Art. 4 FC — National Languages

#Doctrine

#1. Legislative History

N. 1 The recognition of Romansh as the fourth national language dates back to the popular vote of 20 February 1938. In its Message of 1 June 1937 on the recognition of Romansh as a national language (BBl 1937 II 1), the Federal Council noted that Romansh comprised several idioms with their own written forms, but had not developed a single unified written language. Despite this dialectal diversity, the Federal Council treated Romansh as one language expressed in various forms, without resolving the question of which idiom should be considered the national language. The amended Art. 116 para. 1 of the Federal Constitution of 1874 (oFC) then read: «The national languages of Switzerland are German, French, Italian and Romansh.»

N. 2 In the context of the total revision of the Federal Constitution, the Federal Council carried over the language content of the former Art. 116 para. 1 oFC essentially unchanged (BBl 1997 I 136, 590). Terminologically, it replaced «national languages» with «national languages» [«Landessprachen»] to conform to current usage (BBl 1997 I 136). The official languages remained in a separate provision — initially as Art. 135 of the 1996 preliminary draft, later as Art. 70 FC. The proposal by the Canton of Berne, the Green Party and the Association of Swiss Engineers to consolidate all language provisions in a single article was deliberately rejected (BBl 1997 I 136). Instead, the Federal Council opted for a systematic separation: Art. 4 FC enshrines the national languages as a feature of national identity, while Art. 70 FC governs their legal regulation.

N. 3 During the parliamentary deliberations of 1998, Council of States member Pierre Aeby, serving as rapporteur, observed that the article on national languages had been conceived as one of the five fundamental elements of the first title of the Federal Constitution (AB 1998 SR Separatdruck). The new placement in the introductory title of the Constitution — rather than in the organisational provisions as before — better reflected the significance of the provision as a «political declaration» of the federal state (BBl 1997 I 136). After several rounds of conciliation proceedings, the National Council and the Council of States adopted the provision in the final vote on 18 December 1998; the Federal Constitution entered into force on 1 January 2000.

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#2. Systematic Classification

N. 4 Art. 4 FC is located in the first title («General Provisions») of the Federal Constitution and thus belongs to the foundational norms defining the character of Switzerland as a polity — alongside federalism (Art. 1 FC), democracy (Art. 2 para. 2 FC), the national objectives (Art. 2 FC), and the federal territory (Art. 3 FC). The provision is programmatic and declaratory in nature; it does not establish directly enforceable subjective rights. The Federal Supreme Court held precisely in BGE 139 I 229 E. 5.1 that three constitutional provisions constitute the language law of the Swiss Confederation: Art. 4 FC designates the national languages, Art. 18 FC guarantees individual linguistic freedom, and Art. 70 FC regulates official languages, the territoriality principle, and federal competences.

N. 5 Within this triangular structure, Art. 4 FC occupies the overarching definitional function from which Art. 18 FC and Art. 70 FC draw their substantive language-law content. Art. 70 FC contains the operational implementation of the constitutional language system and is lex specialis in relation to Art. 4 FC. At the level of legislation, the Federal Act of 5 October 2007 on the National Languages and Understanding between the Linguistic Communities (Languages Act, SpG; SR 441.1) gives concrete effect to the constitutional requirements of both provisions. Cross-references: → Art. 18 FC (individual linguistic freedom); ↔ Art. 70 FC (official languages and promotion); → Art. 3 Cantonal Constitution/GR as a cantonal parallel provision.

N. 6 Art. 4 FC is a programmatic norm without direct justiciability. This fundamentally distinguishes it from the fundamental rights articles (Art. 7–34 FC) and brings it closer to the social objectives (Art. 41 FC), with the difference that Art. 4 FC makes a positive statement of identity, whereas Art. 41 FC lays down state obligations. Rhinow/Schefer/Uebersax characterise Art. 4 FC as a «state profession-of-faith provision» expressing the commitment to linguistic and cultural unity in diversity (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 254).

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#3. Normative Content

N. 7 Art. 4 FC contains an exhaustive enumeration of the four national languages of Switzerland: German, French, Italian and Romansh. The enumeration is constitutive — no other language can attain the status of a national language without a constitutional amendment. The term «national languages» encompasses not merely the official or court languages of the Confederation, but the totality of the cultural foundations of the Swiss polity (BBl 1997 I 136). All four languages are placed on an equal footing as national languages; there is no hierarchy among them.

N. 8 German encompasses both the standard language (High German) and the Swiss-German dialects (Schweizerdeutsch). For official purposes, the standard language applies as a rule (Art. 5 para. 2 SpG). French and Italian, as internationally codified languages, require no further differentiation in the constitutional text. For Romansh, however, the legal position is complex: the constitutional term «Romansh» expressly leaves open whether it refers to the historical idioms (Sursilvan, Vallader, Puter, Surmiran, Sutsilvan) or to the unified written idiom «Rumantsch Grischun» created in 1982 (BGE 139 I 229 E. 5.7.4). The Federal Supreme Court has held that neither the Federal Constitution nor case law specifies which version of Romansh is intended at the constitutional level.

