1The Federal Council is responsible for maintaining relations between the Confederation and the Cantons and collaborates with the latter.
2It may approve cantonal legislation when required to do so by federal law.
3It may object to treaties between Cantons or between Cantons and foreign countries.
4It ensures compliance with federal law, as well as the cantonal constitutions and cantonal treaties and takes the measures required to fulfil this duty.
Art. 186 BV — Overview
Art. 186 BV governs the tasks of the Federal Council in the federal system. The Federal Council must maintain relations with the cantons and cooperate with them (para. 1). It must approve cantonal enactments when federal law requires this for its proper implementation (para. 2). The Federal Council may object to treaties between cantons or between cantons and foreign countries (para. 3). Finally, it ensures compliance with federal law by the cantons and takes necessary measures in case of violations (para. 4).
This provision is central to cooperative federalism in Switzerland (BBl 1997 I 447). Maintaining relations (para. 1) includes regular consultations and dialogue in conferences, but does not create enforceable rights for the cantons (Biaggini, BV Kommentar, Art. 186 N 3). The approval requirement (para. 2) exists only when expressly required by federal law or when uniform implementation of the law would be endangered without approval (Ehrenzeller/Schindler/Schweizer/Vallender, St. Galler Kommentar, Art. 186 N 11).
Federal supervision (para. 4) is a duty, not merely a power of the Federal Council (JAAC 69.1). It is intended to ensure uniform and correct application of federal law (BGE 148 II 369). The Federal Council has various supervisory instruments at its disposal: from information to warnings to substitute performance (Tschannen/Zimmerli/Müller, Verwaltungsrecht, § 57 N 23). Federal intervention is available as a last resort.
An example: If a canton refuses to properly implement immigration law, the Federal Council may first issue a warning, then issue instructions, and finally take over the task itself.
Art. 186 FC — Doctrine
#Legislative History
N. 1 Art. 186 FC codifies the Federal Council's relations with the cantons and has its immediate predecessors in Art. 102 para. 2, 8 and 9 of the Federal Constitution of 1874 (oFC). Under the old Constitution, the Federal Council was already responsible for maintaining relations with the cantons, approving cantonal enactments, and supervising compliance with federal law. The total revision of 1999 transferred these competences — slightly systematised and linguistically modernised — into the new Constitution, without creating any materially new regulatory content.
N. 2 The Federal Council's Dispatch on the new Federal Constitution of 20 November 1996 (BBl 1997 I 1 ff., p. 436 ff.) emphasised that Art. 186 FC brings together the central elements of federal cooperation between the Confederation and the cantons in a single provision. The Federal Council affirmed that the maintenance of relations is not a mere mandate to represent interests, but active cooperation oriented towards collaboration and dialogue. The Dispatch describes the approval of cantonal enactments as a control mechanism to ensure the conformity of cantonal law with federal law in the area of implementation; the right to object to cantonal treaties remained essentially unchanged compared with the old Constitution (BBl 1997 I 437 f.).
N. 3 No substantive corrections to the draft were made during the parliamentary process. The provision was adopted essentially in the form proposed by the Federal Council. The character of paragraph 4 — federal supervision as a comprehensive duty — had already been recognised before the total revision, both in the Federal Council's practice and in doctrine, and was not fundamentally reconceived.
#Systematic Classification
N. 4 Art. 186 FC is situated in Chapter 6 («Federal Council and Federal Administration») of Title 5 («Federal Authorities») and sets out the competences of the Federal Council in its relations with the cantons. The provision is a competence norm of an organisational nature; it does not establish subjective rights of private individuals.
N. 5 The provision is closely connected systematically with:
- → Art. 3 FC (cantonal autonomy and residual competence of the cantons): Federal supervision under Art. 186 para. 4 FC finds its limit where the cantons act autonomously in a constitutionally permissible manner.
- ↔ Art. 44–53 FC (relationship between the Confederation and the cantons): Art. 186 FC gives specific expression, at the level of the federal executive, to what Art. 44 (cooperation and mutual consideration), Art. 46 (implementation of federal law) and Art. 49 para. 2 FC (federal supervision) set out programmatically.
- → Art. 49 para. 2 FC: The mandate to ensure compliance with federal law is the constitutional basis of federal supervision. Art. 186 para. 4 FC designates the Federal Council as the primary bearer of that supervision.
