Art. 42 FC — Federal Tasks

#Doctrine

#1. Legislative History

N. 1 Art. 42 FC is a product of the total revision of 1999. The old Federal Constitution of 1874 contained no provision expressly defining the tasks of the Confederation; the competences were derived solely from the individual subject-matter provisions. No corresponding predecessor provisions are to be found in earlier versions of the Federal Constitution (Neier, Onlinekommentar zu Art. 42 BV, N. 1).

N. 2 The preliminary draft of 1995 placed the cantons at the centre and provided in Art. 32 para. 1 PD 1995: «The cantons are competent for all tasks that are not assigned to the Confederation by the Federal Constitution.» The draft did not expressly address the tasks of the Confederation; according to the explanatory notes (Explanatory Notes PD 1995, p. 68), these were to be derived from the interpretation of the Federal Constitution. During the consultation procedure, the relationship between this provision and Art. 3 PD 1995 was criticised as «unclear», since both provisions established the residual general competence of the cantons. The Federal Council responded with the constitutional draft of 1996 and reformulated the provision: the tasks of the Confederation were defined in Art. 3 para. 2 PD 1996 with the wording: «The Confederation fulfils the tasks assigned to it by the Federal Constitution» — identical to the current Art. 42 para. 1 FC. The systematic relocation from Art. 3 para. 2 PD 1996 to Art. 42 FC was effected at the instigation of the Council of States, which took the view during the parliamentary deliberations that this provision constituted a concretisation of the federalism principle (AB 1998 SR p. 25; Neier, Onlinekommentar zu Art. 42 BV, N. 3).

N. 3 In addition to the relocation of the fundamental provision, the parliamentary debate on Art. 42 FC was significantly shaped by the question of how the subsidiarity principle should be formulated. The Federal Council had proposed in Art. 34 para. 3 PD 1996 to oblige the Confederation to observe the principle of subsidiarity. The Council of States considered the concept of «subsidiarity» to be «unclear and ambiguous» (AB 1998 SR p. 61) and preferred a more concrete description: «It [the Confederation] assumes only those tasks that require uniform regulation.» A minority of the committee advocated the deletion of the word «only» in order to formulate the subsidiarity principle positively. Rapporteur Rhinow René (R, BL) led the deliberations on the allocation of tasks in the Council of States (AB 1998 SR Separatdruck). Council of States member Aeby Pierre (S, FR) put forward a minority position that sought a more positive formulation of the federal role — he criticised an excessively restrictive view: «Nous ne pouvons pas continuer à vivre constitutionnellement et légalement notre réalité avec une définition aussi négative du pouvoir de la Confédération.» (Aeby Pierre, AB 1998 SR p. 62). Federal Councillor Leuenberger Moritz supported the minority position as «leaner» and less restrictive. In the National Council, the explicit entrenchment of the subsidiarity principle initially prevailed; in the conciliation conference, the Council of States and the National Council ultimately agreed on the «Germanised» formulation (AB 1998 SR p. 61) without the word «only», which was incorporated into Art. 42 para. 2 FC.

N. 4 This paragraph 2 — the principle of subsidiarity — subsequently proved to require interpretation and was contested. The deletion of the word «only» avoided, on the one hand, the impression that the Confederation could only be assigned tasks requiring uniform regulation; on the other hand, the formulation raised the question of whether paragraph 2 established an independent competence basis going beyond paragraph 1 (Müller/Schweizer, SGK BV, Art. 42 N. 6; Rhinow, Die Bundesverfassung 2000, p. 76). With the federalism reform that entered into force on 1 January 2008 (New Fiscal Equalisation and Division of Tasks between the Confederation and the Cantons, NFA), paragraph 2 was repealed. The principle of subsidiarity has since been expressly anchored in Art. 5a FC and concretised in Art. 43a para. 1 FC (BBl 2002 2291; BBl 2003 6591; BBl 2005 951).

