#1. Legislative History

N. 1 The provision on the coming into force of revised constitutional provisions dates back to the total revision of the Federal Constitution in 1999. In the message on a new Federal Constitution of 20 November 1996 (BBl 1997 I 1), Art. 195 FC was conceived as a technical norm that regulates the formal coming into force of constitutional revisions. The constitutional framers deliberately refrained from complex coming-into-force provisions and opted for a clear, simple solution: Coming into force occurs upon acceptance by the People and the Cantons.

N. 2 The historical development shows that already under the old Federal Constitution of 1874, the principle applied that constitutional amendments come into force immediately after their acceptance. Art. 195 FC codifies this practice and creates legal certainty about the exact time of coming into force. The norm stands in the tradition of Swiss constitutional law, which grants immediate effect to the popular will.

#2. Systematic Classification

N. 3 Art. 195 FC forms, together with Art. 192–194 FC, the chapter on the revision of the Federal Constitution. The systematic position at the end of the revision provisions underscores the technical character of the provision. It supplements the substantive (Art. 193–194 FC) and procedural (Art. 192 FC) revision provisions with the temporal dimension.

N. 4 The provision is closely related to:

• → Art. 15 para. 3 FPA (Federal Act on Political Rights), which concretises the coming into force of constitutional amendments
• → Art. 196–197 FC (Transitional provisions), which may contain special temporal regulations for individual constitutional revisions
• → Art. 190 FC (applicable law), which establishes the duty of law-applying authorities to apply constitutional provisions that have come into force

#3. Elements of the Provision / Content of the Norm

N. 5 «Totally or partially revised Federal Constitution»: The norm covers both total revisions (Art. 193 FC) and partial revisions (Art. 194 FC) of the Federal Constitution. Not covered, however, are amendments to federal acts or other enactments, for which special coming-into-force regulations apply.

N. 6 «accepted by the People and the Cantons»: The double majority of People and Cantons is constitutive for coming into force. Acceptance occurs on voting day, not only with the official determination of the result. The decisive moment is the time of voting, as BGE 139 II 243 E. 8 clarifies.

N. 7 The norm contains no exceptions or reservations. Unlike federal acts (Art. 141 para. 1 lit. c FC), there is no suspensive effect through a referendum for constitutional revisions. The immediate effect is mandatory, provided the constitutional revision itself contains no deviating coming-into-force provision.

#4. Legal Consequences

N. 8 Immediate coming into force: Upon acceptance by the People and the Cantons, the constitutional amendment comes into force immediately. This applies regardless of publication in the Official Compilation (AS). The Federal Court confirmed in BGE 139 II 243 E. 8 that in the case of the second homes initiative, Art. 75b FC came into force already on voting day (11 March 2012).

N. 9 Direct applicability: The question of direct applicability (self-executing) is to be distinguished from coming into force. Not every constitutional provision that has come into force is directly applicable. With programmatic norms or legislative mandates, implementation by the legislature is often still required. Art. 195 FC regulates only the formal coming into force, not the substantive applicability.

N. 10 Transitional law: Special transitional provisions (Art. 196–197 FC) may modify the temporal effect. Thus, a constitutional revision may formally come into force according to Art. 195 FC, but materially take effect only at a later time. The Administrative Court of Graubünden clarified in its judgment R 2012/100 of 9 November 2012 that Art. 195 FC regulates the formal coming into force, while transitional provisions govern the practical application.

#5. Points of Contention

N. 11 Time of publication: In doctrine, it is undisputed that coming into force does not depend on publication in the AS. Ehrenzeller/Schindler/Schweizer/Vallender (St. Gallen Commentary FC, 4th ed. 2023, Art. 195 N 7) emphasise that publication has purely declaratory significance. Other commentators share this view and refer to the message on the Publication Act (BBl 2003 7729).

N. 12 Retroactivity: The question of retroactivity of constitutional provisions is controversially discussed. The prevailing doctrine (Häfelin/Haller/Keller/Thurnherr, Swiss Federal Constitutional Law, 10th ed. 2020, N 1854) assumes that constitutional provisions generally do not have retroactive effect, unless this is expressly provided. Rhinow/Schefer/Uebersax (Swiss Constitutional Law, 3rd ed. 2016, N 3456) differentiate between genuine and spurious retroactivity.

