Art. 196 BV

#Doctrine

#1. Legislative History

N. 1 The transitional provisions of Art. 196 BV are the result of the total revision of the Federal Constitution in 1999. According to the will of the constitutional legislator, the new Constitution was intended to represent an "updating" of the law in force (FFB 1997 I 1). In the process, numerous constitutionally limited or expiring constitutional provisions had to be transferred into transitional law.

N. 2 The Dispatch on the new Federal Constitution of 20 November 1996 emphasised that transitional provisions should only be included where they are indispensable for ensuring a smooth transition from the old to the new law (FFB 1997 I 556). The system follows the order of the substantive provisions in the Constitution.

#2. Systematic Classification

N. 3 Art. 196 BV, together with Art. 197 BV (transitional provisions following adoption of the Federal Constitution), forms the core of constitutional transitional law. While Art. 196 BV contains the transitional provisions that were already in force when the new Federal Constitution entered into force on 1 January 2000, Art. 197 BV encompasses the transitional provisions that have been added since then through popular votes.

N. 4 The transitional provisions have the same rank as the other constitutional provisions (→ Art. 189 BV). As more specific norms, they take precedence over the general constitutional provisions (lex specialis). This applies in particular to the limited-term tax collection competences in Art. 196 nos. 13 and 14 BV, which temporally limit the unlimited competence bases in Art. 128 and 130 BV.

#3. Elements of the Offence / Normative Content

Alpine transit traffic (no. 1)

N. 5 The transitional provision to Art. 84 BV sets a ten-year deadline for the modal shift of goods transit traffic to rail from the adoption of the Alpine Initiative on 20 February 1994. This deadline expired on 20 February 2004 without the modal shift objective being fully achieved. The provision has lost its immediate effect, but remains relevant as an objective.

Lump-sum heavy vehicle fee (no. 2)

N. 6 This provision regulated the lump-sum heavy vehicle fee until the Heavy Vehicle Fee Act (HVFA) entered into force on 1 January 2001. Since then, the provision has become obsolete (para. 8). The detailed fee rates and implementation regulations served as a bridge between the old lump-sum and the new performance-related heavy vehicle fee (DRHVF).

Major railway projects (no. 3)

N. 7 The transitional provision defines the four major railway projects: NEAT, RAIL 2000, connection to the European high-performance network and noise protection. Financing is provided through the Railway Infrastructure Fund (→ Art. 87a BV). The provision applies until completion of the construction work and full repayment of the advance payment.

Time limit for direct federal tax (no. 13)

N. 8 The competence to levy direct federal tax is limited until the end of 2035. This limitation has been traditional since the introduction of the «defence tax» in 1940 and is intended to protect Switzerland's federalist structure. The Federal Supreme Court regularly emphasises the constitutional significance of this time limit (BGE 142 II 182 E. 5.5.1; BGE 151 II 101).

Time limit for value added tax (no. 14)

N. 9 Value added tax is also limited until the end of 2035. Paragraphs 2-5 regulate temporary rate increases for specific purposes: The additional IV financing (2011-2017, para. 2-3) has expired, the financing of railway infrastructure by 0.1 percentage points has applied since 2018 (para. 4-5).

#4. Legal Consequences

N. 10 The legal consequences of the transitional provisions are different:

• Obsolete provisions (e.g. no. 2 para. 8, no. 4) no longer have legal effects
• Time limits (no. 13, 14) limit the temporal validity of federal competences
• Transitional regulations (e.g. no. 5) oblige provisional application of law until the enactment of definitive regulations

N. 11 With regard to tax competences (no. 13 and 14), the Confederation's authority to levy taxes ends automatically when the deadline expires. An extension requires a constitutional amendment with mandatory referendum (→ Art. 140 para. 1 lit. a BV).

#5. Points of Controversy

N. 12 In legal doctrine, it is disputed whether the modal shift deadline in no. 1 represents a justiciable obligation or merely a political objective. Häfelin/Haller/Keller/Thurnherr (Federal Constitutional Law, 10th ed. 2020, N 1456a) qualify it as a programmatic norm without direct enforceability. Griffel (in: St. Gallen Commentary BV, 4th ed. 2023, Art. 84 N 15) sees, by contrast, a constitutional obligation of the Confederation to achieve the objective.