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#2. Systematic Classification

N. 5 Art. 42 FC is located in Title 3 of the Federal Constitution («Confederation, Cantons and Communes»), Chapter 1 («Relationship between the Confederation and the Cantons»), Section 1 («Tasks of the Confederation and the Cantons»). Together with Art. 43 FC (tasks of the cantons) and Art. 43a FC (principles governing the assignment and performance of tasks), the provision forms the basic framework of the federal allocation of tasks and competences. Following the NFA reform that succeeded paragraph 2, this section has been supplemented since 2008 by the central Art. 43a FC.

N. 6 The constitutional system of competences is founded on the principle of enumerated powers, which Art. 42 FC explicates from the federal perspective and which is implied in Art. 3 FC from the cantonal perspective: the Confederation possesses only those competences that the Federal Constitution expressly assigns to it; all rights not transferred remain with the cantons (residual general competence). The Federal Supreme Court has repeatedly confirmed this structure: «In accordance with Art. 3 FC (in conjunction with Art. 42 FC), the principle applies that the cantons exercise all rights that are not transferred to the Confederation. Thus a residual general competence of the cantons exists» (BGE 140 I 176 E. 7.1). The cantons are sovereign pursuant to Art. 3 FC insofar as their sovereignty is not limited by the Federal Constitution.

N. 7 Key cross-references: ↔ Art. 3 FC (cantonal sovereignty and residual general competence); → Art. 5a FC (principle of subsidiarity); → Art. 43 FC (tasks of the cantons); → Art. 43a FC (principles governing the assignment and performance of tasks); → Art. 44 FC (cooperation between the Confederation and the cantons); → Art. 47 FC (autonomy of the cantons); → Art. 189 para. 2 FC in conjunction with Art. 120 para. 1 lit. a SCA (competence disputes before the Federal Supreme Court); → Art. 193/194 FC (constitutional revision as the sole means of reassigning federal competences).

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#3. Content of the Provision

N. 8 Concept of «task». Art. 42 FC speaks of «tasks» assigned to the Confederation, whereas other provisions use the term «competence» (e.g. Arts. 43, 57, 61a FC). The fundamental concepts of competence law must be distinguished: a governmental «task» denotes an obligation of the state to act — it forms the interface between state and society and draws the boundary to the private sphere. «Competence» or «jurisdiction» then determines which level of government is authorised to perform that task (Neier, Onlinekommentar zu Art. 42 BV, N. 13 f.; Biaggini, BSK BV, Art. 42 N. 21 ff.; Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 681). The Federal Constitution of 1999 does not always maintain a clear distinction between these categories (Rhinow/Schefer/Uebersax, op. cit., N. 682).

N. 9 Relationship between task and competence. The assignment of a task to the Confederation is not identical to the establishment of a federal competence: on the one hand, the Confederation may be competent for tasks in the sense of an obligation to act (e.g. «The Confederation shall regulate…», «The Confederation shall ensure…»). On the other hand, a federal competence also exists where the Constitution declares the Confederation to be competent without imposing an obligation to act — as in enabling provisions («may» provisions, e.g. Art. 71 FC: «The Confederation may promote Swiss film production»). Conversely, the Federal Constitution in some places entrusts the Confederation with a task but limits the obligation to act to the «scope of its competences» (e.g. Arts. 76 para. 1 and 118 para. 1 FC), so that an additional constitutional authorisation remains necessary (Biaggini, BSK BV, Art. 42 N. 22–24).

N. 10 Assignment of tasks by the Federal Constitution — principle and exceptions. The assignment of federal tasks is in principle effected expressly and exhaustively by the Federal Constitution (principle of enumerated powers). Implied competences are recognised by way of exception: by virtue of subject-matter connection (pouvoirs implicites, implied powers) or by virtue of the federal structure of the state (pouvoirs inhérents, inherent powers). The former follow from the necessity of being able to exercise an express competence at all; the latter arise where a federal competence must sensibly follow from the federal state principle (e.g. state security, coats of arms and flags). Since the total revision of 1999, there is little room for implied competences; they require special justification (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1068; Neier, Onlinekommentar zu Art. 42 BV, N. 22). The creation of new federal competences by way of gap-filling, customary law, or cantonal transfer of competences by agreement is impermissible (Müller/Schweizer, SGK BV, Art. 42 N. 10).

