The Cantons are sovereign except to the extent that their sovereignty is limited by the Federal Constitution. They exercise all rights that are not vested in the Confederation.
Art. 3 BV — Cantons
#Overview
Article 3 of the Federal Constitution regulates the division of tasks between the Confederation and the 26 cantons. It establishes the fundamental principle of Swiss federalism (form of state with divided competences).
The cantons have a subsidiary general competence. This means: all state tasks belong in principle to the cantons, unless the Federal Constitution expressly transfers them to the Confederation. The Confederation may only act if a constitutional provision gives it permission to do so. The cantons are sovereign within their areas of competence and can independently enact laws and shape policy.
All citizens and all authorities are affected. Depending on the area of responsibility, private individuals turn to cantonal or federal authorities. In legal disputes, courts must examine whether the Confederation or the canton has jurisdiction.
The most important legal consequence is the seamless distribution of competences: every state task belongs either to the Confederation or to the cantons. In cases of uncertainty, the presumption is in favour of the cantons. They do not have to prove their jurisdiction, but the Confederation must demonstrate that it has competence.
A concrete example: The education system is regulated in principle at cantonal level (curricula, school organisation, teacher training). The Confederation can only act in special areas for which the Constitution gives it competence, such as vocational education and training or universities. New areas such as the digitalisation of schools automatically fall under cantonal jurisdiction, as long as no constitutional amendment assigns them to the Confederation.
However, cantonal sovereignty is not absolute, but is limited by the Federal Constitution. The cantons must respect fundamental rights, apply federal law and respect obligations under international law.
Art. 3 FC — Cantons
#Doctrine
#1. Legislative History
N. 1 Art. 3 FC is the foundational constitutional norm of Swiss federalism and has displayed remarkable historical continuity since 1848. Rohner/Vokinger, Art. 3 FC (Onlinekommentar, 2024) describe it as the «Grundnorm» [basic norm] of the federal state. The provision traces back to the Act of Mediation of 1803, which constituted Switzerland as a confederation of states. Art. 12 of Title 20 of the Act of Mediation read: «The cantons exercise all power not expressly transferred to the Confederation.» The nearly identical formulation found its way into Art. 3 FC (1848): «The cantons are sovereign insofar as their sovereignty is not limited by the Federal Constitution, and, as such, exercise all rights which are not conferred on the Confederation.»
N. 2 The FC of 1874 left Art. 3 unchanged. It was under that version that the principle «federal law prevails over cantonal law» developed — originally grounded by the Federal Supreme Court in Art. 2 of the Transitional Provisions of the FC (1874) and only enshrined in positive law with the FC 1999 in Art. 49 para. 1 FC (→ Art. 49 FC).
N. 3 In the course of the total revision of 1999, the Federal Council proposed subdividing Art. 3 into three paragraphs: para. 1 on cantonal sovereignty, para. 2 on the division of tasks between the Confederation and the cantons, and para. 3 on cantonal participation in federal decision-making (BBl 1997 I 129 f.). The explanatory report to the preliminary draft of 1995 stated that, while the description of the cantons as «sovereign» states no longer corresponded to contemporary constitutional doctrine, the designation as «member states within the federal state» appeared too weak for the purposes of updating; the connection with tradition argued in favour of retaining the term. In the parliamentary deliberations, the two chambers agreed during the conciliation procedure to revert, for reasons of historical continuity, to the original wording of 1848 (AB 1998 S 152, speech by Aeby as rapporteur; AB 1998 S 408). Paragraphs 2 and 3 of the Federal Council's draft were relocated to later articles (→ Art. 44–47 FC). All changes from the pre-revision state are thus purely editorial in nature; the substantive content of the provision has remained unchanged since 1848.
N. 4 The Federal Council's Message described Art. 3 as the «foundational norm of distinctly Swiss federalism» and emphasised that, in addition to express competences, unwritten competences arising by virtue of the federal structure («inherent powers») also exist (BBl 1997 I 130). The NFA reform of 2004 introduced Art. 5a FC (subsidiarity) and Art. 43a FC into the Constitution — provisions whose content had previously been derived in part from Art. 3 FC.
