Art. 197 FC — Transitional provisions

#Doctrine

#1. Legislative history

N. 1 The transitional provisions of Art. 197 FC do not have a uniform legislative history, as they were added successively with each constitutional amendment. The original version of 18 April 1999 contained the transitional provisions for the total revision of the Federal Constitution (BBl 1997 I 1 ff., esp. 627 ff.). The constitutional legislator recognised the need to establish clear rules for the transition from old to new constitutional law in order to avoid legal uncertainty and interpretational problems.

N. 2 Since then, Art. 197 FC has been extended by new paragraphs with each accepted popular initiative or constitutional amendment. Each transitional provision reflects the specific implementation requirements of the respective substantive constitutional norm. This led to the creation of transitional provisions for the deportation initiative (para. 8, BBl 2009 5097), the second homes initiative (para. 9, BBl 2008 8757), the OECD minimum taxation (para. 15, BBl 2022 2675) and most recently the 13th AHV pension (para. 16, BBl 2023 835).

#2. Systematic classification

N. 3 Art. 197 FC occupies a special position in the constitutional structure. The provision belongs to the final provisions (Title 3) and stands outside the substantive constitutional law. As intertemporal law, it regulates the temporal validity of new constitutional norms and creates bridges between old and new legal situations (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 144).

N. 4 The transitional provisions are closely related to → Art. 195 FC (Entry into force), which orders the immediate entry into force of constitutional amendments upon their acceptance by the people and cantons. Art. 197 FC modifies this rule for specific subject areas and creates differentiated transitional regimes. The provision is also connected to → Art. 190 FC, as it raises the question of the extent to which transitional provisions are directly applicable or require legislative concretisation.

#3. Elements of the offence / Normative content

N. 5 Art. 197 FC does not contain uniform elements of the offence, but rather a multitude of different transitional regulations. These can be classified into the following categories:

• Legislative mandates with deadline: Many paragraphs oblige the legislature to enact implementing provisions within a certain deadline (e.g. para. 8: five years for the deportation initiative; para. 12: two years for the burqa ban).

• Subsidiary ordinance competence: In case of default by the legislature, the Federal Council receives competence to enact implementing provisions (para. 9 para. 1 on the second homes initiative; para. 11 para. 2 on the mass immigration initiative).

• Directly applicable transitional rules: Individual provisions have immediate legal effects (para. 9 para. 2: nullity of second home permits; para. 16: entitlement to 13th AHV pension).

N. 6 The interpretation of transitional provisions follows the general rules of constitutional interpretation, with particular importance given to the purpose of the respective main norm. The Federal Court emphasises that transitional provisions must be interpreted in the context of the entire constitutional order and in observance of practical concordance (BGE 139 I 16 E. 4.2).

#4. Legal consequences

N. 7 The legal consequences of transitional provisions vary considerably:

• Procedural consequences: Expiry of deadlines triggers duties to act or subsidiary competences (e.g. ordinance competence of the Federal Council according to para. 9 para. 1).

• Substantive legal consequences: Direct legal claims (para. 16: 13th AHV pension) or prohibitions (para. 9 para. 2: building permit prohibition).

• Nullity consequences: Art. 197 para. 9 para. 2 FC is the only transitional provision that explicitly orders the nullity of administrative acts.

N. 8 The question of direct applicability must be examined separately for each transitional provision. The Federal Court affirmed the direct applicability of the second homes provision in BGE 139 II 243, but denied the direct applicability of the deportation initiative in BGE 139 I 16. The determining factors are the definiteness of the norm and compatibility with higher-ranking law.

#5. Controversies

N. 9 The central controversy concerns the direct applicability of transitional provisions. Epiney (Ausschaffungsinitiative und Freizügigkeitsabkommen, ZGRG 1/2010, p. 6 f.) and Reich (Verletzt die "Ausschaffungsinitiative" zwingende Bestimmungen des Völkerrechts?, ZSR 127/2008 I, p. 514 f.) advocate a restrictive position: transitional provisions that conflict with international law are not directly applicable. Hangartner (Unklarheiten bei Volksinitiativen, AJP 2011, p. 473) advocates for a differentiated approach taking into account practical concordance.

