The Federal Supreme Court and the other judicial authorities apply the federal acts and international law.
Art. 190 — Applicable law
#Overview
Art. 190 Cst. determines which law the courts and authorities in Switzerland must apply. The provision makes two types of law binding for all law-applying authorities: federal acts and international law.
Federal acts are laws enacted by Parliament in Bern. These include, for example, the Criminal Code, the Civil Code or the Employment Act. Even if such an act violates the Constitution, the courts must nevertheless apply it. They may find that the act is unconstitutional, but must still comply with it in the specific case.
International law comprises international treaties that Switzerland has concluded. Examples are the European Convention on Human Rights, the Geneva Refugee Convention or the Agreement on the Free Movement of Persons with the EU. These treaties generally take precedence over Swiss law.
A practical example: A court must apply a federal act even if it considers that this act restricts freedom of expression too severely. The court may point out in its judgment that the act is problematic. However, it cannot change the act – that is the responsibility of Parliament.
The rule has an important exception: In case of conflicts between federal acts and international law, international law usually takes precedence. This applies particularly to human rights. Only when Parliament consciously intended to violate an international treaty may the court apply the federal act.
Art. 190 Cst. ensures that all authorities in Switzerland judge according to the same rules. The provision strengthens legal certainty and prevents arbitrariness in the application of law.
#Doctrine
#1. Legislative History
N. 1 Art. 190 FC was adopted as a central provision on the hierarchy of legal sources and the binding nature for law-applying authorities in the framework of the total revision of the Federal Constitution in 1999. The provision continues the obligation of the Federal Supreme Court to federal acts already anchored under the old Federal Constitution of 1874 in Art. 113 para. 3 aFC (BBl 1997 I 1, 495). The preparatory materials emphasize that the formulation «authoritative» was deliberately chosen as a more open expression than the former «application requirement», without however changing anything in the material legal situation (BBl 1997 I 496).
N. 2 The constituent authority expressly held that Art. 190 FC does not establish an actual prohibition of review, but rather an application requirement. The courts may and should continue to examine the constitutionality of federal acts, but must apply them even when unconstitutionality is established (BBl 1997 I 497). This solution reflects the Swiss understanding of democracy with its strong confidence in the democratically legitimated legislature.
#2. Systematic Classification
N. 3 Art. 190 FC is systematically placed in the 5th Title of the Federal Constitution on the federal authorities, more precisely in the 3rd Chapter on the «Federal Supreme Court and other judicial authorities». The provision is closely linked to → Art. 189 FC, which regulates the competencies of the Federal Supreme Court, particularly with Art. 189 para. 4 FC concerning acts of the Federal Assembly and the Federal Council that are withdrawn from review by the Federal Supreme Court.
N. 4 The provision stands in tension with → Art. 5 FC (rule of law), → Art. 8 FC (equality before the law) and → Art. 35 FC (realization of fundamental rights). While these norms postulate the comprehensive binding of all state organs to the constitution and fundamental rights, Art. 190 FC limits this binding for formal federal acts. This tension is mitigated by the doctrine of «constitutional interpretation» (→ Art. 5 para. 4 FC).
#3. Elements of the Provision / Content of the Norm
N. 5 Federal acts: The term encompasses all formal acts enacted by the Federal Assembly in the ordinary legislative procedure according to Art. 163 ff. FC. According to prevailing doctrine (Ehrenzeller/Schindler/Schweizer/Vallender, SGK BV, Art. 190 N. 8; Waldmann/Belser/Epiney, BSK BV, Art. 190 N. 12), this includes both acts subject to referendum and urgent federal acts. However, ordinances of the Federal Council are not covered, even if they are based on a statutory delegation.
N. 6 International law: The term encompasses all international legal norms binding on Switzerland, regardless of their rank in international law. This includes international treaties, customary international law and general principles of international law (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 3642). Whether soft law instruments are also covered is controversially discussed (in the negative: Tschannen/Zimmerli/Müller, Allgemeines Verwaltungsrecht, 4th ed. 2014, § 11 N. 24).
N. 7 Authoritative: The formulation means according to unanimous opinion (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 2228; Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 1067), that the mentioned enactments must be applied mandatorily, even if they violate higher-ranking law. It is an application requirement, not a prohibition of review.
#4. Legal Consequences
N. 8 The application requirement has the consequence that law-applying authorities may not leave unconstitutional federal acts unapplied (BGE 136 I 65). They can and should establish the unconstitutionality and call upon the legislature for revision, but must apply the act in the concrete case. These «appeal decisions» have led to various legislative revisions in practice.
N. 9 In case of collisions between federal acts and international law, according to the so-called Schubert practice (BGE 99 Ib 39), the primacy of international law applies in principle, unless the legislature has consciously accepted the contradiction. This practice experienced important restrictions: In the case of human rights (BGE 125 II 417) and in the scope of application of the Free Movement Agreement CH-EU (BGE 142 II 35), it does not apply.
N. 10 Constitutional interpretation forms the most important instrument for conflict minimization. If a federal act allows several interpretations, the one compatible with the constitution must be chosen. This principle applies without restriction and is consistently applied by case law (BGE 143 III 65).
#5. Disputed Issues
N. 11 Scope of the application requirement: While prevailing doctrine (Ehrenzeller/Schindler/Schweizer/Vallender, SGK BV, Art. 190 N. 15; Häfelin/Haller/Keller/Thurnherr, op. cit., N. 2230) understands Art. 190 FC as an absolute application requirement, a minority opinion (Schefer, in: Waldmann/Belser/Epiney, BSK BV, Art. 190 N. 28) advocates for exceptions in cases of serious fundamental rights violations. This position could not prevail in case law.
