#1. Legislative History

N. 1 Art. 43 BV was created as part of the total revision of the Federal Constitution in 1999. The provision had no direct precedent in the 1874 Federal Constitution. The norm arose from the conviction of the constitutional reform commission that federalist principles should be anchored more explicitly (BBl 1997 I 1, 232). The Federal Council's message emphasises that Art. 43 BV, together with Art. 42 BV, forms a coherent system of division of tasks between the Confederation and the cantons (BBl 1997 I 234).

N. 2 The historical Art. 43 of the 1874 Federal Constitution regulated the political rights of foreign nationals and has no substantive connection with the current provision. The new norm is part of the 3rd Title «Confederation, Cantons and Communes» and specifies the federalism enshrined in Art. 3 BV.

#2. Systematic Classification

N. 3 Art. 43 BV stands in systematic connection with the federalist basic norms of the Federal Constitution. It supplements Art. 3 BV (cantonal sovereignty) and stands in complementary relationship to Art. 42 BV (tasks of the Confederation). While Art. 42 BV emphasises the constitutional reservation for federal competences, Art. 43 BV confirms cantonal autonomy in tasks.

N. 4 The norm must be read in the context of the entire 1st Chapter of the 3rd Title: → Art. 43a BV (principles of task allocation), → Art. 44 BV (principles of cooperation), → Art. 45 BV (participation), ↔ Art. 46 BV (implementation of federal law), ↔ Art. 47 BV (independence of the cantons) and → Art. 48 BV (treaties between cantons).

#3. Elements of the Provision / Content of the Norm

N. 5 The provision of Art. 43 BV contains three essential elements:

N. 6 «The cantons»: The addressees of the norm are the 26 cantons as member states of the Federal Constitution. The provision does not address communes or other public-law corporations, although the cantons may delegate their tasks to them (→ Art. 50 BV).

N. 7 «determine»: The cantons have decision-making autonomy in the question of whether and how they perform tasks. This autonomy encompasses the organisation of task fulfilment, the choice of means and priority setting (Schweizer, SG-Komm. BV, Art. 43 N. 4).

N. 8 «which tasks they [...] fulfil»: The concept of «tasks» differs from «competences». While competences mean powers in the sense of authorisations, with tasks the obligatory character is in the foreground. The cantons can in principle decide for themselves which public tasks they wish to undertake.

N. 9 «within the scope of their competences»: This restriction is central. Cantonal autonomy in tasks exists only insofar as the Federal Constitution leaves competences to the cantons at all. The wording is imprecise insofar as it suggests an extensive freedom that does not actually exist.

#4. Legal Consequences

N. 10 Art. 43 BV does not establish new cantonal competences, but confirms the autonomy in tasks already flowing from Art. 3 BV. The practical significance of the norm is therefore modest.

N. 11 The cantons may, within the scope of their competences:

• Create new tasks or abolish existing ones
• Freely design the organisation of task fulfilment (organisational autonomy)
• Delegate tasks to communes or third parties
• Join together for common task fulfilment (→ Art. 48 BV)

N. 12 Cantonal autonomy in tasks is, however, frequently restricted by federal law. Federal requirements may limit cantonal freedom in the following forms:

• Obligatory task fulfilment through federal acts
• Organisational requirements (e.g. demand for cantonal unified authority)
• Minimum standards and quality requirements
• Financial incentives and subsidy conditions

#5. Disputes

N. 13 Relationship to Art. 3 BV: Biaggini takes the position that Art. 43 BV has no independent legal significance and only repeats what already follows from Art. 3 BV. Schweizer, on the other hand, sees in Art. 43 BV an important specification of the federalism principle with its own normative content (SG-Komm. BV, Art. 43 N. 2).

N. 14 Delimitation from Art. 47 BV: Schweizer points to delimitation difficulties between Art. 43 BV (autonomy in tasks) and Art. 47 BV (independence). While Art. 43 BV concerns functional autonomy, Art. 47 BV protects the institutional independence of the cantons.

N. 15 Scope of the restriction: Doctrine is divided on the scope of the formulation «within the scope of their competences». Biaggini criticises the imprecise wording, which suggests greater autonomy than actually exists. Other authors see in this a necessary clarification of the federal structure of competences.

#6. Practical Guidelines

N. 16 When examining cantonal task fulfilment, the question of competence must always be clarified first. Only if a matter falls within cantonal competence does Art. 43 BV apply.

