1The Federal Supreme Court hears disputes concerning violations of:
federal law;
international law;
inter-cantonal law;
cantonal constitutional rights;
the autonomy of the communes and other cantonal guarantees in favour of public law corporations;
federal and cantonal provisions on political rights.
1bis ...
2It hears disputes between the Confederation and Cantons or between Cantons.
3The jurisdiction of the Federal Supreme Court may be extended by law.
4Acts of the Federal Assembly or the Federal Council may not be challenged in the Federal Supreme Court. Exceptions may be provided for by law.
Art. 189 BV - Jurisdiction of the Federal Supreme Court
#Overview
Art. 189 BV governs the most important jurisdictions of the Federal Supreme Court. The Federal Supreme Court is the supreme judicial authority of Switzerland (Art. 188 BV) and reviews whether authorities have correctly applied the law.
The Federal Supreme Court adjudicates appeals against decisions that violate various areas of law. These include federal law (Constitution, statutes, ordinances), international law (international treaties such as the ECHR), inter-cantonal law (agreements between cantons), cantonal fundamental rights and municipal autonomy. The Federal Supreme Court can also be called upon in cases of violations of political rights (voting and electoral rights).
Particularly important is the jurisdiction over disputes between the Confederation and the cantons or between cantons. Here the Federal Supreme Court decides as the sole instance (BGE 137 III 593).
Not all decisions can be challenged before the Federal Supreme Court. Acts of the Federal Assembly (Parliament) and the Federal Council cannot in principle be challenged (BGE 129 II 193, BGE 147 I 194). This protects the separation of powers (separation between judiciary and politics).
An example: A canton enacts a law that restricts freedom of expression. Affected persons can file an appeal with the Federal Supreme Court and claim that the cantonal law violates their fundamental right under Art. 16 BV. The Federal Supreme Court then examines whether the cantonal law is compatible with federal law.
The law may confer additional jurisdictions on the Federal Supreme Court (para. 3). The most important ones are regulated in the Federal Supreme Court Act (BGG) and the Administrative Court Act (VGG).
#Doctrine
#1. Legislative History
N. 1 Art. 189 Federal Constitution was created as part of the total revision of the Federal Constitution of 18 April 1999 and entered into force on 1 January 2000. The provision essentially adopted the competences of the Federal Supreme Court that already existed under the old Federal Constitution of 1874, but for the first time combined them in a single constitutional norm (BBl 1997 I 1, 514f.).
N. 2 The judicial reform of 12 March 2000, which entered into force on 1 January 2007, brought important changes. In particular, Art. 189 para. 1bis was repealed, which regulated the administrative court competences of the Federal Supreme Court. These were newly anchored at the legislative level in the Federal Supreme Court Act (FSCA) and the Federal Administrative Court Act (FACA) (BGE 138 I 61 E. 3; BBl 2001 4202, 4335ff.).
N. 3 With Art. 189 Federal Constitution, the constituent assembly pursued the goal of anchoring the essential competences of the Federal Supreme Court at the constitutional level and thereby strengthening the rule of law. At the same time, the legislature was to be left a certain scope for shaping the federal court's competences, which is expressed in para. 3 and 4 of the provision (BBl 1997 I 514).
#2. Systematic Classification
N. 4 Art. 189 Federal Constitution is located in Title 5 of the Federal Constitution on the federal authorities, in Chapter 4 on the Federal Supreme Court and the other judicial authorities. The norm complements Art. 188 Federal Constitution, which defines the position of the Federal Supreme Court as the supreme judicial authority of the Confederation.
N. 5 The provision is in close systematic connection with:
- → Art. 190 Federal Constitution (applicable law), which establishes the binding effect of federal acts and international law on the Federal Supreme Court
- → Art. 191 Federal Constitution (access to the Federal Supreme Court), which guarantees the right to access to the Federal Supreme Court
- ↔ Art. 29a Federal Constitution (guarantee of access to the courts), which ensures the right to adjudication by a judicial authority
- → Art. 5 Federal Constitution (principles of activity under the rule of law), in particular the principle of legality
N. 6 In the context of the federal state structure, the connection to Art. 3 Federal Constitution (cantons) and Art. 42 Federal Constitution (tasks of the Confederation) is significant. The competences for cantonal constitutional rights and municipal autonomy anchored in Art. 189 para. 1 lit. d and e Federal Constitution underscore the role of the Federal Supreme Court as guardian of federalism (BGE 143 I 272 E. 2.2).