- → Art. 182 FC (legislation and implementation): The Federal Council implements federal law and issues the necessary ordinances; Art. 186 FC supplements this implementing competence with specific supervisory instruments.
- → Art. 191c FC (judicial independence): The limits of federal supervision over cantonal courts are determined by the principle of separation of powers in conjunction with Art. 191c FC.
N. 6 Art. 186 FC is an organisational norm; its legal consequences are directed primarily at the Federal Council as an authority. It does not confer directly enforceable claims on private individuals; however, the duty of federal supervision (para. 4) is, according to case law, a genuine official duty of the Confederation (→ N. 30).
#Elements of the Provision and Normative Content
#Paragraph 1: Maintenance of Relations and Cooperation
N. 7 Art. 186 para. 1 FC obliges the Federal Council to actively maintain relations with the cantons and to cooperate with them. This provision is programmatic and institutional in nature and forms the constitutional basis for institutionalised cooperation between the Confederation and the cantons (Conference of Cantonal Governments, intercantonal and Confederation-canton conferences). According to Tschannen/Zimmerli/Müller, this duty includes in particular the timely information and consultation of the cantons in the Confederation's planning and legislative processes (Tschannen, Staatsrecht der Schweizerischen Eidgenossenschaft, 5th ed. 2021, N. 908 f.).
N. 8 Paragraph 1 does not impose on the Federal Council a duty to choose specific forms of cooperation. The choice of form of cooperation lies within its discretion. A violation of para. 1 cannot in principle be enforced before the courts, since it involves an organisational duty, not a subjective right of third parties.
#Paragraph 2: Approval of Cantonal Enactments
N. 9 Art. 186 para. 2 FC empowers the Federal Council to approve cantonal enactments where the implementation of federal law so requires. The duty to approve is not a general one, but presupposes a basis in federal law that orders approval as a condition for implementation (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1461). The provision does not itself establish a duty to approve; rather, it presupposes one.
N. 10 Approval is a preventive supervisory instrument that ensures the conformity of cantonal implementing enactments with federal law before they enter into force or take effect. In terms of substance, the Federal Council examines in the approval procedure only whether the cantonal enactment is compatible with the relevant federal law; a review of expediency does not as a rule take place (Künzli, BSK BV, Art. 186 N. 18 f.). The approval has declaratory character in so far as the cantonal enactment is already in conformity with federal law; it has constitutive effect where it is subject to a reservation or is refused.
N. 11 Cantonal enactments requiring federal approval only take effect upon approval. If the Federal Council grants approval subject to conditions or reservations, the canton is obliged to make the necessary adjustments.
#Paragraph 3: Objection to Cantonal Treaties
N. 12 Art. 186 para. 3 FC confers on the Federal Council the right to raise an objection against intercantonal treaties (concordats) and against treaties concluded by the cantons with foreign states. Grounds for an objection include in particular: violation of federal law or the Federal Constitution, prejudice to federal interests, or encroachment on federal competences (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 2805 f.). The term «objection» designates here a formal instrument of challenge combining preventive and repressive characteristics.
N. 13 Intercantonal treaties require approval by the Confederation under Art. 48 para. 3 FC if they affect the rights and obligations of other cantons or the Confederation. The objection under Art. 186 para. 3 FC is by contrast an instrument of the Federal Council that must be distinguished from the formal duty of approval under Art. 48 para. 3 FC. The right of objection under para. 3 is rarely exercised in practice; coordination is generally achieved at the pre-treaty stage through consultation.
N. 14 The Federal Council's right of objection to treaties concluded by the cantons with foreign states must be read in the light of Art. 55 FC and the participation of the cantons in foreign policy. The right of objection ensures that the cantons, in their international activities (within the limits drawn by Art. 56 FC), do not come into conflict with the Confederation's foreign policy interests.
#Paragraph 4: Federal Supervision
N. 15 Art. 186 para. 4 FC mandates the Federal Council to ensure compliance with (1) federal law, (2) the cantonal constitutions and (3) cantonal treaties, and to take «the necessary measures» to that end. The provision is the central ordinary constitutional implementation of the federal supervision anchored in Art. 49 para. 2 FC.
N. 16 The primary holder of supervisory authority is the Federal Council, although supervisory competences may be delegated by federal statute to other federal authorities, and this has in fact occurred in numerous subject areas (e.g. FINMA, FOT, FOEN). In such cases, the relevant federal authority exercises supervision within the scope of the delegation.