N. 10 Regarding the temporal scope of application, opinions diverge. Waldmann (Die Zweitwohnungsverordnung, Jusletter 10 December 2012, para. 21) took the position regarding the second homes initiative that the transitional provision only becomes effective from the explicitly mentioned date (1 January 2013). The Federal Court contradicted this in BGE 139 II 243: the substantive constitutional norm applies from entry into force, the transitional provision only intensifies the legal consequences.

N. 11 The hierarchy between transitional provision and main norm is disputed. Mastronardi (Verfassungslehre, 2007, N 784) sees transitional provisions as lex specialis to the main norm. Tschannen (Staatsrecht der Schweizerischen Eidgenossenschaft, 3rd ed. 2011, § 4 para. 38) emphasises, in contrast, the equal value of all constitutional norms and the necessity of practical concordance.

#6. Practice notes

N. 12 When applying transitional provisions, it must first be examined whether the provision itself or the associated main norm is directly applicable. The criteria are: sufficient definiteness, compatibility with higher-ranking law and suitability for immediate application without implementing legislation.

N. 13 For administrative practice, the following applies: if an implementation deadline expires without the legislature having acted, it must be examined whether subsidiary competences exist. The Federal Council has made use of such competences with the Second Homes Ordinance (SR 702) and the Ordinance on International Minimum Taxation (SR 641.71).

N. 14 In case of dispute, the case law of the Federal Court regarding the respective transitional provision must be consulted. The courts apply a constitution-conforming approach in interpretation that ensures practical concordance between different constitutional norms and conformity with international law. Private parties can only invoke sufficiently definite and directly applicable transitional provisions.

Art. 197 FC — Transitional provisions

#Case law

The transitional provisions of the Federal Constitution govern the temporal application of new constitutional provisions and create legal certainty in the transition from old to new legal situations. The case law has dealt with various paragraphs of Art. 197 FC, with questions of the direct applicability of new constitutional provisions and their scope being particularly prominent.

#I. Para. 1 — Accession to the UN

There is no relevant constitutional case law on Art. 197 para. 1 FC (Switzerland's accession to the UN). Switzerland joined the UN on 10 September 2002; the transitional provision has since become moot.

#II. Para. 2 — Transitional provision to Art. 62 (Education)

BGE 138 I 162 of 13 April 2012 Adequate special needs education for disabled children despite transitional provision. The Federal Supreme Court dealt with the right to special needs education following the reform of fiscal equalisation.

«In the field of special needs education, the cantons have considerable discretion. The minimum requirements under federal law only require an appropriate educational offering at public schools that is adequate based on experience, but not the optimal or most suitable education for a child.»

#III. Para. 3 — Transitional provision to Art. 83 (National roads)

There is no relevant constitutional case law on the transitional provision concerning national roads (para. 3). The provision primarily governs the cost allocation between the Confederation and the cantons for national road construction following the reform of fiscal equalisation.

#IV. Para. 4 — Transitional provision to Art. 112b (Promotion of integration of disabled persons)

There is no specific constitutional case law on the transitional provision concerning disability integration (para. 4). The provision governs the transfer of competence from disability insurance to the cantons.

#V. Para. 5 — Transitional provision to Art. 112c (Assistance for the elderly and disabled)

There is no relevant constitutional case law on the transitional provision concerning assistance for the elderly and disabled (para. 5). This provision has now been largely implemented.

#VI. Para. 6

This paragraph is repealed and without content.

#VII. Para. 7 — Transitional provision to Art. 120 (Genetic engineering in the non-human field)

There is no relevant constitutional case law on the transitional provision concerning the genetic engineering moratorium (para. 7). The five-year moratorium has expired.

#VIII. Para. 8 — Transitional provision to Art. 121 (Residence and permanent residence of foreign nationals)

BGE 139 I 16 of 12 October 2012 Direct applicability of the deportation initiative denied. The key decision on the transitional provision following the adoption of the deportation initiative.