#2. Systematic Classification
N. 5 Art. 3 FC stands at the beginning of the third section of the first title («Confederation and Cantons») and constitutes the foundational federal norm. It is to be characterised as an organisational and competence norm, not as a fundamental right; it does not confer subjective defensive rights on citizens but governs the vertical division of tasks between the Confederation and the cantons. Biaggini, BSK FC, Art. 3 N. 1 describes it as a structural principle of the federal state.
N. 6 The provision contains two inseparably linked elements: the sovereignty clause («The cantons are sovereign insofar as their sovereignty is not limited by the Federal Constitution») and the competence-allocation clause («they exercise all rights which are not conferred on the Confederation»). Rohner/Vokinger, Art. 3 FC N. 2 (Onlinekommentar, 2024) characterise the sovereignty clause as the «inner justification» of the competence-allocation clause. The allocation of competences is the «formal-constructive means» (Imboden, Föderalismus, p. 180) by which the federal equilibrium is secured.
N. 7 Art. 3 FC stands in close mutual relationship with: ↔ Art. 42–43 FC (tasks of the Confederation and the cantons), ↔ Art. 44–47 FC (cooperation between the Confederation and the cantons, participation, cantonal autonomy), ↔ Art. 49 FC (supremacy of federal law), → Art. 5a FC (principle of subsidiarity), → Art. 43a FC (principles governing the assignment of tasks), → Art. 190 FC (binding nature of federal statutes and international treaties). The catalogues of competences in Art. 54–135 FC are leges speciales in relation to the cantons' residual general competence.
#3. Elements of the Provision / Normative Content
A. Sovereignty Clause (First Clause)
N. 8 The term «sovereign» is not to be understood in its absolute, public international law sense. According to the explanatory report to the preliminary draft of 1995, the designation no longer «corresponds to contemporary constitutional doctrine» but was retained for reasons of historical continuity. Legal scholarship is divided on whether cantons can be «sovereign» at all (→ Section 5). The prevailing interpretation understands «sovereignty» in the sense of a limited, constitutionally guaranteed capacity for democratic self-governance: Rohner/Vokinger, Art. 3 FC N. 27–28 (Onlinekommentar, 2024) note that the cantons are «communities of limited sovereignty» as long as they possess their own competences and scope for democratic self-governance.
N. 9 The guarantee of cantonal sovereignty encompasses the organisational autonomy, legislative autonomy, and enforcement autonomy of the cantons. Within their sphere of competence, the cantons may also pursue objectives different from those of the Confederation; a mere conflict of objectives between cantonal and federal law does not render the cantonal law inconsistent with federal law (BGE 122 I 70 E. 2a). On police power as the core content of cantonal sovereignty: → Art. 3 FC in conjunction with Art. 36 FC.
N. 10 The sovereignty clause has practical legal significance insofar as it allocates the burden of proof in competence disputes: in the event of a dispute, the Confederation must demonstrate its claimed jurisdiction from the Federal Constitution. If that demonstration fails, legislative competence remains with the cantons by virtue of their residual general competence (Rohner/Vokinger, Art. 3 FC N. 26, Onlinekommentar, 2024; Biaggini, BSK FC, Art. 3 N. 16).
B. Competence-Allocation Clause (Second Clause)
N. 11 The second clause enshrines the principle of residual general competence of the cantons: all rights not conferred on the Confederation are vested in the cantons. The Confederation, by contrast, possesses only those competences expressly conferred on it by the Federal Constitution (enumeration principle / principle of specific attribution). The Federal Supreme Court confirmed this in BGE 140 I 176 E. 7.1: «Pursuant to Art. 3 FC (in conjunction with Art. 42 FC), the principle applies that the cantons exercise all rights not conferred on the Confederation. Accordingly, a residual general competence of the cantons exists; everything that does not fall within the Confederation's sphere of competence remains within cantonal jurisdiction.»
N. 12 Constitutional assignments of competence to the cantons (e.g. Art. 62 para. 1 FC) are purely declaratory in nature, since the cantons already hold these powers by virtue of their residual general competence. «New» regulatory subjects not assigned to the Confederation by the FC fall automatically within cantonal jurisdiction (Judgment 2C_1076/2012 of 27 March 2014, E. 7.1).
