#1. Legislative History

N. 1 Art. 187 Federal Constitution was introduced with the total revision of the Federal Constitution in 1999 and replaces various provisions of the old Federal Constitution of 1874. The norm summarises those tasks and powers of the Federal Council which do not already result from its position as the supreme governing and executive authority (Art. 174 Federal Constitution) or from its function as a collegial body (Art. 177 Federal Constitution). The Message on the new Federal Constitution of 20 November 1996 states that Art. 187 Federal Constitution was intended to provide a «completion» of the Federal Council's competences (BBl 1997 I 1, 384).

N. 2 The tasks and powers listed in para. 1 lit. a–d largely correspond to previous constitutional law but have been systematically reorganised. Para. 2 as a general clause enables the legislature to transfer further tasks and powers to the Federal Council without requiring a constitutional revision. This flexibility was already recognised under the old Federal Constitution and was to be maintained (BBl 1997 I 384).

#2. Systematic Classification

N. 3 Art. 187 Federal Constitution is located in section 3 of chapter 5 of the Federal Constitution on the federal authorities. The norm complements the general provisions on the Federal Council (Art. 174–179 Federal Constitution) and specifies individual tasks and powers. It is closely connected with:

• → Art. 174 Federal Constitution (supreme governing and executive authority)
• → Art. 169 Federal Constitution (parliamentary high-level supervision)
• → Art. 180 Federal Constitution (government policy)
• → Art. 182 Federal Constitution (legislation and implementation)

N. 4 The distinction between «tasks» and «powers» in the title and in para. 2 is legally significant. Tasks designate the subject areas and fields of activity assigned to the Federal Council, while powers encompass the concrete possibilities for action and instruments for fulfilling tasks. This terminological differentiation is found consistently throughout the Constitution (cf. Art. 180–186 Federal Constitution).

#3. Elements of the Offence / Normative Content

#Paragraph 1 — Individual Tasks and Powers

N. 5 Lit. a — Supervision of the federal administration: The Federal Council supervises the federal administration and other bodies carrying out federal tasks. This supervisory competence encompasses the central federal administration (departments and federal offices), the decentralised federal administration (independent institutions and enterprises) as well as private parties insofar as they perform federal tasks. The supervision is hierarchical-administrative in nature and differs from parliamentary high-level supervision under Art. 169 Federal Constitution (→ Art. 169 Federal Constitution).

N. 6 Lit. b — Reporting: The Federal Council regularly reports to the Federal Assembly on its management as well as on the state of Switzerland. The reporting obligation is specified in the annual management report (Art. 144 Parliament Act) and in numerous special statutory reporting obligations. «Regularly» means not only periodically but also on an event-related basis in case of special occurrences.

N. 7 Lit. c — Elections: The Federal Council conducts elections that do not fall under the competence of another authority. This subsidiary electoral competence particularly concerns the election of senior management of the federal administration, the army leadership and other functionaries, insofar as no other electoral authority is designated. The most important electoral competences are regulated in the Federal Personnel Act and in special enactments.

N. 8 Lit. d — Appeals: The Federal Council handles appeals insofar as the law provides for it. This provision does not establish an independent right of appeal but requires a special statutory basis. The most important cases of application are appeals under Art. 72 ff. Administrative Procedure Act in areas where the Federal Council has ruled at first instance, as well as special appeal competences such as in public procurement law.

#Paragraph 2 — General Clause

N. 9 The law may assign further tasks and powers to the Federal Council. This delegation norm enables the formal legislator to assign additional competences to the Federal Council. The most important specification is found in the Government and Administration Organisation Act (GAOA), which comprehensively regulates the organisation and management of the Federal Council. Further significant transfers of competence are found in practically all areas of administrative law.

#4. Legal Consequences

N. 10 The tasks and powers listed in Art. 187 para. 1 Federal Constitution are constitutionally direct competences of the Federal Council. They do not require any further statutory basis but must be exercised within the framework of the Constitution and the laws (→ Art. 5 Federal Constitution). In supervision under lit. a, the Federal Council has powers to issue instructions, approve and revoke vis-à-vis the administration. Reporting under lit. b is a legal obligation whose violation can trigger political responsibility.

N. 11 The electoral competence under lit. c establishes a public law service relationship for the elected persons. Electoral decisions of the Federal Council can only be challenged to a limited extent since they constitute political discretionary decisions. In handling appeals under lit. d, the Federal Council is bound by procedural guarantees (→ Art. 29 Federal Constitution) and issues challengeable rulings.

#5. Controversial Issues

N. 12 In academic literature, it is disputed how far the supervisory competence under para. 1 lit. a extends with regard to autonomised administrative units. Häfelin/Haller/Keller/Thurnherr (Federal Constitutional Law, 10th ed. 2020, N 1456) advocate a broad interpretation according to which comprehensive supervision exists even for legally independent institutions. Tschannen (in: St. Gallen Commentary Federal Constitution, 4th ed. 2023, Art. 187 N 8) argues in contrast for a differentiated consideration depending on the degree of autonomy of the supervised unit. The Federal Court has not yet definitively addressed this question.

