1The Federal Council takes measures to safeguard external security, independence and neutrality of Switzerland.
2It takes measures to safeguard internal security.
3It may in direct application of this Article issue ordinances and rulings in order to counter existing or imminent threats of serious disruption to public order or internal or external security. Such ordinances must be limited in duration.
4In cases of emergency, it may mobilise the armed forces. Where it mobilises more than 4,000 members of the armed forces for active service or where the deployment of such troops is expected to last for more than three weeks, the Federal Assembly must be convened without delay.
Art. 185 FC grants the Federal Council important powers for Switzerland's security. The article regulates both normal security policy and extraordinary emergency situations.
The Federal Council is responsible for external security (protection against attacks from outside), independence (state sovereignty) and Switzerland's neutrality. It also ensures internal security, i.e. public order and the protection of the population from dangers. It normally fulfils these tasks with existing laws and ordinances.
In serious emergency situations, however, the Federal Council may also take extraordinary measures. It may then issue special emergency ordinances without prior approval from Parliament. This is only permitted when public order or security is seriously disrupted or when there is an immediate threat. The normal laws must also be insufficient. Such emergency ordinances must be limited in time.
In military deployments, the Federal Council may call up troops. If there are more than 4000 soldiers or if the deployment lasts longer than three weeks, it must immediately convene Parliament.
A practical example were the COVID-19 measures from March 2020. Based on Art. 185 para. 3 FC, the Federal Council issued emergency ordinances to combat the pandemic (lockdown, business closures, travel restrictions). These were limited in time and regularly adjusted.
All persons in Switzerland are affected, as security measures may be directed at the entire population. Violations of emergency ordinances are punishable by fines or other sanctions. The courts may review the constitutionality of emergency ordinances and refuse to apply them if they are unlawful.
No. 1 Art. 185 Cst. adopted the Federal Council's emergency law competence from the old Federal Constitution and further developed it. The Message on a new Federal Constitution of 20 November 1996 emphasized that the emergency law competence «only comes into play in extraordinary situations» when «public order, internal or external security are seriously disrupted or directly threatened» (BBl 1997 I 418). The constitutional legislator thereby sought to explicitly anchor the rule of law limits of emergency law.
No. 2 In contrast to the old Federal Constitution, Art. 185 para. 3 Cst. introduced for the first time an express constitutional basis for independent emergency ordinances. The time limit requirement was included as a rule of law barrier to prevent emergency law from becoming a permanent arrangement. Para. 4 codified parliamentary control over troop deployments as a democratic corrective.
No. 3 Art. 185 Cst. is located in Section 3 of Title 5 (Federal Council) and defines its core competences in the security sphere. The provision stands in systematic connection with Art. 173 para. 1 lit. a and b Cst. (Federal Assembly competences in security matters), Art. 184 Cst. (foreign policy competences) and Art. 186 Cst. (relations between Confederation and cantons).
No. 4 The emergency law competence according to para. 3 complements the ordinary legislative competences of the Federal Assembly (Art. 163 ff. Cst.) and urgent federal legislation (Art. 165 Cst.). It differs from the cantonal general police clause in that it represents a written constitutional competence (→ Art. 36 Cst., → Art. 57 Cst.).
No. 5External security (para. 1) encompasses the protection of Switzerland from military and non-military threats from abroad, including terrorism, cyber attacks and hybrid threats. Independence refers to state sovereignty, neutrality to Switzerland's position under international law (→ Art. 173 para. 1 lit. a Cst.).
No. 6Internal security (para. 2) covers the protection of the constitutional order, public safety and order as well as the protection of the population from serious dangers. The concept is to be understood broadly and according to BGE 137 II 431 also encompasses economic stability and the protection of the financial market as a foundation for classic police goods.
