1Der Bund übernimmt nur die Aufgaben, welche die Kraft der Kantone übersteigen oder einer einheitlichen Regelung durch den Bund bedürfen.
2Das Gemeinwesen, in dem der Nutzen einer staatlichen Leistung anfällt, trägt deren Kosten.
3Das Gemeinwesen, das die Kosten einer staatlichen Leistung trägt, kann über diese Leistung bestimmen.
4Leistungen der Grundversorgung müssen allen Personen in vergleichbarer Weise offenstehen.
5Staatliche Aufgaben müssen bedarfsgerecht und wirtschaftlich erfüllt werden.
Art. 43a BV — Overview
Art. 43a BV establishes the principles according to which state tasks are distributed and fulfilled between the Confederation, cantons and communes. The provision was created in 2008 as part of the reform of fiscal equalisation and the distribution of tasks (NFA) and is primarily addressed to the legislature (BBl 2001 2358).
All levels of government — Confederation, cantons and communes — must adhere to these principles when distributing and fulfilling tasks. However, the provision has no direct justiciability (lack of enforceability before the courts) according to unanimous doctrine, as Biaggini notes (BSK BV, Art. 43a N. 5). Citizens cannot directly invoke Art. 43a BV.
Subsidiarity (paragraph 1): The Confederation only assumes tasks that the cantons cannot fulfil or that require uniform regulation. Example: National defence requires a nation-wide solution, while school education is in principle regulated at cantonal level.
Fiscal equivalence (paragraphs 2-3): Those who benefit from state services should also bear the costs. In cases of cross-cantonal benefits, costs are to be distributed accordingly. Example: A hospital near the border treats patients from neighbouring cantons — these must contribute to the costs.
Basic services (paragraph 4): The Confederation and cantons jointly ensure adequate basic services, for example in postal services, telecommunications or public transport. However, this does not create specific entitlements, as the Federal Council has emphasised (Biaggini, BSK BV, Art. 43a N. 36).
Economic efficiency (paragraph 5): All levels of government must fulfil their tasks economically and appropriately. The Federal Supreme Court confirmed in BGE 147 II 227 that this also includes the assertion of state claims.
The principles act primarily as guidance for the legislature and as an aid to interpretation. Violations cannot be directly challenged, but only through other constitutional norms such as the rule of law principle (Art. 5 BV) or legal equality (Art. 8 BV). In political discussion, the principles serve as an important basis for arguments in favour of an appropriate division of tasks in the federal state.
The practical significance is shown particularly in legislative procedures, where compliance with the principles must be justified in messages, as well as in inter-cantonal cooperation, where fiscal equivalence must be ensured.
N. 1 Art. 43a Cst. was inserted into the Federal Constitution as part of the reform of fiscal equalisation and the distribution of tasks between the Confederation and the Cantons (NFA). The provision entered into force on 1 January 2008 (AS 2007 5765). It codifies essential principles of the federalist distribution of tasks that were previously only partially and unsystematically enshrined in various constitutional provisions.
N. 2 The Federal Council message on the reform of fiscal equalisation of 14 November 2001 (BBl 2001 2291, esp. 2358 ff.) describes Art. 43a Cst. as the «centrepiece of the new federal distribution of tasks». The provision aims to increase the efficiency of the performance of public tasks and to allocate responsibilities more clearly. In particular, it should ensure fiscal equivalence — the concordance of benefits, costs and decision-making powers.
N. 3 The legislative history shows that the constitutional legislator deliberately wanted to establish programmatic principles that are primarily addressed to the legislature. As the Federal Council stated in the message: «Article 43a paragraph 4 does not create enforceable rights» (Biaggini, BSK BV, Art. 43a N. 36).
N. 4 Art. 43a Cst. is located in Title 3 («Confederation, Cantons and Communes») and, together with Art. 42 and 43 Cst., forms the constitutional framework of the distribution of tasks in the Swiss federal state. While Art. 42 Cst. regulates the powers of the Confederation and Art. 43 Cst. the tasks of the Cantons, Art. 43a Cst. sets out the overarching principles for the assignment and performance of public tasks.