N. 13 Regarding the mutual recognition of educational qualifications (no. 5), there is agreement that until the enactment of the Internal Market Act, there was a directly applicable obligation of the cantons. The Federal Supreme Court confirmed this in BGE 130 I 26 E. 3.1. Only the scope of the recognition obligation for regulated professions was disputed.

#6. Practical Guidance

N. 14 The following aspects are central for the application of law:

• For the tax limitations (no. 13, 14), the expiry date of 31.12.2035 must be observed
• Obsolete transitional provisions may no longer be applied
• NEAT financing (no. 3) remains relevant until complete repayment

N. 15 The periodic updating of the transitional provisions is carried out through formal constitutional revision. Expired provisions are marked with the footnote «Repealed» but remain visible in the constitutional text. This serves legal certainty and historical traceability.

Art. 196 BV

#Case Law

The case law on Art. 196 BV demonstrates the practical application of the various transitional provisions by the courts. The decisions focus primarily on the time-limited collection of direct federal tax, the obligation for mutual recognition of educational qualifications, and procedural aspects of the major railway projects.

#Time Limitation of Direct Federal Tax (Art. 196 No. 13 BV)

BGE 142 II 182 of 1 January 2016 The Federal Supreme Court clarified the territorial jurisdiction for federal tax collection in case of change of canton and emphasized the constitutional foundations of direct federal tax. The decision confirms the importance of Art. 196 No. 13 BV for the time limitation of the tax collection authority.

«The Confederation has the authority, currently limited until the end of 2035 (Art. 42 para. 1 in conjunction with Art. 128 and Art. 196 No. 13 BV), to levy a 'direct tax' (thus Art. 128 para. 1 BV). This is 'to be assessed and collected by the cantons'.»

BGE 151 II 101 of 1 January 2025
The Federal Supreme Court clarified the reversal in cases of incompetent collection of direct federal tax and referred to the constitutional time limitation. The decision shows the practical effects of the «mandatory law» of the cantons for tax collection within the framework of the Confederation's time-limited competence.

«The Confederation has the authority, currently limited until the end of 2035 (Art. 42 para. 1 in conjunction with Art. 128 and Art. 196 No. 13 BV), to levy a 'direct tax' (thus Art. 128 para. 1 BV).»

#Mutual Recognition of Educational Qualifications (Art. 196 No. 5 BV)

BGE 130 I 26 of 27 November 2003
The Federal Supreme Court examined admission restrictions for service providers to practice at the expense of mandatory health insurance under the aspect of the transitional provision to Art. 95 BV. The decision clarifies the scope of the transitional obligation for mutual recognition of educational qualifications.

«According to Art. 95 para. 2 sentence 2 BV, the Confederation guarantees that persons with scientific training or a federal, cantonal or cantonally recognised educational qualification may practice their profession throughout Switzerland. Until the enactment of the corresponding federal legislation, the cantons are obliged to mutually recognise educational qualifications (Art. 196 No. 5 BV).»

#Major Railway Projects and NEAT (Art. 196 No. 3 BV)

BGE 131 II 581 of 1 January 2005
The Federal Supreme Court decided on a railway law planning approval procedure for a detailed project of the New Railway Link through the Alps (NEAT). The decision shows the practical implementation of the constitutionally anchored major railway projects in concrete approval procedures.

«At issue is a decision on a construction project of the New Railway Link through the Alps (NEAT), which was issued by DETEC as the planning approval authority for major projects.»

BVGE 2018 III/3 of 24 September 2018
The Federal Administrative Court dealt with the heavy vehicle fee in connection with the financing of major railway projects. The decision clarifies the connection between the flat-rate heavy vehicle fee and the financing of NEAT projects according to the original version of Art. 196 No. 3 BV.

«Furthermore, the revenue from the HVF also serves the realisation of certain major railway projects (financing objective according to Art. 87a para. 2 lit. a BV [previously: Art. 196 No. 3 para. 2 lit. b and para. 5 BV] or Art. 19 para. 2 HVF Act).»

#Procedural Aspects

The case law shows that the transitional provisions of Art. 196 BV have not only substantive legal significance, but also have procedural consequences. This applies in particular to the time limitation of competences and the transitional obligations of the cantons. In doing so, the courts apply the general constitutional principles such as the principle of legality and the federal loyalty obligation.

The temporal limitation of various transitional regulations means that some provisions have lost their practical relevance (e.g., Art. 196 No. 2 para. 8 BV until the entry into force of the HVF Act), while others remain applicable (e.g., the time limitation of direct federal tax until the end of 2035).