#1. Legislative History

N. 1 Art. 191 FC was created as part of the judicial reform that was adopted by the people and the cantons on 12 March 2000 and entered into force on 1 January 2007. The Federal Council Message on the total revision of federal judicial procedure of 28 February 2001 (BBl 2001 4202) formed the basis for the design of access to the Federal Supreme Court.

N. 2 The Constitutions of 1848 and 1874 still assigned individual subject-matter competences to the Federal Supreme Court according to the enumeration principle (Art. 101 of the Federal Constitution of 12.12.1848, BBl 1849 I 3; Art. 110–114 of the Federal Constitution of 29.05.1874, AS 1 1). The judicial reform departed from this system and introduced a comprehensive general clause.

N. 3 The core elements of access restrictions (threshold value, exclusion of certain subject areas, simplified procedure) were already anchored in the Constitution to provide clear guidelines to the legislature for the design of the Federal Supreme Court Act.

#2. Systematic Classification

N. 4 Art. 191 FC is located in Title 5 of the Federal Constitution on federal authorities and belongs to Chapter 4 on the Federal Supreme Court. The provision forms the counterpart to → Art. 189 FC (competences of the Federal Supreme Court) and → Art. 190 FC (applicable law).

N. 5 In the context of judicial guarantees, Art. 191 FC must be read in conjunction with → Art. 29a FC (right to legal remedy) and → Art. 30 FC (judicial proceedings). The provision concretizes the general right to legal remedy for the highest court instance.

N. 6 Internationally, Art. 191 FC is related to Art. 6 para. 1 ECHR (right to a fair trial) and Art. 13 ECHR (right to an effective remedy). The Federal Supreme Court qualifies as a «tribunal» within the meaning of the ECHR.

#3. Elements of the Offence / Normative Content

#3.1 Principle of Access (para. 1)

N. 7 Art. 191 para. 1 FC establishes the principle that access to the Federal Supreme Court must be guaranteed by law. This does not mean unlimited access, but rather an obligation on the legislature to design the legal remedy to the Federal Supreme Court in an appropriate manner (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1624).

N. 8 The guarantee obligation encompasses both formal access requirements (deadlines, form, procedural rules) and material requirements (grounds for appeal, standing to sue). The legislature has implemented this requirement in the Federal Supreme Court Act of 17 June 2005 (FSCA, SR 173.110).

#3.2 Threshold Value (para. 2)

N. 9 For disputes without a legal issue of fundamental importance, a threshold value may be provided. The qualification of a «legal issue of fundamental importance» is based on objective criteria, not on the subjective interest of the parties (Seiler/von Werdt/Güngerich/Oberholzer, Bundesgerichtsgesetz, 3rd ed. 2018, Art. 74 N 4).

N. 10 The legislature has established differentiated threshold values in Art. 74 FSCA: CHF 30,000 in property law matters (lit. a), CHF 30,000 in debt enforcement and bankruptcy matters (BGE 134 III 524 consid. 1.3), CHF 15,000 in employment and tenancy law disputes (lit. b).

#3.3 Exclusion of Certain Subject Areas (para. 3)

N. 11 The complete exclusion of access to the Federal Supreme Court is only permissible for «certain subject areas». These must be clearly defined and may not lead to a de facto abolition of the right to legal remedy (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3156).

N. 12 Art. 83 FSCA contains an exhaustive catalogue of excluded subject areas. It is disputed whether these exclusions are fully compatible with the right to legal remedy under Art. 29a FC and Art. 6 ECHR (critical: Kiener in St. Galler Kommentar, Art. 191 N 18).

#3.4 Simplified Procedure (para. 4)

N. 13 A simplified procedure may be provided for manifestly unfounded appeals. The legislature has implemented this in Art. 108 FSCA, whereby the division president may decide in single-judge proceedings.

N. 14 The «manifest lack of foundation» must be recognizable without in-depth examination. The case law applies Art. 108 FSCA restrictively in order to preserve the right to be heard (cf. judgments 2C_221/2024 of 2.5.2024; 2C_35/2024 of 19.1.2024).

#4. Legal Consequences

N. 15 The primary legal consequence of Art. 191 FC is the binding of the legislature in the design of federal jurisdiction. The FSCA must comply with constitutional requirements.

N. 16 For the Federal Supreme Court itself, Art. 191 FC in conjunction with → Art. 190 FC results in the obligation to apply even unconstitutional federal laws. This is paradigmatically shown in BGE 131 II 697 and BGE 131 II 710, where the Federal Supreme Court had to apply the provision despite finding Art. 11 para. 1 StHG unconstitutional.

N. 17 If a cantonal court violates the federally guaranteed access to the Federal Supreme Court, this constitutes a denial of justice that can be challenged by appeal (Art. 95 lit. a FSCA).

#5. Controversies

N. 18 In doctrine, it is disputed how far the exclusion possibility under para. 3 extends. While Kiener (St. Galler Kommentar, Art. 191 N 18) and Kley (in: Verfassungsrecht der Schweiz, 2020, § 44 N 28) demand a restrictive interpretation in light of Art. 29a FC, prevailing doctrine advocates for greater legislative freedom (Häfelin/Haller/Keller/Thurnherr, op. cit., N 1627; Seiler/von Werdt/Güngerich/Oberholzer, op. cit., Preliminary remarks on Art. 72ff. N 15).

N. 19 The compatibility of threshold values with the prohibition of discrimination is also controversially discussed. Critical voices see in the different treatment of wealthy and less wealthy litigants a de facto unequal treatment (Schweizer, Diskriminierung durch Streitwertgrenzen?, ZSR 2008 I 321). Prevailing doctrine considers the threshold values as objectively justified (Biaggini, BV Kommentar, 2nd ed. 2017, Art. 191 N 5).