No. 7 The emergency law competence according to para. 3 presupposes four cumulative requirements:
Protected interest: public order or internal/external security
Serious disruption: occurred or directly threatening (temporal and substantive urgency)
Subsidiarity: no suitable legal measures available
Proportionality: measures must be necessary to cope with the disruption
No. 8 The time limit requirement is mandatory. The time limit must correspond to the expected duration of the threat situation. A subsequent extension is possible, but requires a new situation assessment (BGE 147 I 333).
No. 9 The troop deployment competence (para. 4) enables rapid action in security policy crises. The quantitative (4000 members) and temporal (3 weeks) thresholds trigger the Federal Assembly's convocation obligation, but not an approval requirement for the deployment itself.
No. 10 Based on para. 1 and 2, the Federal Council can act within the framework of the ordinary legal order, including the enactment of implementing ordinances (Art. 182 para. 2 Cst.). These measures are subject to the general rule of law principles.
No. 11 Emergency ordinances according to para. 3 can derogate existing statute law, but not constitutional law. According to BGE 147 I 333 they enjoy «constitutional immunity» in the initial phase of a crisis, which is however temporally limited. Later adjustments are subject to full constitutional judicial control.
No. 12 Emergency law orders are in principle challengeable, unless the guarantee of access to the courts (Art. 29a Cst.) has been exceptionally suspended. The courts examine the constitutionality of emergency ordinances as a preliminary question (BGE 147 V 423).
No. 13Scope of emergency law competence: While Häfelin/Haller/Keller/Thurnherr (Bundesstaatsrecht, 10th ed. 2020, No. 1624 ff.) advocate a restrictive interpretation, Epiney (BSK BV, 2nd ed. 2024, Art. 185 No. 12) pleads for flexible handling of novel threats. The St. Gallen Commentary (Schweizer, SGK BV, 4th ed. 2023, Art. 185 No. 8) takes a mediating position.
No. 14Constitutional immunity: The doctrine is divided regarding the scope of the constitutional immunity developed in BGE 147 I 333. Tschannen (Staatsrecht der Schweizerischen Eidgenossenschaft, 5th ed. 2021, § 48 No. 12) criticizes the concept as too far-reaching, while Biaggini (BV Kommentar, 2nd ed. 2017, Art. 185 No. 7) defends it as necessary flexibility in crisis times.
No. 15Economic emergencies: It is disputed whether Art. 185 para. 3 Cst. also covers purely economic crises. According to the majority view (Rhinow/Schefer/Uebersax, Verfassungsrecht, 3rd ed. 2016, No. 3485; different opinion Müller, Kommentar zu Art. 185, in: Ehrenzeller et al., St. Galler Kommentar, Art. 185 No. 15), economic emergencies are only covered if they threaten public order.
No. 16 When invoking Art. 185 para. 3 Cst., the Federal Council must concretely present and document the threat situation. Mere reference to an abstract danger is insufficient. Subsidiarity must be proven through careful examination of existing legal foundations.
No. 17 Emergency ordinances are to be limited to what is absolutely necessary. Structural legal changes or the creation of new administrative competences are in principle reserved to the ordinary legislator. The time limit should be chosen short and renewed if necessary, rather than providing long deadlines from the outset.
No. 18 Parliamentary control mechanisms also apply to emergency law. The competent committees are to be informed early (Art. 7a GOGA). In the case of long-lasting crises, a transition to urgent federal law according to Art. 165 Cst. is recommended.
BGE 129 II 193 (21.02.2003)
The Federal Supreme Court defined for the first time the limits of emergency powers in the context of internal security.
The decision is fundamental for distinguishing between regular administrative activity and emergency law under Art. 185 para. 3 Cst.
«The Federal Council may, based directly on Art. 185 para. 3 Cst., only take measures when there is an actual or immediately threatening serious disruption of public order or internal or external security and these measures are necessary to avert this disruption.»
BGE 137 II 431 (15.07.2011)
The Federal Supreme Court clarified the prerequisites for emergency law in the financial sector and developed the three-tier test standard.