N. 5 The systematic position between the competence provisions underscores its character as a structural norm of federalism. Art. 43a Cst. is closely related to:
→ Art. 3 Cst. (Cantonal sovereignty and subsidiarity)
→ Art. 5a Cst. (Principle of subsidiarity)
→ Art. 46 Cst. (Implementation of federal law)
→ Art. 47 Cst. (Autonomy of the Cantons)
→ Art. 48 Cst. (Treaties between Cantons)
N. 6 According to the unanimous view in doctrine, the principles of Art. 43a Cst. are not suitable as a standard for judicial review (Biaggini, BSK BV, Art. 43a N. 5). The provision primarily takes effect as a guideline for the legislature in structuring the distribution of tasks.
N. 7 Art. 43a para. 1 Cst. concretises the principle of subsidiarity enshrined in Art. 3 and 5a Cst. for the assignment of tasks. The Confederation only takes on those tasks that the Cantons cannot perform or that require uniform regulation.
N. 8 According to doctrine, the takeover criteria are to be understood cumulatively:
Inability of the Cantons: The strength of the Cantons is insufficient to perform the task
Need for uniformity: Federal diversity would lead to intolerable results
N. 9 According to Schweizer/Müller, inability or unwillingness of individual Cantons is not sufficient for the strength criterion (cited in Biaggini, BSK BV, Art. 43a N. 17). It must be a structural inability that affects several or all Cantons.
N. 10 The principle of fiscal equivalence requires a broad congruence between:
Circle of beneficiaries of a public service
Circle of cost bearers
Circle of decision makers
N. 11 Para. 2 establishes a duty to internalise spillover effects. When a public task benefits beyond the territory of the performing public body, mechanisms for burden sharing must be provided.
N. 12 Para. 3 concretises this duty for intercantonal cooperation. The Cantons are obliged to cooperate on tasks with a supra-regional character and to distribute costs fairly.
N. 13 The basic services clause obligates the Confederation and Cantons jointly to ensure adequate basic services. The term «basic services» is not defined in the Constitution, but according to prevailing doctrine includes at least:
Transport infrastructure (→ Art. 81a Cst.)
Postal services (→ Art. 92 Cst.)
Telecommunications (→ Art. 92 Cst.)
Energy supply (→ Art. 89 Cst.)
Education (→ Art. 19, 61a ff. Cst.)
Healthcare (→ Art. 117 Cst.)
N. 14 The Federal Council explicitly stated that Art. 43a para. 4 Cst. does not create enforceable rights (Biaggini, BSK BV, Art. 43a N. 36). The provision is addressed to the legislature, not to the law-applying authorities.
N. 17 The programmatic nature of Art. 43a Cst. shapes the legal consequences. The provision primarily takes effect as:
Interpretive aid in interpreting competence norms
Design guideline for the legislature
Argumentative topos in political discussion
N. 18 The lack of justiciability means that violations of Art. 43a Cst. cannot be independently challenged. However, the principles can have reflexive effect through other, justiciable norms, such as:
Art. 5 Cst. (Rule of law) in case of gross disregard of the principles
Art. 8 Cst. (Equality before the law) in case of arbitrary task allocation
Art. 127 Cst. (Budgetary principles) in economic performance of tasks
N. 19 For intercantonal cooperation (para. 3), part of the doctrine considers there may be an «obligation to contract» under certain circumstances (Biaggini, «Vertragszwang» im kooperativen Föderalismus, ZBl 2008, 345). The prevailing view rejects this and sees only a political obligation.
N. 20 The lack of justiciability of Art. 43a Cst. is largely undisputed in doctrine (Biaggini, BSK BV, Art. 43a N. 5; Waldmann/Borter, Rechtsprechung zum Schweizerischen Föderalismus, Anhang III zum Monitoringbericht Föderalismus 2011–2013). However, partial justiciability through other constitutional norms is occasionally advocated.
N. 21 There is disagreement about how strictly the principle of subsidiarity should be handled. While Rhinow (BV 2000, 74) argues for a restrictive interpretation, Richli (ZSR 2007 I 47) favours flexible handling in individual cases. Practice tends towards the flexible solution.
