#1. Legislative History

N. 1 Art. 182 Const. largely corresponds to former Art. 104 oConst. The provision was systematically relocated and linguistically modernised during the total revision of 1999, without any material change being intended (BBl 1997 I 1, 363 f.). The anchoring of ordinance-making power in the Constitution dates back to the Federal Constitution of 1874 and has its roots in the Swiss principle of separation of powers.

N. 2 The Federal Council's message on the new Federal Constitution of 20 November 1996 emphasises that the Federal Council's ordinance-making competence encompasses both the authority to issue legal ordinances (based on a delegation) and implementing ordinances (to concretise laws) (BBl 1997 I 363). This dual function reflects the central role of the Federal Council in the Swiss legislative system.

#2. Systematic Classification

N. 3 Art. 182 Const. is located in the 3rd section on the Federal Council and the Federal Administration. The provision must be read in connection with the constitutional principle of legality (Art. 5 Const.), the principle of separation of powers (→ Art. 164 Const.) and the delegation principles (Art. 164 para. 2 Const.).

N. 4 The Federal Council's ordinance-making power is part of the executive function but stands in tension with the primacy of the legislature. While Art. 163 Const. establishes the Federal Assembly's legislative competence, Art. 182 Const. enables the Federal Council to act as a legislator within the delegated framework. This systematic connection is also evident in case law on the distinction between law and ordinance (BGE 139 II 460 consid. 3.2).

#3. Elements / Normative Content

#a) Legal ordinances (para. 1)

N. 5 Legal ordinances are general-abstract norms that the Federal Council issues based on a constitutional or statutory authorisation. The authorisation must be sufficiently specific (Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, 10th ed. 2020, N 1834). The Federal Court distinguishes between:

• Independent legal ordinances: based directly on the Constitution (rare)
• Dependent legal ordinances: based on statutory delegation (standard case)

N. 6 The requirements for specificity of the delegation norm depend on the severity of the fundamental rights interference. In cases of severe interference, the delegation must be so precise that the essential features of the regulation already emerge from the law (BGE 143 I 253 consid. 3.5; Rhinow/Schefer/Uebersax, Verfassungsrecht, 3rd ed. 2016, N 2848).

#b) Implementing ordinances (para. 2)

N. 7 The implementing competence encompasses three areas:

1. Implementation of legislation: Issuance of administrative ordinances and implementing provisions
2. Implementation of Federal Assembly resolutions: Implementation of parliamentary mandates
3. Implementation of judicial judgments: Ensuring judgment implementation

N. 8 Implementing ordinances do not require special statutory authorisation; they result from the Federal Council's constitutional implementing competence (Tschannen/Zimmerli/Müller, Verwaltungsrecht, 4th ed. 2014, § 23 N 15). However, they may not create new legal obligations or extend existing ones (BGE 139 II 460 consid. 3.3).

#4. Legal Consequences

N. 9 The legal consequences differ according to the type of ordinance:

Legal ordinances establish direct rights and obligations for private parties. They are binding on authorities and courts (→ Art. 190 Const.). However, if they exceed the delegation limits, the Federal Court may leave them unapplied in the specific case (BGE 139 II 460 consid. 4).

N. 10 Implementing ordinances are primarily directed at implementing authorities. Insofar as they merely concretise the law without creating new obligations, they are permissible. If they exceed this framework, they violate the principle of separation of powers (BGE 126 III 36 consid. 3b).

#5. Controversies

N. 11 Disputed distinction between legal and implementing ordinances: While Müller/Schefer (Grundrechte, 4th ed. 2008, p. 78) argue for a restrictive interpretation of implementing competence, Häfelin/Haller/Keller/Thurnherr (Bundesstaatsrecht, N 1840) advocate a more generous view for technical detailed regulations. The Federal Court follows a pragmatic approach and examines whether the ordinance materially creates new law (BGE 139 II 460).

N. 12 Limits of subdelegation: It is controversial to what extent the Federal Council may further delegate its ordinance-making competence to departments or offices. Rhinow/Schefer/Uebersax (Verfassungsrecht, N 2852) favour subdelegation for technical implementing provisions. Tschannen/Zimmerli/Müller (Verwaltungsrecht, § 23 N 18) warn against excessive shifting of legislation to the administrative level.

N. 13 Emergency ordinance power: It is disputed whether Art. 182 Const. implicitly contains an emergency ordinance power of the Federal Council. The prevailing doctrine (Ehrenzeller/Schindler/Schweizer/Vallender, St. Galler Kommentar, Art. 182 N 15) denies this and refers to Art. 185 para. 3 Const. for security policy measures. The COVID-19 pandemic has reignited this debate (cf. BGE 148 V 162).

#6. Practical Guidelines

N. 14 When reviewing an ordinance, a three-step approach should be taken:

1. Authorisation basis: Is there a constitutional or statutory delegation?
2. Delegation limits: Does the ordinance remain within the framework of authorisation?
3. Proportionality: Are the regulations necessary and appropriate?

N. 15 For practice, the distinction between law-substituting and law-supplementing ordinance power is relevant. The former is only permissible with express and precise delegation, the latter is possible within the framework of general implementing competence (St. Galler Kommentar, Art. 182 N 12).