N. 11 Limited independent content of Art. 42 FC. Art. 42 para. 1 FC — despite its foundational character — has only limited independent normative content. For the question of a specific federal competence, the relevant subject-matter provision of the Federal Constitution is always determinative, in particular the competence provisions of Chapter 2 of Title 3 (Arts. 54–125 FC). These provisions simultaneously determine the scope of the competence and the legal effects on cantonal competences (Neier, Onlinekommentar zu Art. 42 BV, N. 19 f.; Biaggini, BSK BV, Art. 42 N. 2; Müller/Schweizer, SGK BV, Art. 42 N. 8 f.; Tschannen, Staatsrecht der Schweizerischen Eidgenossenschaft, 5th ed. 2021, N. 723). The Federal Supreme Court accordingly reviews federal competence not directly on the basis of Art. 42 FC, but on the basis of the relevant subject-matter provision (BGE 139 II 271 E. 9 ff., where the Court examined the conditions for a «federal task» within the meaning of Art. 78 para. 2 FC on the basis of Art. 75b FC, without directly applying Art. 42 FC).

N. 12 Delegation of task performance. Art. 42 para. 1 FC obliges the Confederation to perform its tasks, but does not prevent it from entrusting third parties — in particular cantons or private individuals — with the performance of its tasks, provided that the relevant subject-matter provision permits this. The delegation does not, however, relieve the Confederation of its general responsibility for performance (Biaggini, BSK BV, Art. 42 N. 36; Bellanger, CR CO, Art. 42 BV N. 57; Müller/Schweizer, SGK BV, Art. 42 N. 9).

N. 13 Overview of federal tasks. The majority of federal tasks are set out in Arts. 54–125 FC: foreign affairs; national security; education and research; sport and culture; environmental protection and spatial planning; public transport; energy and communications; economic policy; housing, social security and health protection; migration; civil and criminal law (Biaggini, BSK BV, Art. 42 N. 38). Federal tasks may additionally arise from international treaties (Biaggini, BSK BV, Art. 42 N. 33).

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#4. Legal Consequences

N. 14 Constitutional reservation and Kompetenz-Kompetenz. New federal competences may only be established by way of constitutional amendment — total or partial revision pursuant to Arts. 193 and 194 FC respectively. The Kompetenz-Kompetenz thus lies with the constituent power at the federal level. Conversely, existing federal competences may be withdrawn and returned to the cantons by the same means. A voluntary assignment of competences by the cantons — for example by intercantonal agreement — is excluded (Hangartner, Die Kompetenzverteilung zwischen Bund und Kantonen, 1974, p. 57; Waldmann/Spiess, Aufgaben- und Kompetenzverteilung, 2015, N. 10; BGE 67 I 277 E. 4).

N. 15 Justiciability. Competence disputes between the Confederation and the cantons are decided by the Federal Supreme Court (Art. 189 para. 2 FC in conjunction with Art. 120 para. 1 lit. a SCA). Art. 42 FC as such does not confer subjective rights on private individuals. It is an expression of the objective system of competences and operates primarily in the relationship between governmental levels. Private individuals may rely on violations of the competence system only insofar as specific fundamental rights provisions or specific procedural guarantees permit this (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 682).

N. 16 Tasks with and without an obligation to act. From the verb «fulfils» in Art. 42 para. 1 FC, it might be inferred that the Confederation is always obliged to actively perform its tasks. However, the requirement to act arises only from the relevant subject-matter provision: tasks with an obligation to act («The Confederation shall regulate…», «The Confederation shall ensure…») must be distinguished from mere enabling provisions («The Confederation may…»). In the case of enabling provisions, there is no obligation to perform a task in any given instance, but there is an obligation periodically to examine whether action is required (Tschannen, Staatsrecht, N. 744; Aubert, PC BV, Vorbemerkungen zu Art. 42 N. 3; Rhinow, Die Bundesverfassung 2000, p. 81; Message FC, BBl 1997 I 228).