N. 13 The competences assigned to the Confederation can be systematised along two dimensions: according to their substantive scope (comprehensive competences, fragmentary competences, framework/outline competences) and according to their effect on cantonal sovereignty (concurrent competences with subsequent derogatory effect, exclusive competences with original derogatory effect, parallel competences with no derogatory effect). The comprehensive and concurrent federal competence is the standard case (Biaggini, BSK FC, Art. 3 N. 51). Exclusive competences — whose establishment immediately displaces cantonal law — are rare (examples: Art. 54 FC [foreign affairs], Art. 99 FC [monetary system and coinage]).
N. 14 For as long and to the extent that the federal legislature has not exhausted a concurrent competence, the cantons remain competent without any need for a delegation from federal law. The Federal Supreme Court stated in BGE 122 I 70 E. 2a:
«The cantons are sovereign insofar as their sovereignty is not limited by the Federal Constitution. They possess original legislative competence, which is superseded only to the extent that the Confederation is either exclusively competent, with originally derogatory effect, or has made conclusive use of its competence in a field where it is concurrently competent, with subsequently derogatory effect.»
N. 15 The distinction between conclusive and non-conclusive federal regulation requires careful interpretation. An indication of conclusive regulation exists where the federal legislation has comprehensively and exhaustively ordered a particular subject matter with respect to its specific aspects (BGE 122 I 70 E. 3a on aviation law). Where federal law does not conclusively regulate a legal question, a cumulation of competences exists: cantonal and federal law are applicable cumulatively to the same facts without a competence conflict arising (BGE 122 I 70 E. 3b: «In such a case, cantonal law does not govern the same legal question as federal law»).
N. 16 Exceptionally, implied competences of the Confederation may also result from interpretation: competences «by virtue of subject-matter nexus» (implied powers) follow from the necessity of being able to discharge an explicitly assigned task. Competences «by virtue of the federal structure» (inherent powers) are derived from the federal state principle itself. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1084 ff.; Tschannen, Staatsrecht, 5th ed. 2021, N. 749 ff.
C. Executive Federalism
N. 17 A legislative competence of the Confederation generally includes the competence to implement the relevant law. However, Art. 46 FC establishes the presumption that federal law is implemented by the cantons (executive federalism). Within the scope of implementation, the cantons may themselves determine the mode of applying federal requirements — taking into account local practical constraints. The limit is Art. 49 para. 1 FC: cantonal law must not conflict with the spirit and purpose of federal requirements (→ Art. 49 FC). The Federal Supreme Court has given concrete expression to this in the area of direct federal taxation: BGE 142 II 182 clarifies that administrative instructions issued by the Federal Tax Administration that deviate from the statutory competence order of the cantons are of no effect.
#4. Legal Consequences
N. 18 Art. 3 FC produces three principal legal consequences:
(a) Protective function for cantonal norm-setting autonomy: Cantonal law in areas where the Confederation has not exhausted its competence is valid and applicable even without express delegation by federal law. Cantonal law enacted within the scope of competence may be applied to facts that are simultaneously partly governed by federal law (BGE 129 IV 276 E. 2.1: the cantons are entitled to make violations of their administrative law enactments punishable, to the extent that legislative competence over the relevant subject matter is vested in them under Art. 3 FC).
(b) Allocation of the burden of proof: In competence disputes, the Confederation bears the burden of proving that it is claiming a jurisdiction that is vested in it. The residual general competence of the cantons applies automatically where the Confederation is unable to demonstrate a constitutional basis for its measure.
(c) Interpretive rule: Art. 3 FC requires a restrained and system-consistent interpretation of federal competences. An expansive interpretation of federal competences that violates the principle of specific attribution is incompatible with Art. 3 FC. However, Art. 190 FC binds the Federal Supreme Court to enacted federal statutes; judicial protection of cantonal interests is therefore limited (↔ Art. 190 FC).