#3. Elements of the Offence / Content of the Norm
Para. 1: Disputes concerning violations of law
N. 7 The term "disputes" encompasses all legal disputes, regardless of whether they concern civil, criminal or public law matters. Both individual violations of rights and abstract norm control proceedings are covered (Ehrenzeller/Schindler/Schweizer/Vallender, St. Galler Kommentar BV, 4th ed. 2023, Art. 189 N. 3).
N. 8 Lit. a (federal law): Encompasses the entire legal order of the Confederation, including the constitution, acts, ordinances and generally binding federal decrees. The most practically important competence of the Federal Supreme Court (Waldmann/Belser/Epiney, BSK BV, 2nd ed. 2024, Art. 189 N. 5).
N. 9 Lit. b (international law): Covers all international law norms binding on Switzerland, in particular international treaties, customary international law and general principles of law. BGE 145 IV 364 E. 3.3 emphasises the importance of this competence for reviewing the compatibility of Swiss law with international obligations.
N. 10 Lit. c (intercantonal law): Concerns treaties between cantons (concordats) as well as law enacted by intercantonal bodies. Of practical importance are in particular education concordats and police concordats (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 3489).
N. 11 Lit. d (cantonal constitutional rights): Encompasses all subjective rights anchored in cantonal constitutions, insofar as they go beyond the federal constitutional minimum standard. BGE 128 I 3 E. 1a confirms the independent reviewability of cantonal fundamental rights.
N. 12 Lit. e (municipal autonomy): Municipal autonomy is protected both by Art. 50 Federal Constitution and by cantonal constitutional law. BGE 143 I 272 E. 2.3 specifies that autonomy of other public law corporations (e.g. school municipalities) guaranteed by cantonal constitution is also covered.
N. 13 Lit. f (political rights): Covers violations of federal and cantonal provisions on political rights. The competence exists for both preliminary and subsequent legal protection (BGE 138 I 61 E. 3-4).
Para. 2: Disputes between the Confederation and cantons or between cantons
N. 14 This competence makes the Federal Supreme Court the sole instance for federalist competence disputes. Both public law and civil law disputes are covered (BGE 137 III 593 E. 1-4). The action is brought according to Art. 120 FSCA.
Para. 3: Legislative extension of competences
N. 15 The legislature may assign further competences to the Federal Supreme Court. Important examples are the competences under the Federal Supreme Court Act, the Federal Administrative Court Act and special legislative competences (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1684).
Para. 4: Immunity clause
N. 16 The provision basically protects acts of the Federal Assembly and the Federal Council from judicial review. This corresponds to the principle of separation of powers and respects the political discretion of the supreme federal authorities (BGE 129 II 193 E. 2.1; BGE 138 I 61 E. 2).
N. 17 The term "acts" encompasses all actions of the mentioned authorities, regardless of their legal form. Federal acts, federal decrees, ordinances of the Federal Council as well as individual case decisions are covered (Tschannen/Zimmerli/Müller, Allgemeines Verwaltungsrecht, 4th ed. 2014, § 54 N. 12).
#4. Legal Consequences
N. 18 Art. 189 Federal Constitution establishes the constitutional competence of the Federal Supreme Court. If one of the violations of law mentioned in para. 1 is lacking, the Federal Supreme Court is not competent to adjudicate. The norm thus has both competence-establishing and competence-limiting effect.
N. 19 The immunity clause in para. 4 leads to the inadmissibility of appeals against the mentioned acts. The Federal Supreme Court does not consider corresponding complaints. Exceptions exist only insofar as the law expressly provides for them, such as in the case of rulings by the Federal Council in federal personnel law (BGE 129 II 193 E. 2.1).
N. 20 In disputes between cantons or between the Confederation and cantons according to para. 2, the Federal Supreme Court decides as the sole instance. There is no cantonal hierarchy of instances (BGE 137 III 593).