N. 20 The scope of the simplified procedure under para. 4 is assessed differently. Part of doctrine demands very restrictive handling to protect procedural guarantees (Goldschmid, Das vereinfachte Verfahren nach Art. 108 BGG, 2013, p. 145ff.). Practice shows increasing application of the simplified procedure, which is partly criticized in doctrine.

#6. Practice Notes

N. 21 When calculating the value in dispute, all main and ancillary claims must be considered. Recurring benefits are to be valued at twenty times the annual amount according to Art. 51 para. 4 FSCA. The parties should substantively present the value in dispute in the legal brief.

N. 22 The qualification as a «legal issue of fundamental importance» within the meaning of Art. 74 para. 2 lit. a FSCA should be explicitly justified in the appeal. The Federal Supreme Court examines this requirement ex officio, but a substantiated presentation increases the prospects of success.

N. 23 For appeals in subject areas that are close to the exclusion catalogue of Art. 83 FSCA, special care is required in qualification. In case of doubt, the appeal should be filed within the deadline and admissibility should be argued subsidiarily.

N. 24 No legal remedy is available against decisions in simplified proceedings under Art. 108 FSCA. The appeal brief should therefore already contain all relevant arguments completely to avoid summary dismissal.

#Duty of Application and Binding Nature of Federal Acts on Courts

BGE 131 II 697 of 26 October 2005 Unconstitutional federal acts remain binding — Art. 191 Cst. prohibits constitution-conforming interpretation where the wording is clear. The Federal Supreme Court established the unconstitutionality of Art. 11 para. 1 HarTG but nevertheless applied the provision.

«A correction from the perspective of constitution-conforming interpretation is prohibited given the clear wording of the provision and the unambiguous intention of the historical legislature. Despite established unconstitutionality, the provision must be applied.»

BGE 131 II 710 of 26 October 2005
Confirmation of the duty of application for unconstitutional provisions. Even where federal statutory provisions violate the principle of legal equality, courts must apply federal law.

«According to Art. 191 Cst., the Federal Supreme Court remains bound by the applicable statutory provisions despite the possible unequal treatment of family members of Swiss citizens originating from non-EU or EFTA member states.»

BGE 129 II 249 of 17 January 2003 Binding nature even where international treaties have discriminatory effects. Art. 191 Cst. prevents equal treatment in family reunification law, although this would be constitutionally required.

«According to Art. 191 Cst., the Federal Supreme Court remains bound by the applicable statutory provisions (Art. 7 and 17 para. 2 FNIA) despite the possible unequal treatment of family members of Swiss citizens originating from non-EU or EFTA member states.»

#Threshold Value under the SCA

BGE 134 III 524 of 18 April 2008 Threshold value of CHF 30,000 in debt enforcement and bankruptcy matters. The Federal Supreme Court clarified the application of Art. 74 para. 1 lit. b SCA in summary proceedings.

«Decisions under Art. 265a para. 1 DEBA are final decisions in debt enforcement and bankruptcy matters and are subject to the threshold value under Art. 74 para. 1 lit. b SCA.»

BGE 135 III 470 of 10 April 2009 Qualification of claims for threshold value calculation. The collocation of employment law claims is treated as a debt enforcement matter rather than an employment law matter.

«The collocation of claims from employment law is treated as a debt enforcement matter rather than an employment law matter, which is why the threshold value is CHF 30,000.»

BGE 137 III 47 of 17 November 2010 Threshold value requirement for legal costs. The appeal is admissible if the originally disputed claims would reach the required threshold value.

«The appeal is admissible if the claims that remained disputed before the lower instance would reach the required threshold value, although the solely contested legal costs remain below the threshold value.»

#Simplified Proceedings for Manifestly Unfounded Appeals

Judgment 2C_221/2024 of 2 May 2024 Single-judge decision for manifestly unfounded appeals. The Division President decided in simplified proceedings under Art. 108 SCA on non-entry.

«The manifestly unfounded appeal is not considered, by decision of the Division President as single judge in simplified proceedings under Art. 108 SCA (para. 1 lit. b).»

Judgment 2C_35/2024 of 19 January 2024 Standard formulation for simplified proceedings. Simplified proceedings are also consistently applied in animal protection matters.

«The manifestly unfounded appeal is not considered, by decision of the Division President as single judge in simplified proceedings under Art. 108 SCA (para. 1 lit. b).»

Judgment 2C_11/2025 of 10 January 2025 Current practice of simplified proceedings. Art. 108 SCA also applies to administrative fines in education.

«The manifestly unfounded appeal is not considered, by decision of the Division President as single judge in simplified proceedings under Art. 108 SCA.»

#Access to the Federal Supreme Court in Specific Areas

BGE 130 I 26 of 27 November 2003 Standing to appeal in fundamental rights violations. The Federal Supreme Court examined the admissibility of constitutional appeals against admission restrictions in healthcare.

«The ordinance on admission restrictions for healthcare providers issued by the Federal Council based on Art. 55a HIA is constitutional.»

BGE 131 I 66 of 3 February 2005
Qualification of judges in federal criminal proceedings. The Federal Investigating Magistrates meet the requirements of Art. 31 para. 3 Cst. and Art. 5 no. 3 ECHR.

«The Federal Investigating Magistrates meet the requirements of Art. 31 para. 3 Cst. and Art. 5 no. 3 ECHR for an independent judicial person ordering detention.»

Judgment 2F_2/2020 of 5 April 2020 Revision proceedings and Art. 108 SCA. Revision requests can also be handled in simplified proceedings.

«The revision request is dismissed insofar as it is considered.»