N. 17 The cantons should observe the following federal requirements when designing tasks:

• Protection of fundamental rights (→ Art. 35 BV)
• Legal equality (→ Art. 8 BV)
• Proportionality (→ Art. 5 para. 2 BV)
• Primacy of federal law (→ Art. 49 BV)

N. 18 In intercantonal cooperation, it must be examined whether joint task fulfilment requires a contractual basis according to Art. 48 BV. Mere coordination without legal obligation does not require a formal concordat.

N. 19 Communes cannot invoke Art. 43 BV directly, as they are not addressees of the norm. Their autonomy in tasks is governed by cantonal constitutional law and Art. 50 BV.

#Principles of Cantonal Task Allocation

BGE 128 I 254 of 14 August 2002
The Federal Supreme Court holds that the cantons are generally free in organising their competencies (organisational autonomy). However, this autonomy may be restricted by federal law when a unified cantonal authority is required to guarantee equality before the law.

«Art. 25 para. 1 SPA establishes the principle of organisational autonomy of the cantons. This principle is restricted in para. 2 insofar as the competence of a cantonal authority is prescribed: While the cantons are usually free to delegate their tasks to the municipalities, Art. 25 para. 2 SPA [...] requires, in the interest of cantonal uniformity and equal application of the law, that all applications for building projects outside building zones be handled by a cantonal authority.»

BGE 141 II 262 of 9 July 2015
Intercantonal organisations may develop their own competencies when fulfilling cantonal tasks. The cantons determine through their participation in intercantonal agreements how they fulfil their tasks.

«Comlot as the licensing authority is authorised, based on a teleological-temporal interpretation of federal and intercantonal law (IVLW), to conduct a classification or qualification procedure in connection with large-scale lotteries and to concretise the generally-abstractly valid lottery prohibition in individual cases.»

#Delimitation between the Confederation and Cantons

BGE 117 Ia 202 of 29 May 1991
In competence conflicts between the Confederation and cantons, it must be examined which level of government is constitutionally responsible for the task. Art. 43 BV only applies insofar as a task lies within cantonal competence at all.

«The subject of the constitutional appeal procedure is solely the question of competence delimitation between the Confederation and canton regarding access to the Confederation's state protection files.»

BGE 122 I 70 of 22 February 1996
The cantons remain competent for areas that the Confederation has not comprehensively regulated. The cantonal residual competence under Art. 3 BV is concretised through Art. 43 BV in task allocation.

«Art. 37ter BV gives the Confederation comprehensive but not exclusive competence in the field of aviation. The cantons remain competent for legal questions that the Confederation has not comprehensively regulated.»

#Historical Case Law on Art. 43 old BV (Political Rights)

BGE 122 I 209 of 30 September 1996
Under the old Federal Constitution of 1874, Art. 43 old BV regulated the political rights of those resident but not domiciled. This provision required equal treatment of all Swiss citizens in cantonal measures.

«It is appropriate to examine the constitutionality, with regard to Art. 43 para. 4 Const., of the deadline imposed on Swiss citizens by Art. 23 let. b of the cantonal law. [...] The principle of equal treatment enshrined in favour of all Swiss citizens by Art. 43 Const. applied to measures that the cantons took to combat the effects of the crisis.»

BGE 89 I 448 from the beginning of 1963
The cantons may freely determine their organisational forms within constitutional limits. Municipalities as subordinate bodies must adhere to the organisational forms prescribed by the canton.

«In voting complaints under Art. 85 lit. a OG, the Federal Supreme Court examines not only the interpretation of federal law and cantonal constitutional law freely, but also that of other cantonal provisions insofar as they regulate voting rights in terms of content and scope.»

#Intercantonal Competence Conflicts

BGE 129 I 419 of 27 October 2003
In negative competence conflicts between cantons, the Federal Supreme Court decides on the competence of state authorities. The cantons cannot unilaterally determine that other cantons are responsible for specific tasks.

«In the case of a negative competence conflict, the guardianship authority at the child's place of residence is competent for child protection measures, without having to examine whether the guardianship authority at the habitual residence would not be preferable due to the principle of the child's welfare.»

BGE 129 V 485 of 20 August 2003
Cantonal authorities may transfer their competencies through formal delegation to subordinate bodies. However, this must be done legally correctly and may not impair oversight.

«The delegation of competence for individual tasks of the cantonal office to the Regional Employment Centres (RAV) [...] requires a formal decree subject to the canton's publication requirements.»