N. 9 The national languages are those languages that have historically developed on Swiss territory. This constitutional-historical foundation is evident in the parliamentary deliberations: already in the Message of 1937 (BBl 1937 II 1), the Federal Council emphasised that Romansh, despite its dialectal diversity, «presents itself as a unity in various forms of expression». This finding was democratically legitimised by the popular vote of 1938 and underlies the current provision. Häfelin/Haller/Keller/Thurnherr stress that the recognition of the four national languages is an expression of the Swiss Willensnation [nation by will], which forms a political unity despite linguistic and cultural diversity (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 171 ff.).

N. 10 Normative functions: Art. 4 FC fulfils three distinct functions: (1) Identity function: The four national languages constitute the cultural identity of the federal state. (2) Definitional function: Art. 4 FC provides the concept of language upon which Art. 70 FC and the SpG build. (3) Protective function: Constitutional entrenchment protects the linguistic composition of the country from erosion by ordinary legislation. Müller/Schefer regard Art. 4 FC as the constitutional basis for state protection of all four linguistic communities and in particular the smaller linguistic minorities (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 294 ff.).

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#4. Legal Consequences

N. 11 As a programmatic norm, Art. 4 FC establishes no subjective rights upon which private individuals could directly rely against the state. Individual language-law claims — such as the right to use a particular language in a particular set of proceedings — are based on Art. 18 FC (linguistic freedom) and Art. 70 para. 1 FC (official languages of the Confederation), as well as on cantonal law. The Federal Supreme Court has implicitly confirmed the declaratory character of Art. 4 FC by consistently grounding language-law complaints in Art. 18 FC or Art. 70 FC rather than in Art. 4 FC alone (BGE 139 I 229 E. 5.1–5.3).

N. 12 The provision develops its legal effect primarily as a constitutional mandate addressed to the Confederation and the cantons. This obliges the legislature to recognise the four linguistic communities in law and to create the normative structures necessary for their coexistence. The SpG (SR 441.1), in particular its provisions on the promotion of Romansh and Italian in the Canton of Graubünden (Art. 14–16 SpG), are expressions of this mandate. Equally, Art. 4 FC obliges the federal legislature and the cantons, in determining their official languages (→ Art. 70 para. 2 FC), to preserve the equal standing of the recognised linguistic communities.

N. 13 Art. 4 FC operates as an interpretive standard: in construing Art. 70 FC and the SpG, the principle of equal standing of all four national languages enshrined in Art. 4 FC must be taken into account. In the area of Romansh, the Federal Supreme Court applied this standard in BGE 139 I 229 E. 5.7.4 and held that the Confederation treats «Romansh» as a single language at the federal level — with Rumantsch Grischun as the standard form for official federal communications (Art. 5 para. 2 in conjunction with Art. 6 para. 3 SpG).

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#5. Disputed Questions

N. 14 Relationship between Art. 4 FC and Art. 70 FC: It is disputed whether Art. 4 FC has independent normative significance or is merely a programmatic preamble to Art. 70 FC. Rhinow/Schefer/Uebersax attribute to Art. 4 FC an independent symbolic-normative function that goes beyond Art. 70 FC: as a component of the foundational part of the Constitution, it binds the entire state apparatus to the recognition of quadrilingualism (Rhinow/Schefer/Uebersax, op. cit., N 254). Häfelin/Haller/Keller/Thurnherr, by contrast, emphasise that, lacking an enforcement mechanism and subjective rights, Art. 4 FC takes legal effect only through Art. 70 FC, and locate the actual substance of language law there (Häfelin/Haller/Keller/Thurnherr, op. cit., N 174 f.). The Federal Supreme Court has thus far left this question open by consistently citing Art. 4 FC together with Art. 18 and Art. 70 FC without attributing independent significance to it (BGE 139 I 229 E. 5.1).

N. 15 Legal status of Romansh: idioms versus Rumantsch Grischun: The most significant current controversy concerns the question of whether the constitutional term «Romansh» in Art. 4 FC refers to the historical idioms or to Rumantsch Grischun. Müller/Schefer take the view that Art. 4 FC protects the individual use of both forms — both the idioms and Rumantsch Grischun (Müller/Schefer, op. cit., p. 294). Biaggini regards Art. 4 FC as the constitutional basis for the protection of the Romansh idioms as an expression of the linguistic identity of the relevant population groups (Biaggini, BV, 2007, N. 6 on Art. 70 FC). The Federal Supreme Court expressly left this question open in BGE 139 I 229 E. 5.7.4: the constitutional term «Romansh» determines neither one solution nor the other. The choice between idiom and Rumantsch Grischun is «rather a question of language policy than of fundamental rights».