N. 22 The scope of constitutionally guaranteed basic services is disputed. While the minimalist position only includes areas explicitly mentioned in the Constitution, an expansive view argues for a dynamic interpretation based on social needs (Biaggini, ZBl 2015, 113).
N. 23 Richli (ZSR 2007 I 47, 82 f.) advocates the thesis of a «proceduralisation» of subsidiarity: the material content would be concretised through procedural duties. This position has not prevailed, but finds some support in the evaluation duty (→ Art. 170 Cst.).
N. 24 In legislation, the principles of Art. 43a Cst. must be incorporated early. In particular, messages must explain:
Why federal regulation is necessary (subsidiarity)
How fiscal equivalence is ensured
What effects on basic services exist
How economic performance of tasks is ensured
N. 25 In the application of law, the principles serve as an interpretive aid. Where several interpretations are possible, preference should be given to the one that best corresponds to the principles of Art. 43a Cst.
N. 26 For intercantonal cooperation, it is recommended to follow the model contracts of the Conference of Cantonal Governments (KdK). These take into account the requirements of fiscal equivalence.
N. 27 Economic performance of tasks (para. 5) requires in practice:
Periodic review of task performance
Benchmarking between comparable public bodies
Documentation of economic considerations
Consideration when asserting public claims (BGE 147 II 227)
N. 28 Despite the lack of direct justiciability, the principles of Art. 43a Cst. should be used as a basis for argumentation in consultations, parliamentary debates and political discussions. They form the constitutional standard for an appropriate distribution of tasks in the federal state.
BGE 147 II 227 of 18 March 2021 — Administrative assistance for competition law damages claims
The Federal Court confirmed the significance of Art. 43a para. 5 Cst. for cantonal task fulfilment. The Canton of Aargau requested access to files from a competition law sanctions procedure to examine damages claims against submission cartels.
«The second and third aspects of the request concern issues related to the requirement of economic task fulfilment. According to Art. 43a para. 5 Cst., which is also addressed to the cantons and municipalities, state tasks must be fulfilled economically.»
The Court held that the assertion of damages claims constitutes a legal task that serves economic task fulfilment under Art. 43a para. 5 Cst. The constitutional obligation for efficient and economic task fulfilment also includes the assertion of state claims against third parties.
BGE 138 I 378 of 3 July 2012 — Cantonal Property Insurance Glarus
The Federal Court clarified the constitutional principles for entrepreneurial state activity in the context of economic freedom (Art. 27 and 94 Cst.).
«Entrepreneurial activity by the state is compatible with the principle of economic freedom (Art. 94 para. 4 Cst.) provided there is a formal legislative basis, the activity is in the public interest and proportionate, and the principle of competitive neutrality is maintained.»
These principles concretise the principles enshrined in Art. 43a Cst. for the allocation and fulfilment of state tasks:
«If a state enterprise operates with the same rights and obligations as a private entrepreneur and in competition with it, this merely creates another competitor for private parties, which does not constitute a restriction of individual economic freedom (Art. 27 Cst.) as long as the private offer is not directly displaced by the state measure.»
The Court emphasised the importance of competitive neutrality as a central element of constitutionally compliant task fulfilment:
«Competitive neutrality of entrepreneurial state activity prohibits systematic cross-subsidisation between monopoly and competition areas.»
The case law of the Federal Administrative Court concretises the application of Art. 43a Cst. in subsidy law:
BVGer B-8207/2010 of 22 March 2011 — Granting of subsidies
The Federal Administrative Court examined the admissibility of subsidies under the aspects of constitutional principles for state tasks.
BVGer B-4513/2012 of 26 March 2013 — Subsidisation of vocational education
In subsidising vocational education measures, the Court applied the principles regarding the distribution of tasks between the Confederation and cantons.
#Access to information as an instrument of task control
BVGer A-6320/2014, A-6334/2014, A-6315/2014 of 23 August 2016 — Public access principle
The courts recognised the connection between the public access principle and constitutional control of state task fulfilment according to Art. 43a Cst.