relationship between the Federal Council and the Federal Assembly.

#III. Duty to Inform in Legislative Procedures

BGE 129 I 244 — Freedom to Vote and Duty to Inform

The Federal Court affirmed a duty of the authorities to inform before votes based on freedom to vote:

«The guarantee of political rights protects the free formation of opinion by voters (Art. 34 para. 2 Cst.). The prevailing doctrine sees in free formation of opinion not only a right to information for voters, but also a duty of the authorities to inform.»

This case law supports the duty of transparency of the Federal Council towards the Federal Assembly envisaged in Art. 181 Cst.

#Conclusion

Art. 181 Cst., as a pure organisational provision, is not justiciable and therefore hardly the subject of judicial disputes. However, the case law on related constitutional provisions confirms the constitutional order underlying this provision: the clear delimitation of competences between the Federal Council and the Federal Assembly in the legislative process.