#5. Controversial Issues
N. 21 Scope of the immunity clause: The scope of Art. 189 para. 4 Federal Constitution is disputed. While Rhinow/Schefer/Uebersax (Schweizerisches Verfassungsrecht, N. 3502) favour a restrictive interpretation, Ehrenzeller/Schindler/Schweizer/Vallender (St. Galler Kommentar, Art. 189 N. 24) argue for a broad interpretation. Case law tends towards an extensive interpretation (BGE 147 I 194 E. 2.2).
N. 22 Relationship to international law: The relationship between Art. 189 para. 1 lit. b Federal Constitution and Art. 190 Federal Constitution in conflicts between international law and federal law is controversially discussed. Waldmann/Belser/Epiney (BSK BV, Art. 189 N. 8) take the view that Art. 189 Federal Constitution only regulates competence, not the standard of review. Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, p. 982) see in Art. 189 para. 1 lit. b Federal Constitution an independent review competence.
N. 23 Justiciability of political rights: The scope of Art. 189 para. 1 lit. f Federal Constitution is disputed. Tschannen (in: Ehrenzeller et al., St. Galler Kommentar, Art. 189 N. 16) favours comprehensive justiciability. Kley (in: Waldmann et al., BSK BV, Art. 189 N. 14) argues for restraint in political discretionary matters.
#6. Practice Notes
N. 24 When challenging cantonal enactments, it must be examined whether a violation of federal law (lit. a), cantonal constitutional rights (lit. d) or municipal autonomy (lit. e) can be alleged. If such a connection point is lacking, federal supreme court review is excluded.
N. 25 Appeals against acts of the Federal Assembly or the Federal Council are hopeless from the outset, unless a statutory exception is given. This also applies to federal council ordinances and voting explanations (BGE 147 I 194).
N. 26 In intercantonal disputes, the action procedure according to Art. 120 FSCA must be observed. The affected cantons are parties, not the involved cantonal authorities (BGE 137 III 593 E. 5).
N. 27 Invocation of international law (lit. b) presupposes that an international law norm binding on Switzerland exists. Soft law and non-binding international standards do not suffice (Ehrenzeller/Schindler/Schweizer/Vallender, St. Galler Kommentar, Art. 189 N. 10).
#Case Law
#General Application and Interpretation
BGE 145 IV 364 of 22.5.2019
The Federal Supreme Court also adjudicates disputes concerning violations of international law pursuant to Art. 189 para. 1 lit. b Cst. The jurisdiction to review the compatibility of Swiss legal acts with international law is an essential component of the Federal Supreme Court's judicial activity.
«The Federal Supreme Court also adjudicates disputes concerning violations of international law (cons. 3.3). With the Agreement on the Free Movement of Persons (AFMP), Switzerland has essentially granted nationals of EU member states extensive and reciprocal rights to engage in gainful employment.»
#Inadmissibility of Challenging Acts of the Federal Assembly and Federal Council
BGE 129 II 193 of 21.2.2003
Decisions of the Federal Council cannot in principle be challenged before the Federal Supreme Court by way of administrative court appeal (Art. 189 para. 4 Cst.). This rule applies in particular to Federal Council decisions directly based on the Federal Constitution concerning entry bans and political expulsions.
«Decisions of the Federal Council cannot in principle be challenged before the Federal Supreme Court by way of administrative court appeal. An exception exists only with regard to Federal Council rulings in the field of employment relationships of federal personnel, insofar as federal law provides that the Federal Council acts as first instance.»
BGE 138 I 61 of 20.12.2011
According to Art. 189 para. 4 Cst., acts of the Federal Assembly and the Federal Council cannot in principle be challenged before the Federal Supreme Court. The Constitution grants the Federal Assembly and the Federal Council a sphere of discretion into which the judiciary shall not in principle interfere. However, the provision allows for exceptions.
«According to Art. 189 para. 4 Cst., acts of the Federal Assembly and the Federal Council cannot in principle be challenged before the Federal Supreme Court. The Constitution grants the Federal Assembly and the Federal Council a sphere of discretion into which the judiciary shall not in principle interfere.»