N. 19 Art. 3 FC is not directly justiciable as such in the sense that it confers subjective rights on citizens. Violations of the principle of specific attribution by the federal legislature may lead the Federal Supreme Court to characterise the relevant federal statute as unconstitutional; it cannot, however, annul the statute by virtue of Art. 190 FC. Cantonal enactments, by contrast, are subject to abstract norm review; the Federal Supreme Court annuls them only where they cannot be interpreted in conformity with the Constitution (BGE 122 I 70 E. 5).
#5. Disputed Questions
N. 20 Dispute over the concept of sovereignty. The term «sovereign» in Art. 3 FC is contested in legal scholarship. The historical and conceptual debate is characterised by opposing positions: Fleiner/Giacometti, Schweizerisches Bundesstaatsrecht (1949), pp. 44 ff. argued that the cantons, as members of the federal state, are not sovereign states but «self-governing bodies of a special kind»; sovereignty rests with the Confederation alone. By contrast, the theory of divided sovereignty (originating with Georg Waitz, «Das Wesen des Bundesstaates», 1853) maintains that both the Confederation and the cantons are sovereign within their respective spheres of competence. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 941 ff. find that Art. 3 FC contains a «constitutionally contradictory formulation». Biaggini, BSK FC, Art. 3 N. 77 ff. rejects the term as substantively inaccurate. Rohner/Vokinger, Art. 3 FC N. 27 (Onlinekommentar, 2024), by contrast, hold that the concept of sovereignty is to be understood as a limited capacity for democratic self-governance and thus retains its function — criticism of the wording does not alter the functional significance of the provision. Schweizer, SGK FC, Art. 3 N. 5 ff. (4th ed. 2023) likewise advocates a restrictive view.
N. 21 Presumption of competence in favour of the cantons. It is disputed whether Art. 3 FC establishes a «presumption of competence» in favour of the cantons. Part of judicial practice and legal scholarship answers this in the affirmative (e.g. VPB 1981 No. 49, p. 279; Tiefenthal, Kantonales Polizeirecht, N. 51). Biaggini, BSK FC, Art. 3 N. 16, 30 and Rohner/Vokinger, Art. 3 FC N. 34 (Onlinekommentar, 2024) reject the concept of a «presumption»: the question of whether a regulatory subject belongs to the Confederation or the cantons is a question of law to be resolved by interpretation, not by a presumption rule. Art. 3 FC establishes a residual general competence — in cases of doubt, competence remains with the cantons because the Confederation has been unable to demonstrate its jurisdiction, not because a presumption applies.
N. 22 Conclusive federal regulation and residual cantonal competence. Of particular practical significance is the question of when a federal regulation is to be characterised as «conclusive» and thereby displaces residual cantonal competence. The Federal Supreme Court clarified in BGE 122 I 70 E. 4 that the fact that the Confederation «takes into account, in the course of its activities, certain aspects that are in principle within cantonal jurisdiction, does not in principle preclude the corresponding cantonal competence». For a regulation to be deemed conclusive, it is insufficient that the Confederation has touched upon a subject matter; what is required is a clear federal regulation that expressly or by its purport displaces cantonal law. The precise distinction between a competence conflict (mutual exclusion) and a cumulation of competences (parallel applicability) remains contested.
N. 23 Federal comity as a limit on federal legislation. The Federal Supreme Court held in BGE 125 II 152 E. 4 bb that the principle of federal comity has no independent legal significance beyond the Constitution and statute: the cantons cannot derive from it a right, as against the Confederation, to continue to hold a previously tolerated competence — even one exercised over many years — where that competence proves to be contrary to federal law. Saladin, Komm. aBV, Art. 3 N. 24–36 and Kölz, ZBl 81/1980, pp. 145 ff. discussed federal comity as a constitutional principle, but the Federal Supreme Court has rejected any legally enforceable effect.
N. 24 Inherent powers and implied powers. The scope of implied federal competences is disputed. While Biaggini, BSK FC, Art. 3 N. 34 f.; Schweizer, SGK FC, Art. 3 N. 14 f. (4th ed. 2023); and Tschannen, Staatsrecht, 5th ed. 2021, N. 749 ff. recognise both types of competence, Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1084 ff. urge caution: any expansive interpretation beyond the wording of a federal competence stands in too great tension with the principle of specific attribution and the residual general competence of the cantons in the absence of a convincing systematic justification.
