1Any person who is a citizen of a commune and of the Canton to which that commune belongs is a Swiss citizen.
2No person may be given preferential treatment or suffer prejudice because of their citizenship. The foregoing does not apply to regulations on political rights in citizens’ communes and corporations or to participation in the assets thereof, unless cantonal legislation provides otherwise.
Overview
Art. 37 BV regulates who is a Swiss citizen and prohibits discrimination based on origin. The provision is central to naturalisation law and the equal treatment of all Swiss citizens.
#Dual Citizenship
Swiss nationality is only acquired by those who possess both municipal citizenship and cantonal citizenship. This dual citizenship is constitutionally mandatory. In the case of naturalisation, both levels must therefore consent: first the municipality, then the canton.
Example: Maria from Italy wants to become Swiss. She must first be naturalised in her municipality of residence, Zurich, and then acquire citizenship of the Canton of Zurich. Only then is she a Swiss citizen.
#Equal Treatment Obligation
All Swiss citizens must be treated equally, regardless of their place of origin. A municipality may not treat citizens who have moved from other cantons less favourably than its own. This applies to taxes, fees and public services.
Example: The City of Bern may not charge higher parking fees from a Basel resident who moves to Bern than from a native Bernese.
#Exceptions for Bourgeois Communes
Bourgeois communes and corporations (traditional cooperatives) may favour their own members regarding political rights and capital shares. They may, for example, only allow their citizens to participate in certain bodies or to participate in profit distributions.
Example: A bourgeois commune in Valais may only grant its own citizens the right to vote in the bourgeois assembly. Residents who have moved there have no entitlement to this.
However, cantonal law may restrict or completely abolish these exceptions.
Art. 37 BV — Doctrine
#1. Legislative History
N. 1 The current wording of Art. 37 BV derives from the total revision of 1999 and continues the tradition of three-tiered citizenship that was already enshrined in the Federal Constitution of 1874 (Art. 43). The Message concerning a new Federal Constitution of 20 November 1996 (BBl 1997 I 1, 212 f.) emphasises that Swiss citizenship is based on the «principle of triple citizenship»: municipal, cantonal and federal citizenship form a unity.
N. 2 The historical development shows continuity since the founding of the federal state in 1848. Citizenship was always structured federally and primarily linked to municipal membership. The Message states: «The acquisition of Swiss citizenship imperatively requires the simultaneous acquisition of cantonal and municipal citizenship» (BBl 1997 I 213).
N. 3 The exception in para. 2 for bourgeois municipalities and corporations was inserted to respect their historically developed special position. The Message explicitly mentions «the special rights for members of bourgeois municipalities and corporations in the area of political rights and participation in assets» (BBl 1997 I 213).
#2. Systematic Classification
N. 4 Art. 37 BV is located in Title 2 «Citizenship and Political Rights» and, together with Art. 38 BV (acquisition and loss), forms the constitutional foundation of the Swiss citizenship system. The provision is closely related to:
- → Art. 8 BV (equality before the law), particularly the prohibition of discrimination
- → Art. 38 BV (acquisition and loss of citizenship)
- → Art. 42 BV (duties of the Confederation)
- → Art. 121 BV (legislation on entry and exit)
N. 5 The federalist structure of citizenship reflects the principle of subsidiarity (→ Art. 5a BV). Häfelin/Haller/Keller/Thurnherr (Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 739) describe the three-tiered system as «an expression of the federal state structure».
N. 6 In the context of fundamental rights, Art. 37 para. 2 BV is a special equality provision that concretises the general prohibition of discrimination in Art. 8 para. 2 BV for citizenship rights (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 752).
#3. Elements of the Offence / Content of the Norm
#3.1 Dual Citizenship (Para. 1)
N. 7 «Dual citizenship» means that for Swiss nationality, both municipal and cantonal citizenship are imperatively required. Ehrenzeller (in: St. Galler Kommentar BV, 4th ed. 2023, Art. 37 N 4) speaks of an «inseparable nexus».
N. 8 The term «municipality» encompasses both residents' municipalities and bourgeois municipalities. In ordinary naturalisation, the municipality of residence primarily decides, while for ancestral citizenship the bourgeois municipality is decisive (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3386).
N. 9 Federal citizenship cannot be acquired in isolation. BGE 148 I 271 E. 2 confirms this constitutional basic structure when examining naturalisation requirements.
#3.2 Prohibition of Discrimination (Para. 2 Sentence 1)
N. 10 The prohibition refers to unequal treatment that exclusively relates to the criterion of citizenship. Waldmann (BSK BV, 2nd ed. 2024, Art. 37 N 15) clarifies: «Differentiations according to residence, duration of stay or other objective criteria remain permissible».
N. 11 The provision prohibits both direct and indirect discrimination. An apparently neutral regulation that factually only affects citizens of other municipalities or cantons may also violate Art. 37 para. 2 BV (Tschannen/Zimmerli/Müller, Allgemeines Verwaltungsrecht, 4th ed. 2014, § 23 N 15).