BGE 147 I 194 of 23.3.2021
The regulation of Art. 189 para. 4 Cst. also applies to appeals alleging violations of political rights. Thus, Federal Council voting explanations are also not directly challengeable. Only in exceptional cases of subsequent legal protection by way of reconsideration can acts of the Federal Assembly and the Federal Council also be included in the examination.
«According to Art. 189 para. 4 Cst., acts of the Federal Assembly and the Federal Council cannot be challenged before the Federal Supreme Court, unless the law provides for this. This also applies to appeals alleging violations of political rights.»
#Disputes between Cantons
BGE 137 III 593 of 24.10.2011
In disputes between cantons concerning jurisdiction for conducting an adult protection measure, an action to the Federal Supreme Court is admissible pursuant to Art. 189 para. 2 Cst. in conjunction with Art. 120 para. 1 lit. b FSCA. The Federal Supreme Court adjudicates as sole instance civil law and public law disputes between cantons.
«In disputes between cantons concerning jurisdiction for conducting an adult protection measure, an action to the Federal Supreme Court is admissible. The adult protection authorities at the place of the institution must assume the conduct of the adult protection measure when the person under protection leaves their previous place of residence, voluntarily enters the institution and declares in a manner recognizable to third parties the intention to remain permanently at the place of the institution.»
#Further Jurisdictions of the Federal Supreme Court
BGE 143 I 272 of 20.4.2017
The regulation of Art. 189 para. 1 lit. e Cst. (violation of municipal autonomy and other guarantees of the cantons in favor of public law corporations) also covers violations of constitutionally guaranteed rights of municipalities through cantonal legislation. This includes in particular municipal autonomy guaranteed by cantonal constitution.
«Art. 189 para. 1 lit. e Cst. covers violations of municipal autonomy and other guarantees of the cantons in favor of public law corporations. The cantonal constitution may grant municipalities more extensive rights than the Federal Constitution.»
#Relationship to Other Legal Remedies
BGE 138 I 378 of 3.7.2012
When reviewing cantonal enactments from the perspective of economic freedom, it must be noted that Art. 189 para. 4 Cst. excludes the challenging of acts of the Federal Assembly and the Federal Council. However, the review of cantonal norms for their compatibility with federal law remains possible.
«The review of cantonal enactments for their compatibility with economic freedom and other constitutional rights takes place within the framework of the appeal in public law matters. Art. 189 para. 4 Cst. does not preclude this, as these are cantonal and not Federal Council acts.»
#International Law Dimension
BGE 121 II 447 of 1995
The Federal Supreme Court has jurisdiction to adjudicate disputes concerning violations of international law (Art. 189 para. 1 lit. b Cst.). This also includes the review of Swiss legal acts for their compatibility with international obligations of Switzerland.
«Insofar as Art. 45 para. 4 VZV generally prescribes that the revoked foreign driving license shall not be handed over to the entitled person when leaving Switzerland if they have residence here, this regulation violates the prohibition of discrimination under Art. 1 para. 1 of the Agreement with Italy of 14 December 1962 on Social Security.»
#Constitutional Jurisdiction
BGE 145 I 1 of 29.10.2018
The jurisdiction of the Federal Supreme Court according to Art. 189 Cst. also extends to reviewing the admissibility of official interventions in the run-up to federal popular votes. The limits of Art. 189 para. 4 Cst. must be observed in this regard.
«With the appeal in voting rights matters, it can be alleged that a voting video published by the Federal Chancellery in the run-up to a federal popular vote violates voting freedom. The examination is limited to serious violations of constitutional requirements.»
#Cantonal Constitutional Rights
BGE 128 I 3 of 13.11.2001
The Federal Supreme Court adjudicates disputes concerning violations of cantonal constitutional rights pursuant to Art. 189 para. 1 lit. d Cst. This includes in particular fundamental rights guaranteed in cantonal constitutions, insofar as they go beyond the federal constitutional standard.
«The jurisdiction of the Federal Supreme Court to adjudicate violations of cantonal constitutional rights extends to all rights guaranteed by cantonal constitutions, including those that go beyond the standard of the Federal Constitution.»