#6. Practical Notes
N. 25 When examining whether a cantonal enactment is compatible with federal law, the first step is to determine the type of federal competence in question (exclusive, concurrent, or parallel). Exclusive competences displace cantonal law by force of the Constitution itself; in the case of concurrent competences, a second step is required to determine whether the federal legislature has made conclusive use of its competence. Only if this question is answered in the affirmative does cantonal law yield to federal law (Art. 49 FC).
N. 26 The decisive test for a conclusive federal regulation is not merely the existence of a federal regulation in the relevant area, but whether federal law has exhaustively ordered the legal question in point — not merely the subject-matter area as a whole. Cantonal law remains permissible in any event to the extent that it addresses different legal questions from federal law, does not conflict with the spirit and purpose of federal law, and does not impair or frustrate federal objectives (BGE 122 I 70 E. 2a). Cantonal norms relating to police, spatial planning, nature conservation, and taxation may remain valid even in areas of comprehensive federal competence, provided they «do not govern the same legal question» as federal law (BGE 122 I 70 E. 3b).
N. 27 The original cantonal power of taxation derives directly from Art. 3 FC: types of taxes not expressly reserved to the Confederation by the Federal Constitution (→ Art. 128, 130, 132, 134 FC) and which do not violate any federal law limits may be autonomously structured by the cantons and municipalities by virtue of their residual general competence. In BGE 140 I 176 E. 7.1 the Federal Supreme Court held that the residual general competence permits the cantons to introduce new types of taxes (such as a municipal tax on secondary residences), provided no conclusive federal competence stands in the way.
N. 28 Competence disputes between the Confederation and the cantons should, where possible, be resolved through negotiation and mediation (Art. 44 para. 3 FC). The avenue of recourse to the Federal Supreme Court — by way of a public law appeal (Art. 82 BGG in conjunction with Art. 89 para. 2 lit. c BGG) or by way of a constitutional action (Art. 120 para. 1 lit. a BGG) — is available as a subsidiary remedy. It should be noted that the Federal Supreme Court may find a federal statute unconstitutional but cannot annul it (Art. 190 FC). The most effective «protection» of cantonal sovereignty therefore lies in a careful, constitutionally consistent interpretation of federal competences at the legislative stage.
N. 29 A distinction must be drawn with respect to cantonal penal provisions: penal provisions for the enforcement of administrative law enactments (administrative criminal law) are in principle fully permissible under Art. 335 para. 1 SCC, to the extent that legislative competence over the relevant subject matter is vested in the cantons under Art. 3 FC (BGE 129 IV 276 E. 2.1). Genuine minor-offence penal provisions, by contrast, are permissible only insofar as federal criminal law has not conclusively regulated the relevant area.
N. 30 From a practical standpoint, the Message expressly noted that «in addition to express competences, unwritten competences arising by virtue of the federal structure» also exist (BBl 1997 I 130). This concerns in particular the internal organisation of federal authorities (e.g. ParlA, GAOA), for which no explicit competence provisions exist in the FC. For practitioners, this means that the mere absence of an express constitutional basis does not in itself establish an excess of federal competence, provided the measure can convincingly be traced back to an existing competence norm or to a sufficiently close subject-matter nexus.
#Case Law
Case law on Art. 3 Fed. Const. primarily deals with the delimitation of residual cantonal competence from federal law and the interpretation of the federal distribution of powers. The following leading decisions show the development of case law on cantonal sovereignty.
#Principles of Residual Cantonal Competence
BGE 122 I 70 (22 February 1996) Hang-gliding prohibition by the Canton of Appenzell Innerrhoden; delimitation between federal and cantonal competences in aviation law. The Federal Supreme Court clarifies the principles of concurrent competences and residual cantonal competence in areas not exhaustively regulated.
«The cantons are sovereign insofar as their sovereignty is not limited by the Federal Constitution (Art. 3 Fed. Const.). They have original legislative competence, which is only suspended insofar as the Confederation either has exclusive competence, with originally derogatory effect, or has exhaustively exercised its competence in an area where it has concurrent competence with subsequently derogatory effect.»