#3.3 Exception for Bourgeois Municipalities and Corporations (Para. 2 Sentence 2)
N. 12 The exception allows special rights only in two areas:
- Political rights in bourgeois municipalities and corporations
- Participation in the assets of these bodies
N. 13 BGE 132 I 68 has clarified the scope: The exception justifies only preferential treatment vis-à-vis third parties, but not internal discrimination within the corporation. Biaggini (BV-Kommentar, 2nd ed. 2017, Art. 37 N 5) warns against an extensive interpretation of the exception provision.
#3.4 Reservation of Cantonal Legislation (Para. 2 Sentence 3)
N. 14 The cantons may restrict or abolish the special rights of bourgeois municipalities and corporations. This reservation underscores cantonal organisational autonomy (→ Art. 47 BV).
#4. Legal Consequences
N. 15 From para. 1 follows:
- Loss of municipal citizenship automatically leads to loss of cantonal and federal citizenship
- Acquisition of Swiss citizenship imperatively requires simultaneous acquisition of municipal and cantonal citizenship
- Naturalisation procedures must be coordinated at all three levels
N. 16 From para. 2 follows:
- Public services may not be made dependent on citizenship (exception: social assistance according to Art. 115 BV)
- Fees and charges may not differentiate according to citizenship
- Access to public facilities must occur without discrimination
N. 17 Violations of Art. 37 para. 2 BV may be challenged by constitutional appeal (→ Art. 189 para. 1 lit. a FSCA). Practice shows strict control by the Federal Supreme Court, particularly in cases of disguised discrimination.
#5. Disputed Issues
N. 18 Disputed is the scope of the exception for bourgeois municipalities. Ehrenzeller (St. Galler Kommentar BV, Art. 37 N 12) advocates a restrictive interpretation, while Waldmann (BSK BV, Art. 37 N 18) argues for more leeway for corporations. BGE 132 I 68 has aligned with the restrictive line.
N. 19 Controversially discussed is the relationship between Art. 37 para. 2 BV and Art. 8 BV. Müller/Schefer (Grundrechte, pp. 754 f.) see Art. 37 para. 2 as lex specialis, while Biaggini (BV-Kommentar, Art. 37 N 4) argues for parallel application.
N. 20 The digitalisation of citizenship registers raises new questions. Rhinow/Schefer/Uebersax (Verfassungsrecht, N 3390) call for an adaptation of federal structures, while traditional doctrine maintains the primacy of municipalities.
#6. Practical Guidelines
N. 21 In naturalisation procedures, coordination between the three levels is essential. Delays at one level can block the entire procedure. BGE 146 I 83 shows the importance of clear demarcations of competence.
N. 22 Bourgeois municipalities must regularly review their statutes for compatibility with Art. 8 and Art. 37 para. 2 BV. Historical privileges are not sacrosanct, as BGE 132 I 68 clearly shows.
N. 23 In fee design, caution is advised: Apparently neutral tariffs for «outsiders» may violate Art. 37 para. 2 BV if they factually only affect non-municipal citizens.
N. 24 Municipal assemblies may not distinguish between their own and foreign citizens when voting on credits or regulations. This also applies to voting rights in school or church municipalities, provided no cantonal reservation exists.
Art. 37 FC — Case Law
#I. Double Citizenship (Para. 1)
#1. Basic Requirement
BGE 148 I 271 E. 2 (8 March 2022) The Federal Supreme Court confirmed the constitutional requirement of double citizenship for Swiss nationality and applied Art. 37 para. 1 FC in examining naturalisation requirements. The judgment dealt with linguistic requirements for ordinary naturalisation.
«According to Art. 37 para. 1 FC, a person is a Swiss citizen if he or she possesses the citizenship of a municipality and the citizenship of a canton.»
#2. Federalist Division of Competences in Naturalisations
BGE 146 I 83 (13 November 2019) The Federal Supreme Court examined the autonomy of Basel-Stadt's bourgeois municipalities in ordinary naturalisations and the federalist division of competences. The cantonal presumption rule for basic knowledge through school attendance was deemed constitutionally compliant.
«For ordinary naturalisation, both municipal citizenship and cantonal citizenship must be acquired, which corresponds to the principle of double citizenship according to Art. 37 para. 1 FC.»
BGE 146 I 49 (18 December 2019) The Federal Supreme Court clarified the federal division of competences in ordinary naturalisation. Even without a legal right to naturalisation, it would be arbitrary and contrary to the principle of equality to reject an applicant who fulfils all requirements.
#3. Linguistic Requirements and Constitutional Application
BGE 148 I 271 (8 March 2022) In a multilingual canton, the requirement of knowledge of the local language is in principle permissible. However, the non-recognition of a sufficient school-leaving certificate grade for the local language as adequate proof of language skills was unconstitutional.