This decision is groundbreaking for the application of Art. 185 para. 3 Cst. in financial crises.
«Invoking the police general clause requires that a fundamental legal interest is concretely, seriously and immediately endangered. In exceptional situations, economic stability and protection of the financial market can also represent a correspondingly worthy police interest, as both encompass classic police interests such as property or good faith in business transactions, which would be massively impaired in the event of a collapse of the financial system.»
#COVID-19 Pandemic Measures and Constitutional Immunity
BGE 147 I 333 (24.03.2021)
The Federal Supreme Court developed the concept of «constitutional immunity» for urgent measures and strengthened the right to legal remedies.
The decision is central to the constitutional review of emergency ordinances.
«While ordinances that the Federal Council issues at the beginning of a pandemic under great time pressure may enjoy constitutional immunity, this is not unlimited. Subsequent adjustments must meet ordinary constitutional requirements, in particular the guarantee of legal remedies under Art. 29a Cst.»
BGE 149 V 2 (01.01.2022)
The Federal Supreme Court differentiated between various phases of COVID-19 measures and their constitutional assessment.
The decision shows the limits of constitutional immunity for subsequent adjustments to emergency ordinances.
«The version of the COVID-19 Ordinance of 6 July 2020 enjoys constitutional immunity due to the urgency of the situation at that time. The version in force from 17 September 2020 is not covered by this and violates the principle of legal equality.»
BGE 148 V 144 (20.03.2020)
The Federal Supreme Court confirmed the admissibility of emergency measures in the area of unemployment insurance during the COVID-19 pandemic.
The decision clarifies the importance of urgency as a central criterion.
«The urgency of the measures meant that emergency ordinances were issued, repealed and replaced at a rapid pace, without the focus being on crafting mature, well-thought-out legislation in all respects.»
BVGer B-2334/2023 (01.10.2025)
The Federal Administrative Court struck down a FINMA ruling on the write-down of AT1 capital instruments and declared the underlying emergency ordinance unconstitutional.
The decision defines the limits of emergency powers in bank rescues and strengthens property protection.
«The enactment of an ‹emergency ordinance› is only permissible when the legal order provides no other measures that are sufficient for managing the extraordinary situation. However, the Too big to fail regime constitutes ordinary law for extraordinary situations of systemically important banks.»
#Principle of Subsidiarity and Relationship to Ordinary Law
Judgment 2C_127/2010 (15.07.2011)
The Federal Supreme Court emphasized that emergency law may only be applied subsidiarily when ordinary law offers no solutions.
The decision is fundamental to understanding the principle of subsidiarity under Art. 185 para. 3 Cst.
«The requirement of subsidiarity is intended to prevent the Federal Council from relying on its constitutional competence to enact emergency law when the legislature has already regulated the crisis situation in question.»
BGE 149 I 91 (19.12.2022)
The Federal Supreme Court clarified the distinction between Art. 184 para. 3 Cst. (foreign relations) and Art. 185 para. 3 Cst. (internal and external security).
The decision is relevant for the correct constitutional foundation of emergency measures.
«The competences under Art. 184 para. 3 and Art. 185 para. 3 Cst. partially overlap, but the focus of the respective measure is decisive for the choice of legal basis.»
BGE 147 V 423 (07.06.2021)
The Federal Supreme Court defined the intensity of judicial review when examining emergency ordinances.
The decision shows that emergency law is also subject to full judicial review.
«Emergency ordinances are subject to full judicial review. The Federal Supreme Court may examine their constitutionality as a preliminary question and refuse their application if they are unconstitutional.»
Judgment 8C_272/2021 (17.11.2021)
The Federal Administrative Court examined the temporal limits of emergency measures and the requirements for their time limits.
The decision clarifies that emergency law may not be applied permanently.
«Emergency measures must be temporally limited and regularly reviewed for their continued necessity. Indefinite application contradicts the character of emergency law.»