N. 17 Federal supervision under para. 4 is not merely a power but a genuine duty of the Federal Council (JAAC 69.1 of 31 August 2004). It covers both the area in which the cantons implement federal law (delegated sphere of activity) and that in which autonomous cantonal law can be measured against federal law (sphere of independent activity). Supervision is comprehensive and not confined to specific areas of law.
N. 18 The objects of supervision include, in addition to federal law, also the cantonal constitutions. This is explained by the fact that the Confederation guarantees the cantonal constitutions pursuant to Art. 51 FC and therefore has an interest in their observance. The Confederation thereby implicitly also supervises the constitutional conformity of cantonal acts under cantonal law (Tschannen, op. cit., N. 985).
N. 19 The «necessary measures» referred to in para. 4 are indeterminate; the Federal Council is required to make a selection in accordance with the principles of proportionality (→ Art. 5 para. 2 FC) and subsidiarity. Recognised supervisory instruments (in accordance with the practice set out in JAAC 69.1) include: rights to information, reporting obligations, directives, advisory assistance, the authority's appeal to the Federal Supreme Court, substituted performance, and — highly contested — the annulment of cantonal acts (→ N. 26–29).
#Legal Consequences
N. 20 As an organisational norm, Art. 186 FC does not establish subjective rights. However, a breach of the supervisory duty (para. 4) may, under certain conditions, give rise to liability of the Confederation under Art. 3 LRCF (SR 170.32). The Federal Administrative Court has clarified that Art. 49 para. 2 FC does not constitute a rule of conduct that establishes a guarantor position in the sense of the law of state liability (Judgment A-112/2017 of 31 August 2017; confirmed in the literature by Häfelin/Haller/Keller/Thurnherr, op. cit., N. 1480).
N. 21 Approval under para. 2 constitutes a ruling (within the meaning of the APA, SR 172.021) and may be challenged by the ordinary legal remedies, insofar as this is permissible under the relevant rules of subject-matter or procedural jurisdiction. Challenge before cantonal or federal courts against a refusal of approval is possible in individual cases.
N. 22 The right of objection under para. 3 does not trigger a formal procedure with a fixed course. The legal effect of an objection raised depends on the statutory framework in the relevant subject area. When an objection is raised, the treaty is as a rule not enforceable in the interim.
N. 23 The exercise of federal supervision under para. 4 may — where the ordinary legal remedy is not available — take the form of directives, orders or, in extremis, substituted performance. The Federal Supreme Court has held that the Federal Council may in principle employ all appropriate means to enforce federal law (Judgment 1C_35/2022 of 23 November 2022, consid. 5.2, with reference to Griffel, Expert Opinion 2017, p. 61 f.).
#Contested Issues
#1. Annulment of Cantonal Court Judgments by the Federal Council
N. 24 The most significant and controversial question concerning Art. 186 para. 4 FC relates to the scope of the «necessary measures»: can the Federal Council, as supervisory authority, annul cantonal court judgments?
N. 25 The prevailing doctrine answers this question in the negative as a matter of principle. Hangartner (ZBl 76/1975 pp. 6 ff. and 12 ff.) as well as Rhinow/Schefer/Uebersax (op. cit., N. 788) and Häfelin/Haller/Keller/Thurnherr (op. cit., N. 1480) take the view that, by virtue of the principle of separation of powers (in conjunction with Art. 191c FC on judicial independence), the Confederation cannot in principle annul a cantonal court judgment. A court judgment can only be varied by a court; supervision over the judiciary must be confined to administrative matters.
N. 26 A minority view admits the annulment of cantonal court judgments as an «ultima ratio» in cases of the most serious violations of federal law: Kölz/Häner/Bertschi (Verwaltungsverfahren und Verwaltungsrechtspflege des Bundes, 3rd ed. 2013, N. 768) and Künzli (BSK BV, Art. 186 N. 36) consider annulment to be conceivable in exceptional cases. Tschannen (Staatsrecht, 5th ed. 2021, N. 988) concurs, but confines it to cases in which the ordinary legal remedy is not available.
N. 27 The Federal Supreme Court resolved this contested issue substantially in favour of the prevailing doctrine in Judgment BGE 151 I 382 (= Judgment 2C_681/2023 of 19 March 2025), consid. 4.9.2: annulment of a cantonal court judgment by way of supervisory authority on the basis of Art. 186 para. 4 FC is, if at all, only possible in exceptional cases, and is in any event excluded where the ordinary legal remedy in the form of an authority's appeal is available. The principle of separation of powers and Art. 191c FC entail that administrative authorities are bound by legally binding court judgments.