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#5. Disputed Questions

N. 17 Independent normative content of Art. 42 para. 1 FC. It is disputed whether Art. 42 para. 1 FC has an independent normative significance beyond its declaratory function. Biaggini (BSK BV, Art. 42 N. 2) and Tschannen (Staatsrecht, N. 723) characterise the content as limited and regard the provision primarily as a reflection of the principle of enumerated powers laid down in Art. 3 FC. Müller/Schweizer (SGK BV, Art. 42 N. 8 f.) and Ehrenzeller/Ehrenzeller (L'amour de la complexité, 2016, p. 39) take a similar view: the residual cantonal competence under Art. 3 FC is merely underscored by Art. 42 FC from the federal perspective. In contrast, Bellanger (CR BV, Art. 42 N. 5) ascribes a degree of independent content to the provision by treating it as a binding constitutional statement concerning the Confederation's obligation to perform tasks. This position represents a minority view; it makes little practical difference, however, since the specific competence must always be assessed on the basis of the subject-matter provision.

N. 18 Implied federal competences. It is disputed to what extent unwritten federal competences remain permissible after the total revision of 1999. The prevailing view allows implied competences by virtue of subject-matter connection (implied powers) and by virtue of the federal structure of the state (inherent powers) by way of exception, but emphasises that since 1999 there is little room for such competences, since one of the aims of the constitutional drafters was precisely to codify even unwritten constitutional law (Häfelin/Haller/Keller/Thurnherr, N 1068; Biaggini, Vorbemerkungen zu Art. 42–135 BV N. 10; Neier, Onlinekommentar zu Art. 42 BV, N. 22). Saladin (Bund und Kantone, ZSR 103 [1984] II, pp. 481–483) and Thalmann (Die verfassungsrechtliche Stellung der Kantone, 2000, pp. 92 f.) considered a federal competence by virtue of customary law to be possible. Bellanger (CR BV, Art. 42 N. 43) regards this as theoretically conceivable but incompatible with Art. 42 FC. The Federal Supreme Court has not issued a definitive pronouncement on this question de lege lata; it treats implied competences with restraint and examines them consistently in the context of the relevant subject-matter provision.

N. 19 Concept of «federal task» in special legislation. A practically significant interpretive question concerns the concept of «federal task» in special legislation, in particular Arts. 2 and 12 of the Federal Act on the Protection of Nature and Cultural Heritage (NHG) and Art. 78 para. 2 FC. The Federal Supreme Court clarified the conditions in detail in BGE 139 II 271 E. 9 ff.: a federal task exists where the contested act concerns a subject matter that falls within the competence of the Confederation and is governed by federal law; the mere application of federal law does not suffice. What is decisive is a specific federal task with a connection to the particular protective purpose of the provision. This case law is based on the interpretation of the relevant subject-matter provision and confirms the position taken in legal doctrine that Art. 42 FC as such provides no direct judicial basis.

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#6. Practical Notes

N. 20 Two-step competence examination. When examining whether the Confederation is competent for a particular subject area, the following approach is recommended: in the first step, it must be examined whether an express competence provision of the Federal Constitution (in particular Arts. 54–125 FC) applies. Only if this is affirmed does the subject-matter provision itself determine, in the second step, the scope and legal effects of the federal competence on cantonal competences. Art. 42 FC serves as an orienting provision in this process, but does not replace the analysis of the relevant subject-matter provision.

N. 21 Relationship to Art. 3 FC and fiscal sovereignty. When delimiting tax-raising competences among the Confederation, cantons and communes, the following applies: the residual general competence of the cantons under Art. 3 FC in conjunction with Art. 42 FC means that everything not falling within the Confederation's sphere of competence remains within cantonal jurisdiction (BGE 140 I 176 E. 7.1). Federal competences in a subject area (e.g. spatial planning under Art. 75b FC) do not automatically preclude cantonal or communal regulation in related areas not exhaustively governed by federal law, unless the federal regulation is comprehensive and exhaustive (BGE 140 I 176 E. 7.2).

N. 22 New federal competences require constitutional revision. It is of central importance for legislative practice that the Confederation requires a constitutional basis for new tasks. Mere federal statutes cannot establish new federal competences that are not already provided for in the Constitution. In the absence of a constitutional basis, an impermissible expansion of competence results (Biaggini, BSK BV, Art. 42 N. 35; Tschannen, Staatsrecht, N. 749–751). A constitutional amendment requires a mandatory popular referendum (Art. 140 para. 1 lit. a FC) and a double majority of the people and the cantons.