«The constitutional violation of the non-recognition of the sufficient school-leaving certificate grade for the local language as adequate proof of language skills violates the prohibition of excessive formalism according to Art. 29 para. 1 FC.»
BGE 149 I 91 (19 December 2022) The Federal Supreme Court confirmed its jurisdiction for appeals against decisions of the Federal Administrative Court on federal naturalisation permits. The duty to give reasons according to Art. 29 para. 2 FC also applies to rejections of naturalisation applications.
#4. Ballot Box Votes on Naturalisations
BGE 129 I 232 (9 July 2003) The Federal Supreme Court declared an initiative unconstitutional that sought to subject naturalisation applications to mandatory ballot box votes. Such procedures cannot fulfil the constitutional duty to give reasons and violate the prohibition of discrimination.
«Rejecting naturalisation decisions are subject to the duty to give reasons according to Art. 29 para. 2 FC (right to be heard) in conjunction with Art. 8 para. 2 FC (prohibition of discrimination). In ballot box voting, reasoning that meets constitutional requirements is not possible.»
#II. Prohibition of Preferential Treatment or Disadvantage (Para. 2 Sentence 1)
#1. General Equal Treatment Principle
BGE 132 I 68 E. 3.1 (3 February 2006) The Federal Supreme Court clarified the content of Art. 37 para. 2 FC: Cantons and municipalities may not treat settled citizens from other cantons and municipalities differently from their own based on their citizenship. Unequal treatment based on residence or other criteria compatible with Art. 8 FC is permissible.
«According to Art. 37 para. 2 FC, no one may be given preferential treatment or be disadvantaged because of their citizenship. The cantons and municipalities may not treat citizens from other cantons and municipalities who are settled in their territory differently from their own based on their citizenship.»
#III. Exception for Bourgeois Municipalities and Corporations (Para. 2 Sentence 2)
#1. Scope of the Exception Rule
BGE 132 I 68 E. 3 (3 February 2006) — Leading decision The Federal Supreme Court clarified the application of the exception rule for corporations and established that Art. 37 para. 2 sentence 2 FC only regulates the relationship to third parties, but does not justify internal discrimination within the corporation.
«Art. 37 para. 2 FC allows corporations to favour their own members over third parties in certain areas. However, for the transfer of corporate citizenship to a descendant, this provision is not decisive.»
The judgment concerned a common property corporation that denied married female corporation citizens the transfer of membership to their children. This was qualified as unconstitutional gender discrimination.
«A public law corporation violates Art. 8 FC if it excludes the transfer of membership by married female corporation citizens and unmarried male corporation citizens. The exception rule of Art. 37 para. 2 FC does not cover this unequal treatment within the corporation.»
#2. Autonomy of Bourgeois Municipalities in Naturalisations
BGE 146 I 83 (13 November 2019) The Federal Supreme Court confirmed the autonomy of Basel-Stadt's bourgeois municipalities in the area of ordinary naturalisation. A cantonal presumption rule in examining basic knowledge does not fundamentally violate this autonomy.
«The exception rule of Art. 37 para. 2 FC guarantees bourgeois municipalities and corporations the right to favour their own members over third parties in certain areas.»
#3. Limits of Corporate Autonomy
BGE 132 I 68 E. 4 (3 February 2006) The Federal Supreme Court clarified that public law corporations must observe constitutional limits despite their autonomy. A connection to gender-discriminatory federal law provisions is not mandatory.
«Federal law does not define the conditions for membership in the common property corporation. Thus there was no necessity for the corporation to resort to the gender-discriminatory regulations.»
#IV. Cantonal Legislation (Para. 2 Sentence 3)
#1. Reservation for Cantonal Regulation
BGE 132 I 68 (3 February 2006) The Federal Supreme Court confirmed that cantonal legislation can restrict the exception rule for bourgeois municipalities and corporations. The Canton of Schwyz had no corresponding contrary regulation.
«Excepted are provisions on political rights in bourgeois municipalities and corporations as well as on participation in their assets, unless cantonal legislation provides otherwise.»
BGE 146 I 83 (13 November 2019) The cantonal citizenship law of Basel-Stadt regulated the competences between the canton and bourgeois municipalities in naturalisations and was deemed constitutionally compliant by the Federal Supreme Court, although it partially restricted the autonomy of the bourgeois municipalities.
#V. Nullification of Naturalisations
VB.2008.00408 (5 November 2008) — Administrative Court of Zurich The nullification of a naturalisation is possible if it was unlawfully granted. The court has jurisdiction if the nullification of municipal citizenship is also in question, to which there was in principle an entitlement.
VB.2013.00494 (20 November 2013) — Administrative Court of Zurich For minor appellants with a right to naturalisation, the refusal of naturalisation due to a municipal waiting period after previous social assistance received by the parents without examination of current circumstances is inadmissible.