N. 16 For judicial review of ordinances: The Federal Court only reviews Federal Council ordinances as a preliminary question regarding their legality (BGE 141 II 169 consid. 2.1). Cantonal courts are not competent for abstract judicial review but may refuse to apply unlawful ordinance provisions in individual cases.

#Ordinance-making Power and Delegation Principles

BGE 141 II 169 of 30 March 2015
Delegation limits in approval procedures under aliens law.
The decision specifies the constitutional requirements for the delegation of legislative powers under Art. 182 para. 1 Cst.

«The transfer of approval authority for granting or extending an aliens law permit to the State Secretariat by the Federal Council violates the delegation principles of Art. 99 AIA in the cases of Art. 85 para. 1 lit. a and b OASA.»

BGE 139 II 460 of 16 August 2013
Violation of the separation of powers principle through ordinance-based exclusion of pension funds from VAT groups.
The judgment shows the limits between legal ordinances and executive ordinances under Art. 182 Cst.

«Art. 16 para. 3 VAT Ordinance 2009 thus exceeds the scope of a mere executive ordinance and thereby violates the separation of powers principle. If the Federal Council is directly empowered by a delegation provision in the law (Art. 164 para. 2 Cst.), it enacts law-making provisions in the form of legal ordinances (Art. 182 para. 1 Cst.; so-called dependent legal ordinances).»

BGE 133 II 331 of 7 September 2007
Withdrawal of driving licence for traffic violations abroad — lack of legal basis.
The decision clarifies the strict requirements for the legal basis for ordinances under Art. 182 Cst.

«Swiss public law may, however, according to the so-called effects principle as a special manifestation of the territoriality principle, under certain circumstances also apply without a corresponding provision to facts that occur abroad but have sufficient effects on Swiss territory.»

#Implementation of Legislation

BGE 142 II 182 of 26 April 2016
Delimitation of competences for direct federal tax between cantons.
The judgment specifies the Federal Council's implementation competence under Art. 182 para. 2 Cst. in tax law.

«Executive federalism in the area of direct federal tax: The locally competent canton has the ‹obligatory right› to collect and assess direct federal tax. The administrative ordinance of the FTA, according to which the canton of residence should be competent in cases of relocation, violates federal law and therefore remains without effect.»

#Distinction between Legal and Administrative Ordinances

BGE 143 I 253 of 22 March 2017
Legality of the FINMA watchlist — requirements for formal legislative basis.
The decision shows the limits of ordinance-making power in cases of severe fundamental rights interferences.

«If there is a severe interference with fundamental rights, a clear and precise basis in the law itself is required. The interpretation of the law must reveal that the ordinance-maker should be empowered to issue the corresponding regulation.»

#Concrete Review of Ordinances

BGE 134 I 322 of 5 September 2008
Geneva smoking ban ordinance without sufficient legal basis.
The judgment shows the requirements for the delegation of legislative competences under Art. 164 para. 2 and Art. 182 Cst. at the cantonal level.

«The contested ordinance cannot be based either on this provision, which is not sufficiently precise and contains no delegation of legislative competences to the executive, or on the general police clause.»

#Limits of Ordinance-making Competence

BGE 126 III 36 of 2 February 2000
Exceeding delegation limits in health insurance law.
The decision clarifies the constitutional limits of ordinance-making power.

«By introducing this implementing provision, which creates a new obligation at the expense of the liable party and its liability insurance, the Federal Council exceeded the scope of the regulatory competence delegated to it by Art. 79 para. 3 HIA.»

BGE 121 II 465 of 14 November 1995
Employer's obligation to bear costs for illegal employment of foreigners — limits of delegation provision.
The judgment specifies the requirements for the definiteness of delegation provisions.

«The delegation provision of Art. 25 para. 1 FNIA empowers the Federal Council not only to enact implementing regulations, but also to enact law-supplementing norms; however, it is not sufficiently definite to allow the Federal Council to create a new far-reaching obligation of the employer.»

#Implementation of Federal Acts and Federal Assembly Resolutions

BGE 142 II 451 of 7 June 2016
Review of electricity tariffs by ElCom — Federal Council's implementation competence.
The judgment shows the practical implementation of the implementation competence under Art. 182 para. 2 Cst.

BGE 137 II 409 of 3 October 2011
Declared binding vocational training contributions — transfer of administrative tasks.
The decision addresses the limits of task transfer within the framework of implementation under Art. 178 para. 3 Cst.

«Criteria contained in Art. 178 para. 3 Cst. for the transfer of administrative tasks to organisations outside the federal administration, as well as prerequisites according to which the latter may issue administrative decisions.»

#Interruption of Limitation and Implementation Coordination

BGE 142 II 182 of 26 April 2016
Notification obligation between cantons in tax assessment.
The decision specifies the federal loyalty obligation in the implementation of federal law.

«Area-specific federal loyalty obligation among the cantons with the consequence that the canton of arrival and current residence must notify the canton of departure and former due date canton without being asked and without delay about the capital benefit from pension provision.»