#2. The Authority's Appeal as the Preferred Supervisory Instrument
N. 28 The Confederation's authority's appeal to the Federal Supreme Court (Art. 89 para. 2 lit. a and Art. 111 para. 2 BGG) is regarded in case law and doctrine as the primary supervisory instrument, because it has recourse to the ordinary legal remedy and thereby preserves cantonal judicial autonomy. The Federal Supreme Court held in BGE 148 II 369 (= 2C_1038/2020 of 15 March 2022) that the authority's appeal is a means of federal supervision that falls back on the cantonal remedy system and is «in a certain sense autonomous» from it. Waldmann (BSK BV, Art. 49 N. 44) and Pflüger (Die Legitimation des Gemeinwesens zur Beschwerde in öffentlich-rechtlichen Angelegenheiten, 2013, N. 826 ff.) emphasise the priority of this instrument over other supervisory instruments.
N. 29 The Federal Supreme Court held in BGE 148 II 369, consid. 3.3.7, that the function of the authority's appeal as a supervisory instrument of the Confederation is substantially impaired if cantonal procedural law is applied in a way that imposes court costs on the federal authority. A federal authority that performs its supervisory function by means of an authority's appeal without any financial interest at stake should in principle not be ordered to pay cantonal court costs.
#3. Relationship between Federal Supervision and Subsidiarity
N. 30 Art. 186 para. 4 FC obliges the Federal Council to intervene when federal law is not complied with. According to case law, the principle of subsidiarity applies in this regard: the Federal Council first selects the mildest suitable supervisory instrument. Where the ordinary legal remedy (authority's appeal) is available, it displaces direct supervisory intervention (Tschannen, op. cit., N. 986). The Federal Supreme Court expressly confirmed this in Judgment 1C_35/2022, consid. 5.2: the Federal Council «may in principle employ all appropriate measures», but must do so «in accordance with the principle of proportionality and the principle of subsidiarity».
#Practical Notes
N. 31 In practice, federal supervision under Art. 186 para. 4 FC is predominantly delegated on a sectoral basis: in the area of foreign nationals law (SEM), tax law (FTA), spatial planning law (ARE), and environmental law (FOEN), specialised federal authorities exercise supervision. The Federal Council retains a residual supervisory function for cases where no sectoral delegation exists.
N. 32 The authority's appeal to the Federal Supreme Court (Art. 89 para. 2 lit. a BGG) is the most effective and most frequently used supervisory instrument. Federal authorities may also invoke cantonal remedies at the cantonal level (Art. 111 para. 2 BGG) before lodging an appeal before the Federal Supreme Court. In doing so, they are as a rule not subject to court costs, provided they are exclusively performing a supervisory function without any financial interest at stake (BGE 148 II 369, consid. 3.3.8).
N. 33 In practice, the approval of cantonal enactments under para. 2 regularly occurs in the context of the approval of cantonal structure plans (Art. 11 SPA), the approval of cantonal implementing legislation for federal statutes, and the approval of cantonal constitutions (Art. 51 para. 2 FC in conjunction with Art. 186 para. 2 FC). The approval of cantonal constitutions by the Federal Assembly (Art. 51 para. 2 FC) must be distinguished from the executive approval competence under Art. 186 para. 2 FC.
N. 34 The right of objection under para. 3 against intercantonal treaties and treaties concluded by the cantons with foreign states is hardly ever exercised formally in practice. Coordination and reservations are made predominantly at the consultation stage. Authorities preparing cantonal treaties should therefore inform the relevant federal offices (in particular FDJP, FDFA) at an early stage in order to avoid a formal objection.
N. 35 The supervisory duty under Art. 186 para. 4 FC does not establish a guarantor position of the Confederation within the meaning of the law of state liability. The Federal Administrative Court held in Judgment A-112/2017, consid. 7.3, that Art. 49 para. 2 FC is not a rule of conduct that establishes liability of the Confederation towards private individuals for inadequate supervision. State liability may, however, arise from sector-specific supervisory duties that go beyond Art. 186 para. 4 FC.