N. 23 Delegation of task performance. The Confederation may delegate the performance of its tasks to cantons, communes or private parties (e.g. through subsidy legislation, service agreements or concessions). Constitutional responsibility for task performance remains with the Confederation; it must provide for appropriate supervisory and control mechanisms. In the case of concurrent competences, the derogatory effect of federal law (Art. 49 FC) must be observed: federal law takes precedence over contrary cantonal law.

Art. 42 BV

#Case law

#I. Principles of federal competences and distribution of tasks

BGE 122 I 70 (22 February 1996) Regarding cantonal competences for restrictions on hang-gliding take-offs and landings in alpine areas; demarcation of competences between the Confederation and cantons in cases of concurrent federal competence. The decision clarifies the scope of federal competences and their relationship to residual cantonal competence under Art. 3 Cst.

«The cantons are sovereign insofar as their sovereignty is not limited by the Federal Constitution (Art. 3 Cst.). They have original legislative competence, which is only abolished insofar as the Confederation either has exclusive competence with originally derogatory effect, or has made conclusive use of its competence in an area where it has concurrent competence with subsequently derogatory effect.»

#II. Tax law and municipal competences

BGE 140 I 176 (27 March 2014) Regarding the second home tax of the municipality of Silvaplana; classification as tax or causation charge; municipal competence despite federal tasks in spatial planning. The decision shows the limits of federal competences in the case of municipal steering taxes, even when the Confederation is active in related areas.

«The second home initiative adopted in the federal popular vote of 11 March 2012 and the newly created Art. 75b Cst. do not contain a comprehensive and thus conclusive solution to the problem of so-called 'cold beds' and therefore do not preclude the municipal second home tax in dispute here.»

BGE 142 II 182 (24 May 2016) Regarding local jurisdiction for the federal tax assessment of a capital payment; tax law principle of legality from the perspective of statutory and constitutional reservation. The decision concretises the principle of legality for federal tasks in the tax area.

«The tax law principle of legality requires that every charge be based on a sufficiently specific legal foundation. This requirement applies both to the material design of the charge and to the allocation of competences in its collection.»

#III. Electronic administration and procedural law

Judgment 2C_113/2024 (3 December 2024) Regarding amendment of the Administrative Court Procedure Act of the Canton of Zurich concerning electronic procedural acts; mandatory requirement for professional party representatives. The current decision shows the limits of cantonal procedural design in federal tasks.

«The cantons are basically free in the design of their administrative procedures, insofar as federal law does not conflict. However, when introducing mandatory electronic procedural acts, the fundamental rights of the parties to proceedings must be observed.»

#IV. Political rights and cantonal organisation

BGE 143 I 92 (12 October 2016) Regarding the election of a cantonal parliament in a mixed electoral procedure with elements of the majority and proportional principles; electoral equality in cantonal elections. The decision concerns the organisational limits of cantonal autonomy in design.

«The cantons are largely free in the design of their political system and electoral procedure. Art. 39 para. 1 Cst. states that the cantons - in accordance with their organisational autonomy - regulate the exercise of political rights in cantonal and municipal matters.»

BGE 147 I 183 (16 September 2020) Regarding the compatibility of the cantonal popular initiative «Fundamental rights for primates» with superior law; limits of cantonal constitutional legislation. The decision shows the barriers to cantonal autonomy in design when introducing fundamental rights.

«A popular initiative is invalid in the Canton of Basel-Stadt if it violates superior law. Cantonal fundamental rights must be compatible with the fundamental rights of the Federal Constitution and the ECHR.»

#V. Demarcation of competences regarding gaming machines

BGE 125 II 152 (1999) Regarding the demarcation of federal and cantonal competences in the authorisation of gaming machines; scope of federal competence for casinos. The decision illustrates the functioning of concurrent competences.

«By issuing the federal gaming machine ordinance, the Federal Council has not encroached upon cantonal competence. The cantons have no entitlement to continue the previous practice of gaming machine homologation.»