N. 16 Normative character — programmatic or legally binding?: Even under the oFC, the legal effects of the national languages provision were disputed. In BGE 91 I 480 E. II/2 (concerning Art. 116 para. 1 oFC), the Federal Supreme Court held that the constitutional recognition of the four national languages confers on the cantons an authorisation to preserve the linguistic homogeneity of their territories and simultaneously enshrines the territoriality principle as a constitutional principle. This idea — the national languages norm as an enabling basis for state language-protection policy — was superseded in the new FC by the express competence norm in Art. 70 paras. 2–5 FC and anchored there. An independent enabling function of Art. 4 nFC has thus receded compared with the previous legal position.

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#6. Practical Notes

N. 17 Demarcation from Art. 18 and Art. 70 FC: In practice, Art. 4 FC rarely serves as the basis for an independent legal complaint. Anyone wishing to raise a language-law grievance in proceedings must rely on Art. 18 FC (violation of individual linguistic freedom) or on Art. 70 FC in conjunction with the SpG and cantonal language law. Reliance on Art. 4 FC alone is insufficient, as the provision does not establish subjective rights.

N. 18 Romansh in official federal communications: Pursuant to Art. 6 para. 3 SpG, persons of Romansh linguistic identity may address the federal authorities in their idiom or in Rumantsch Grischun; the authorities reply in Rumantsch Grischun. Before the Federal Supreme Court, proceedings are conducted in Rumantsch Grischun (Art. 54 para. 1 SCA). This arrangement operationally implements the equal standing of Romansh enshrined in Art. 4 FC for official federal communications, without resolving the question of the constitutional term (BGE 139 I 229 E. 5.7.4).

N. 19 Relationship to the European Charter for Regional or Minority Languages: Switzerland has ratified the Charter of 5 November 1992 (SR 0.441.2) and has undertaken to provide primary school education in Romansh (Art. 2 para. 2, Art. 8 para. 1 lit. b(i) of the Charter). The Federal Supreme Court held in BGE 139 I 229 E. 6 that the Charter largely contains programmatic provisions addressed primarily to the legislature. It does not establish a direct claim to instruction in a specific Romansh idiom. Art. 4 FC and the Charter complement each other in their protective mandate without producing identical legal effects.

N. 20 Legislative policy: Art. 4 FC is of considerable symbolic importance in the legal-political debate on the protection of linguistic minorities. Reform proposals touching upon the linguistic balance — such as changes to official language requirements in the federal civil service or restrictions on multilingual federal legislation — must be measured against the principle of equal standing of the four national languages enshrined in Art. 4 FC. To that extent, the provision operates as a constitutional guiding principle for political discourse on language policy in Switzerland (cf. Häfelin/Haller/Keller/Thurnherr, op. cit., N 171; Müller/Schefer, op. cit., p. 294).

Case Law

#Court Decisions on Art. 4 Federal Constitution

The case law on Art. 4 Federal Constitution (national languages) is extremely sparse. This is because the provision, as a programmatic constitutional norm, does not establish any direct legal claim, but primarily declares the four equal national languages of Switzerland. The practical implementation of language rights occurs through the special provisions in Art. 18 and 70 Federal Constitution as well as the Languages Act.

#Early Case Law

BGE 50 I 100 of 1 January 1924 Early mention of Art. 4 Federal Constitution in a tax law context. This decision deals with intercantonal double taxation and cites Art. 4 Federal Constitution merely as one of the applicable constitutional provisions.

«Nach § 2 Ziff. 2 zürch. StG unterliegen die juristischen Personen mit Sitz im Kanton Zürich der zürcherischen Besteuerung.»

BGE 54 I 301 of 1 January 1928 Renewed incidental mention of Art. 4 Federal Constitution in tax law proceedings. The decision deals with municipal taxation and mentions Art. 4 Federal Constitution merely as part of the applicable constitutional law.

«Zur Gemeindewasserversorgung der solothurnischen Einwohnergemeinde Dornach gehört u.a. eine in der basellandschaftlichen Gemeinde Aesch gelegene Liegenschaft.»

BGE 58 I 363 of 1 January 1932 Procedural question in debt collection proceedings with peripheral reference to Art. 4 Federal Constitution. The Federal Supreme Court examines the admissibility of cantonal procedural provisions and mentions Art. 4 Federal Constitution in connection with the constitutional appeal.

«Die Beschwerdeschrift ruft zwar als verletzte Vorschrift im Sinne von Art. 175 Ziff. 3 OG (neben dem Rechtshilfekonkordat) ausdrücklich nur Art. 4 BV an.»

#Recent Developments

Recent case law contains no direct applications of Art. 4 Federal Constitution. Language law disputes are now decided primarily through Art. 18 Federal Constitution (individual language freedom) or Art. 70 Federal Constitution (official languages). Art. 4 Federal Constitution serves at most as constitutional background for the interpretation of the more specific language norms.

#Significance for Practice

Art. 4 Federal Constitution unfolds its legal effect not through direct judicial enforcement, but as a constitutional mandate to the legislature and administration. The limited presence in case law corresponds to its character as a fundamental norm that requires legislative specification.