«Paragraphs 3-6 of Art. 121, incorporated into the Federal Constitution with the deportation initiative on 28 November 2010, are not directly applicable based on an interpretation committed to practical concordance and due to insufficient specificity, but require implementation by the legislature.»

#IX. Para. 9 — Transitional provision to Art. 75b (Second homes)

BGE 139 II 243 of 22 May 2013 Direct applicability of the second home ban from 11 March 2012. Fundamental decision on the immediate effect of the second home initiative.

«Art. 75b para. 1 in connection with Art. 197 para. 9 para. 2 FC contains a directly applicable building permit ban for second homes in municipalities where the 20% share is reached or exceeded. This ban applies to all building permits that have been granted at first instance in the affected municipalities since 11 March 2012.»

BGE 140 II 25 of 6 December 2013 Procedural aspects of the second home ban. Confirmation of direct applicability in a zoning plan procedure.

«The initiation of an official zoning plan procedure constitutes an independently contestable final decision if cantonal law provides that certain objections can only be raised by appeal against the initiation decision.»

Judgment 1C_159/2012 of 14 December 2012 Application of the transitional provision in municipal planning procedures. The Federal Supreme Court specified the scope of the immediate building permit ban.

Judgment 1C_646/2012 of 22 May 2013 Retroactive effect on building permits issued before 1 January 2013. Distinction between contestable and void building permits depending on the timing of issuance.

#X. Para. 10 — Transitional provision to Art. 95 para. 3

There is no relevant case law on the transitional provision concerning private economic activity of the Confederation (para. 10).

#XI. Para. 11 — Transitional provision to Art. 121a (Management of immigration)

There is no specific constitutional case law on the transitional provision of the mass immigration initiative (para. 11). The provision governed the implementation deadline for renegotiating international treaties, but was effectively superseded by the implementation of the initiative in the «light domestic preference» solution.

#XII. Para. 12 — Transitional provision to Art. 10a (Prohibition of covering one's face)

There is no constitutional case law yet on the transitional provision of the covering ban (para. 12), as the corresponding implementing legislation is still being developed. The transitional provision sets a deadline of two years for implementing legislation.

Provisional case law on cantonal covering bans:

BGE 144 I 281 of 20 September 2018 Cantonal facial covering ban in Ticino assessed as constitutional. The Federal Supreme Court examined the constitutional admissibility of a cantonal covering ban.

«The Ticino laws on facial covering in public spaces provide for a conclusive list of exceptions to the facial covering ban. The ban thus formulated appears too broadly conceived from the perspective of freedom of expression.»

#XIII. Para. 13 — Transitional provision to Art. 117b (Nursing care)

There is no case law yet on the transitional provision concerning the nursing initiative (para. 13), as the provision was only adopted in 2021 and is in the implementation phase.

#XIV. Para. 14 — Transitional provision to Art. 118 para. 2 lit. b (Protection of health)

There is no case law yet on the transitional provision concerning tobacco products and electronic cigarettes (para. 14).

#XV. Para. 15 — Transitional provision to Art. 129a (Special taxation of large enterprise groups)

There is no case law yet on the transitional provision of the OECD minimum taxation (para. 15), as the provision was only adopted in 2023 and is in implementation.

Judgment 1C_565/2024 of 18 February 2025 Cantonal vote on tax law amendment in connection with minimum taxation. First procedural aspects of implementation at cantonal level.

#XVI. Para. 16 — Transitional provision to Art. 112 (13th AHV pension)

There is no specific case law yet on the transitional provision of the 13th AHV pension (para. 16), as the provision was only adopted in 2024. Implementation takes place gradually from the second calendar year after adoption.

General case law on AHV pension calculation:

BGE 135 III 20 of 4 September 2008 Non-seizability of cantonal supplementary benefits to the AHV. Fundamental considerations on the protection of AHV benefits.

BGE 144 III 407 of 6 June 2018 Absolute non-seizability of AHV pensions confirmed. The Federal Supreme Court reaffirmed the comprehensive protection of AHV pensions from seizure.