N. 13 Staggered coming into force: It is disputed whether the constitutional framers may provide for a staggered coming into force. Tschannen/Zimmerli/Müller (General Administrative Law, 4th ed. 2014, § 12 N 18) affirm this possibility with reference to constitutional autonomy. Müller/Schefer (Fundamental Rights in Switzerland, 4th ed. 2008, p. 45) express criticism, pointing to the democratic legitimation through immediate effect.

#6. Practice Notes

N. 14 For legal application: Authorities and courts must observe the new constitutional provision from voting day. This also applies to ongoing proceedings, unless transitional provisions provide otherwise. Practice shows that the immediate application must be observed particularly in building permit procedures (second homes initiative).

N. 15 For legislation: The legislature should keep the time span between the coming into force of the constitution and the coming into force of implementing law as short as possible when enacting implementing acts for new constitutional provisions. Transitional provisions in the constitution itself can help avoid legal uncertainties.

N. 16 For initiators: When formulating popular initiatives, it should be considered that the proposed constitutional provision comes into force immediately after acceptance. If a temporally staggered effect is to be achieved, corresponding transitional provisions must be included in the initiative text.

#Entry into force of constitutional revisions

BGE 139 II 243 of 22 May 2013 The Federal Supreme Court confirmed the immediate entry into force of constitutional amendments under Art. 195 Federal Constitution. In the case of the second homes initiative, Art. 75b Federal Constitution entered into force directly on 11 March 2012 with acceptance by the people and the cantons. Central consideration regarding the timing of entry into force:

«According to Art. 195 Federal Constitution and Art. 15 para. 3 of the Federal Act of 17 December 1976 on Political Rights (BPR; SR 161.1), amendments to the Federal Constitution enter into force upon acceptance by the people and the cantons, unless the proposal provides otherwise, and this is independent of the date of their publication in the Official Compilation (cf. Message of 22 October 2003 on the Publication Act, BBl 2003 7729).»

The judgment confirms that entry into force occurs already on the voting day, not only upon official publication. This enabled the immediate application of the new constitutional provisions for building permit procedures.

#Direct applicability after entry into force

Administrative Court of St. Gallen B 2013/11 of 30 April 2013 The St. Gallen Administrative Court clarified the practical effects of immediate entry into force: The constitutional provision that entered into force on 11 March 2012 was sufficiently determined for direct application by building authorities. Principle of immediate effectiveness:

«The constitutional provision on limiting the share of second homes entered into force with acceptance by the people and the cantons on 11 March 2012 and is sufficiently determined to be applied directly by building permit authorities.»

#Cantonal constitutional procedures

BGE 94 I 525 of 18 December 1968 In this early fundamental decision on the entry into force of constitutional amendments regarding the planned reunification of Basel-Stadt/Basel-Landschaft, the Federal Supreme Court held that the constitutional legislator is fundamentally free to determine the entry into force. The Federal Supreme Court reviews the interpretation of constitutional provisions on entry into force freely:

«The Federal Supreme Court generally reviews the interpretation of cantonal constitutional provisions, particularly in voting complaints under Art. 85 lit. a OG, fundamentally freely (BGE 91 I 239 consideration 3 and BGE 94 I 124 consideration 2, each with references to earlier judgments).»

The judgment shows that constitutional procedures require particular care in determining the timing of entry into force.

#Administrative court practice

Administrative Court of Bern 100.2013.31 of 2 September 2014 The Bernese Administrative Court applied Art. 195 Federal Constitution in a building permit case and confirmed the immediate entry into force of the second homes initiative:

«On 11 March 2012, Art. 75b Federal Constitution entered into force with the acceptance of the popular initiative 'Stop the endless construction of second homes!' (cf. Art. 195 Federal Constitution in connection with Art. 15 para. 3 of the Federal Act on Political Rights [BPR; SR 161.1]; BGE 139 II 243 consideration 8).»

This practice shows the consistent application of Art. 195 Federal Constitution by various administrative courts in concrete legal cases.

#Transitional law and staggered effect

Administrative Court of Grisons R 2012/100 of 9 November 2012 The Grisons Administrative Court explained the interaction between Art. 195 Federal Constitution and specific transitional provisions: While Art. 75b Federal Constitution entered into force immediately under Art. 195 Federal Constitution, the transitional provisions in Art. 197 no. 9 Federal Constitution regulated a staggered application for different case constellations.

«According to Art. 195 Federal Constitution, the wholly or partially revised Federal Constitution enters into force when it is accepted by the people and the cantons, and therefore the new constitutional law is applicable from 11 March 2012.»

This judgment clarifies that Art. 195 Federal Constitution regulates formal entry into force, while material transitional provisions can control the practical application in individual cases.