BGE 125 II 152 (1999) Delimitation of federal and cantonal competences for gaming machines. Constitutional appeal by the Canton of St. Gallen against Federal Council ordinance. The judgment clarifies that cantons have no right to continue practices that violate federal law.
«The Federal Council did not encroach upon cantonal jurisdiction by enacting the federal gaming machine ordinance. Cantons have no right to continue the previous practice of homologating skill gaming machines that proves to violate federal law.»
#Cantonal Tax Sovereignty and Taxation Powers
BGE 140 I 176 (27 March 2014) Admissibility of a municipal second home tax despite the federal second home initiative. The judgment confirms the original cantonal competence for taxation even in areas with federal competence, insofar as no exhaustive regulation exists.
«The municipality is competent to introduce this tax: The second home initiative accepted in the federal popular vote of 11 March 2012, or the newly created Art. 75b Fed. Const., does not contain a comprehensive and thus exhaustive approach to the problem of so-called 'cold beds' and therefore does not conflict with the municipal second home tax in dispute here.»
BGE 133 I 206 (1 June 2007) Constitutionality of degressive Obwalden tax rates; tariff autonomy of the cantons. The Federal Supreme Court recognizes cantonal autonomy in tax law design subject to constitutional limitations.
«Tariff autonomy of the cantons: The cantons generally have the authority to design their tax rates at their own discretion, insofar as constitutional barriers do not stand in the way.»
#Executive Federalism and Conflicts of Competence
BGE 142 II 182 (24 May 2016)
Local jurisdiction for federal tax assessment of capital benefits upon change of canton. The judgment clarifies the role of cantons in executive federalism and the limits of federal administrative ordinances.
«The locally competent canton has the 'mandatory right' to levy and assess direct federal tax. In the case of capital benefits from pension schemes, according to Art. 216 para. 1 DFTA 1990, special assessment is to be conducted by the canton where the benefit falls due. The SFTA administrative ordinance stating that in cases of moving away the canton of residence should be competent violates federal law and therefore remains irrelevant.»
#Cantonal Police Powers and Regulatory Competences
BGE 128 I 102 (30 January 2002)
Constitutionality of a hospitality patent fee by the Canton of Solothurn. The judgment confirms the original cantonal competence for regulatory fees in the area of police powers.
«Constitutional reservation for cantonal taxes (Art. 132 Cant. Const./SO); legal bases for patent fees according to the old and new Economic Act of the Canton of Solothurn. The cantonal competence to levy regulatory fees follows from the original police powers of the cantons.»
BGE 129 IV 276 (2003) Cantonal criminal provisions in the area of fire police; delimitation from federal criminal law. The judgment clarifies the authority of cantons to impose criminal sanctions in areas of cantonal jurisdiction.
«Authority of cantons to threaten punishment for disregarding provisions on fire prevention. Cantonal criminal jurisdiction remains where federal criminal law does not exhaustively regulate.»
#Intercantonal Cooperation and Coordination
BGE 134 I 23 (15 January 2008) Abstract judicial review; derogatory force of federal law. Valais law on state pension institutions violates federal law. The judgment shows the limits of cantonal legislation in matters regulated by federal law.
«The GVE, which inter alia regulates occupational pension schemes, violates mandatory provisions of federal law in various points, notably the Merger Act and the BVG.»
#Recent Developments
BGE 150 II 527 (18 July 2024) Intercantonal tax allocation; valuation of agricultural or forestry real estate. The most recent judgment confirms the coordination obligations of cantons in intercantonal matters.
«In intercantonal tax allocation, assets must be valued uniformly. For the question of whether real estate qualifies as agricultural or forestry use and is to be valued at earning capacity, the qualification by the canton where the property is located applies.»
BGE 148 I 65 (28 July 2021) Prohibition of intercantonal double taxation; functional hierarchy between cantonal and intercantonal tax law. The judgment clarifies the limits of cantonal tax sovereignty in cross-border situations.
«Principles of intercantonal double taxation law and functional hierarchy between cantonal and intercantonal tax law, particularly concerning the delimitation of tax factors. Cantonal tax sovereignty finds its limit in the prohibition of intercantonal double taxation.»