N. 13 The scope of the general clause in para. 2 is also controversially discussed. Ehrenzeller (St. Gallen Commentary Federal Constitution, 4th ed. 2023, Art. 187 N 15) emphasises that the transfer of competence can only occur through formal law and is materially limited by the constitutional order of competences. Biaggini (Federal Constitution Commentary, 2nd ed. 2017, Art. 187 N 7) sees in contrast a wide legislative scope for action as long as no other constitutional norms are violated.

#6. Practical Guidelines

N. 14 When applying Art. 187 Federal Constitution, it must always be examined whether a special statutory specification exists. The general tasks and powers under para. 1 take subsidiary precedence over specific regulations. In particular, the GAOA and the Government and Administration Organisation Ordinance contain detailed provisions on the exercise of Federal Council competences.

N. 15 In practice, the distinction between the administrative supervision of the Federal Council (Art. 187 para. 1 lit. a Federal Constitution) and parliamentary high-level supervision (Art. 169 Federal Constitution) is significant. While the Federal Council has direct powers to issue instructions, parliamentary control is limited to subsequent review and political sanctions. This distinction is particularly relevant in investigations and crisis management.

The case law on Art. 187 BV is limited due to the organizational nature of the provision. The Federal Court and the administrative courts have primarily dealt with partial aspects of the Federal Council's tasks and powers.

#Supervision of the Federal Administration (Para. 1 lit. a)

AU.2007.1_A (18 December 2007) The Federal Criminal Court clarified the relationship between Federal Council supervision and parliamentary supreme oversight. The administrative supervision of the Federal Council over decentralized administrative units such as the Federal Prosecutor's Office operates within a system of multi-level control.

«The Federal Assembly exercises supreme oversight over the Federal Council and the federal administration, the federal courts and other bodies responsible for tasks of the Confederation (Art. 169 para. 1 Cst.). [...] The information rights of parliamentary committees were given constitutional status with the Federal Constitution of 18 April 1999 and were strengthened in the sense that in case of conflict, the supervisory authority and not the supervised entity decides on their exercise.»

Judgment 1A.1/2009 (20 March 2009) The Federal Court confirmed that the Federal Council must be involved in the handling of mutual assistance requests to the extent necessary for the fulfilment of its supervisory duty. The Federal Council's supervisory competence also extends to mutual assistance procedures of the federal administration.

«This judgment is communicated in writing to the appellant, the Federal Office of Justice and the Federal Council.»

#Reporting (Para. 1 lit. b)

BGE 151 II 164 (Judgment 2C_871/2022, 28 August 2024) The Federal Court addressed the compatibility of Federal Council speeches in advance of votes with the broadcasting law requirement of diversity. Federal Council speeches to inform about voting recommendations are part of the constitutional reporting duty to the public.

«In terms of content, Federal Councillor Maurer in his speech predominantly to one-sidedly presented the arguments for the (supportive) position of the Federal Council and the Federal Assembly [...]. In contrast, however, the broadcast was also clearly recognizable as a Federal Council speech aimed at informing the public about the voting recommendation of the Federal Council and Parliament (and the decisive reasons for it).»

#Organizational Competence (Para. 2)

Expert Opinion 150000218 (15 April 2010) The Federal Council clarified its organizational competence under Art. 8 GOGA in conjunction with Art. 187 para. 2 Cst. The tasks and powers assigned to the Federal Council also include the organization of the federal administration, unless expressly limited.

«Art. 8 para. 1 of the Government and Administration Organisation Act (GOGA) empowers the Federal Council to determine the appropriate organization of the federal administration and to adapt it to circumstances. It may thereby deviate from organizational provisions of other federal acts; excepted are cases in which the Federal Assembly expressly limits the Federal Council's organizational competence.»

Expert Opinion 150000152 (1 November 2007) The Federal Council explained the scope of its supervisory authority over the Federal Prosecutor's Office. The administrative supervision of the Federal Council exists alongside the professional supervision of the courts and is limited to personnel and organizational matters.

«The Federal Criminal Court exercises professional supervision over the FPO, while administrative supervision is exercised by the Federal Council or the FDJP, to which the FPO is administratively assigned as a decentralized administrative unit. The Federal Prosecutor is elected by the Federal Council.»

#Elections (Para. 1 lit. c)

The case law on the Federal Council's electoral powers is sparse, as these primarily constitute administrative acts that are rarely challenged in court. The available decisions mainly concern procedural aspects of federal elections and votes.

#Appeal Procedures (Para. 1 lit. d)

The Federal Council's handling of appeals has been addressed in case law mainly in the context of special statutory provisions. Art. 187 para. 1 lit. d Cst. does not establish an independent right of appeal, but requires a legal basis.