N. 12 Schubert practice: The scope of the Schubert practice is highly disputed. Kälin/Künzli (in: Ehrenzeller et al., SGK BV, Art. 190 N. 22) advocate a restrictive application only in case of clear legislative intent. Schweizer (Die Schubert-Praxis, 2018, p. 234) demands its complete abandonment in favor of unrestricted primacy of international law. Case law maintains the practice but continuously restricts it.
N. 13 Relationship to Art. 139 para. 3 FC: It is controversial whether the hierarchy between constitution and international law discussed with the «Self-Determination Initiative» would modify Art. 190 FC. Biaggini (BV Kommentar, 2nd ed. 2017, Art. 190 N. 9) sees this as a breach contrary to the system, while Glaser (ZBl 2015, 319) recognizes a constitutional immanent limit to the primacy of international law.
#6. Practice Guidelines
N. 14 In the application of law, constitutional interpretation must always be examined first. Only when this encounters clear limits of wording does the application requirement take effect. Law-applying authorities should clearly identify and justify unconstitutionalities in order to signal reform needs to the legislature.
N. 15 In case of conflict between federal acts and international law, careful examination is required as to whether the Schubert practice is applicable. In the case of human rights guarantees, EU law and ius cogens, the primacy of international law always applies. The legislative intention to deviate from international law must clearly emerge from the preparatory materials; mere negligence is not sufficient.
N. 16 Cantonal authorities must note that Art. 190 FC binds them equally. They may not leave federal acts unapplied by invoking cantonal constitutional law. However, when applying federal acts that leave scope to the cantons, these must be filled in a constitutional manner (↔ Art. 49 FC).
#Case Law
#Principles of the Application Mandate
BGE 136 I 65 of 25 September 2009 The constitutional application mandate obliges the Federal Supreme Court and other law-applying authorities to apply federal acts even in cases of provisions that violate the constitution.
«According to Art. 190 FC, federal acts and international law are binding for the Federal Supreme Court and the other law-applying authorities. Thus, federal acts cannot be denied application either in the framework of abstract or concrete constitutional review. While this constitutes an application mandate and not a prohibition of review [...]; if such [unconstitutionality] is established, the act must nevertheless be applied.»
BGE 136 I 49 of 25 September 2009 The application mandate excludes constitutional review of cantonal regulations covered by federal law in the framework of abstract constitutional review.
«The constitutional application mandate of federal acts excludes the review of a cantonal regulation covered by federal law in the framework of abstract constitutional review, even if the federal act entered into force only one year later.»
#Relationship to International Law and the Schubert Practice
BGE 99 Ib 39 of 10 July 1973 (Schubert) Fundamental decision on the hierarchy between international law and subsequent federal law in cases of conscious conflict of norms.
«It is to be presumed that the federal legislator intended to comply with provisions of properly concluded state treaties, unless it had consciously accepted a potential conflict between a provision of domestic law and international law.»
BGE 125 II 417 of 26 November 1999 (PKK) Confirmation of the fundamental primacy of international law and limitation of the Schubert practice regarding human rights.
«In case of conflict, international law takes precedence in principle over domestic law, particularly when the international law norm serves the protection of human rights. [...] These international law principles are directly applicable in the Swiss legal order and bind not only the legislator, but all state organs.»
BGE 139 I 16 of 12 October 2012 Significance of Art. 190 FC in cases of constitutional provisions in conflict with international law and applicable federal law.
«In the case of a conflict of norms between international law and subsequent legislation, case law assumes in principle the primacy of international law; reserved according to the 'Schubert' practice is the case where the legislator has expressly accepted a conflict with international law.»
BGE 142 II 35 of 26 November 2015 No application of the Schubert practice in freedom of movement law between Switzerland and the EU.
«The so-called Schubert practice does not apply in freedom of movement law between Switzerland and the EU [...]. The customary international law principle pacta sunt servanda obliges Switzerland to fulfil its binding international law obligations.»
#Application in Specific Areas of Law
BGE 135 I 161 of 30 April 2009 Art. 190 FC regarding UN Covenant I and domestic legislation in the area of disability insurance.
«Art. 2 para. 2 UN Covenant I obliges the contracting states to progressively achieve the full realisation of the rights recognised in the Covenant, whereby they must employ all appropriate means, particularly legislative measures.»
BGE 143 V 9 of 13 January 2017 Application mandate regarding cantonal legislation in the area of supplementary benefits.
«Art. 190 FC does not oblige the cantons to set daily rates at institutions other than recognised nursing homes according to Art. 39 para. 3 HIA such that supplementary benefit recipients living there have no personal contribution to pay.»
BGE 138 II 524 of 19 September 2012 Conflict of norms between international law and domestic law in customs matters.
«A unilaterally extended national tax exemption for border traffic contradicts the purpose and aim of the Swiss-Italian border and pasture agreement of 1953 and is to be rejected as contrary to treaty.»
#Limits and Exceptions
BGE 146 III 25 of 6 November 2019 Significance of ECtHR judgments and their implementation in national law despite the application mandate.
«The ECtHR judgment Howald Moor and Others v. Switzerland of 11 March 2014 established a violation of Art. 6 no. 1 ECHR. The legislator maintained the system of double limitation periods in the framework of the revision of limitation law (entry into force on 1 January 2020).»
Judgment 2C_616/2020 of 7 August 2020 The Federal Supreme Court can only review federal acts for constitutionality incidentally, but must apply them.
«The Federal Supreme Court can in principle review federal decrees incidentally for their constitutional conformity. However, federal acts and international law are binding for the Federal Supreme Court and the other law-applying authorities (Art. 190 FC), even if they are unconstitutional; an application mandate prevails.»