N. 36 For the cantons, the following applies: cantonal enactments requiring federal approval under para. 2 may not simply be brought into force. The Federal Council's practice of granting approvals subject to conditions or under reservations obliges the cantons to make subsequent adjustments. If cantonal enactments are to enter into force as quickly as possible, early coordination with the responsible federal office is advisable.
#Selected Bibliography
- Ehrenzeller, BSK BGG, 3rd ed. 2018, Art. 111 BGG N. 11
- Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1461, 1480
- Hangartner, Bundesaufsicht und richterliche Unabhängigkeit, ZBl 76/1975, pp. 6 ff.
- Künzli, BSK BV, Art. 186 N. 18 f., 36
- Pflüger, Die Legitimation des Gemeinwesens zur Beschwerde in öffentlich-rechtlichen Angelegenheiten, 2013, N. 826 ff.
- Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 788, 2805 f.
- Tschannen, Staatsrecht der Schweizerischen Eidgenossenschaft, 5th ed. 2021, N. 908 f., 985–988
- Waldmann, BSK BV, Art. 49 N. 44
Art. 186 BV — Case law
#Federal supervision (para. 4)
#Principles and purpose of federal supervision
BGE 148 II 369 of 15 March 2022, consid. 3 Federal supervision serves to ensure the uniform and correct application of federal law. The federal authority appeal is an instrument of federal supervision, which draws upon the cantonal remedies system and is to a certain extent autonomous in relation to it.
«The purpose of the federal authority appeal is to ensure the uniform and correct application of federal law. It is an instrument of federal supervision, which for this purpose draws upon the cantonal remedies system and is to a certain extent autonomous in relation to it.»
JAAC 69.1 of 31 August 2004 The exercise of federal supervision is not a power, but a duty of the Confederation. It applies both in the autonomous and delegated areas of cantonal competence.
«The exercise of supervision over the cantons is not merely a power, but a duty of the Confederation. This concerns ensuring the equal application of superior norms of federal law, which are binding for all federalist levels.»
#Delegation of federal supervision
Judgment 1C_35/2022 of 23 November 2022, consid. 5.1 Federal supervision is primarily the responsibility of the Federal Council, which, however, in accordance with the principle of proportionality and the principle of subsidiarity, may in principle use all appropriate means to enforce federal law.
«Art. 49 para. 2 BV tasks the Confederation with ensuring compliance with federal law by the cantons. Federal supervision is primarily the responsibility of the Federal Council (Art. 186 para. 4 BV), which - in accordance with the principle of proportionality and the principle of subsidiarity - may in principle use all appropriate means to enforce federal law.»
Judgment 2C_681/2023 of 19 March 2025, consid. 4 Federal supervision cannot in principle be used to overturn cantonal court judgments, as this would violate the principle of separation of powers.
«These principles also apply in the relationship between the Confederation and the cantons. Thus, the Confederation cannot in principle overturn a cantonal court judgment within the framework of federal supervision.»
#Supervisory instruments
JAAC 69.1 of 31 August 2004 Supervisory instruments have developed over decades in practice and in principle do not require any special legal basis. They must be in the public interest and proportionate.
«Supervisory instruments have developed over decades in practice. According to prevailing doctrine, they in principle do not require any special legal basis, but are based directly on Art. 186 para. 4 BV. [...] Supervisory instruments must be used in the public interest and proportionately.»
Decision 150000224 of 27 November 2009 The Federal Council has to exercise its supervisory duty under Art. 186 para. 4 BV and take the necessary measures to enforce federal law.
«Under Art. 186 para. 4 BV, the Federal Council ensures compliance with federal law as well as with cantonal constitutions and treaties of the cantons and takes the necessary measures.»
#Approval of cantonal enactments (para. 2)
Case law on Art. 186 para. 2 BV is limited, as the approval requirement only exists "where the implementation of federal law so requires". Most available decisions concern other areas of law with their own approval procedures.
#Objections to treaties of the cantons (para. 3)
Case law on Art. 186 para. 3 BV is sparse. The right of objection against intercantonal treaties and treaties of the cantons with foreign states is rarely exercised and correspondingly rarely litigated in court.
#Cooperation with the cantons (para. 1)
Judgment A-112/2017 of 31 August 2017 Cooperation between the Confederation and the cantons is a fundamental principle of Swiss federalism. Federal supervision does not serve primary liability claims, but proper law enforcement.
«Although [federal supervision] serves the correct and uniform implementation of federal legislation, the provision of Art. 49 para. 2 BV is not a behavioural norm which establishes a guarantor position.»