1The Confederation and the Cantons shall support each other in the fulfilment of their duties and shall generally cooperate with each other.
2They owe each other a duty of consideration and support. They shall provide each other with administrative assistance and mutual judicial assistance.
3Disputes between Cantons or between Cantons and the Confederation shall wherever possible be resolved by negotiation or mediation.
Art. 44 Cst. — Principles of Cooperation
#Overview
Art. 44 Cst. regulates cooperation between the Confederation and the 26 cantons. The provision obliges all state levels to mutual assistance and consideration.
Who is affected? All federal authorities, cantonal governments, cantonal administrations and courts must cooperate in fulfilling their tasks. This concerns, for example, the police of different cantons in cross-border investigations or tax administrations in clarifying questions of residence.
What does the provision specifically require? The Confederation and cantons must mutually support each other and show consideration for one another (Waldmann/Kraemer, BSK BV, Art. 44 N. 5). This is called federal loyalty and corresponds to the duty of mutual assistance between spouses under the Civil Code (Biaggini, BSK BV, Art. 44 N. 7). In addition, they owe each other administrative and judicial assistance. Administrative assistance means support in administrative proceedings, for example through information exchange. Judicial assistance encompasses support in court proceedings.
Legal consequences: In disputes between state levels, negotiations and mediation must first be attempted. The Federal Supreme Court decides only if these discussions fail. Violations of the cooperation obligation may be challenged by appeal (Art. 189 Cst.).
Example: A canton requires files from a federal authority for a cartel proceeding. The authority must make the documents available according to Art. 44 para. 2 Cst., provided no confidentiality obligations oppose this (BGE 147 II 227). If a canton wrongfully refuses cooperation in tax collection, it must forward the collected amounts to the competent canton (BGE 151 II 101).
Art. 44 FC — Principles of Cooperation
#Doctrine
#1. Legislative History
N. 1 Art. 44 FC is a new creation of the total revision of 1999. The Federal Constitution of 1874 contained no corresponding explicit provision; the principles of federal loyalty and intercantonal cooperation had been developed there exclusively through case law. In the Federal Council's Message (BBl 1997 I 595 f.), it described the express entrenchment of cooperative federalism as a constitutional principle as a central concern: the Confederation and the cantons should be bound not merely in a formal-hierarchical manner, but as partners within a shared constitutional structure.
N. 2 The original preliminary draft version (PE 1995, commented on separately in the explanatory report for a different Art. 44) provided for a four-paragraph structure in which, alongside cooperation, consideration, and administrative assistance, the principle of subsidiarity was also to be expressly enshrined. Under pressure from the cantons, which preferred a substantive formulation of the principle of subsidiarity over mere nomenclature, Parliament agreed on the three-paragraph structure in force today: the principle of subsidiarity was relocated to Art. 5a FC, and Art. 44 FC is confined to cooperation (para. 1), mutual obligations (para. 2), and dispute resolution (para. 3).
N. 3 In the Council of States, rapporteur Frick (C, SZ) emphasised the substantive superiority of the Council of States version, which expressed the principle of subsidiarity in content rather than merely naming it: «Nur die Aufgaben, welche einer einheitlichen Regelung in der ganzen Eidgenossenschaft bedürfen, werden dem Bund übertragen. Mit der Fassung des Ständerates gewinnt die Verfassung einiges an Klarheit.» In the National Council, several members — notably Gysin Remo (S, BS), von Allmen Hansueli (S, BE), and Banga Boris (S, SO) — moved that the municipalities be expressly named as a third co-equal level alongside the Confederation and the cantons in Art. 44 (then Art. 34). Leuba Jean-François (L, VD) opposed this and pointed out that municipalities formed part of a canton and were represented by it: «Les communes font partie d'un canton et sont représentées par les cantons.» The National Council ultimately followed the systematic approach of the Council of States. The final votes in both chambers took place on 18 December 1998.
N. 4 Compared to the preliminary draft, the dispute resolution clause (para. 3) was refined: the phrase «where possible» («dans la mesure du possible») clarifies that recourse to the courts — in particular the action before the Federal Supreme Court pursuant to Art. 189 para. 1 lit. d FC — is not excluded, but is to be considered only subsidiarily. This solution corresponds to the objective formulated in the Federal Council's draft Message (BBl 1997 I 207 ff.) of resolving federal disputes primarily through dialogue.
#2. Systematic Classification
N. 5 Art. 44 FC is situated in the third chapter of the second title («Confederation and Cantons») and, together with Arts. 45–49 FC, forms the normative core of cooperative federalism. The provision is by its nature an organisational norm with dual effect: on the one hand it establishes subjective obligations of the territorial bodies in relation to one another (horizontal and vertical dimension), but it does not contain directly enforceable individual rights of private persons.
N. 6 Art. 44 FC is closely linked to ↔ Art. 3 FC (sovereignty of the cantons), ↔ Arts. 42 f. FC (tasks of the Confederation and the cantons), and → Art. 5a FC (principle of subsidiarity). The duty of loyalty under Art. 44 para. 2 FC flows directly from the principle of good faith enshrined in → Art. 5 para. 3 FC; the Federal Supreme Court treats both provisions in conjunction (cf. BGE 151 II 101 at 3.6.5). In relation to intercantonal conflicts, Art. 44 para. 3 FC interacts with → Art. 189 para. 1 lit. d FC, which provides for constitutional action before the Federal Supreme Court as an ultima ratio. The relationship between Art. 44 FC and the supremacy principle of → Art. 49 FC is such that the duty of loyalty does not block the unilateral exercise of federal competence, but restricts the manner of its exercise (consultation, coordination).
N. 7 As a general structural norm, Art. 44 FC exerts its effect primarily in an indirect manner: it serves as an interpretive standard for more specific federal and cantonal legal provisions (e.g. Art. 108 DFTA; Art. 19 FADP) and as the constitutional basis for legal institutions developed through Federal Supreme Court case law, such as the area-specific federal duty of loyalty (BGE 142 II 182 at 3.2.4) and the duty of administrative assistance (BGE 147 II 227 at 2.3.3).
#3. Elements of the Norm / Normative Content
3.1 Para. 1 — Mutual Support and Cooperation
N. 8 Para. 1 establishes the general duty of cooperation. «Support» and «cooperate» are not synonymous terms: «support» covers active assistance where a public body relies on the participation of another in fulfilling its tasks; «cooperate» denotes the ongoing institutional mode of coordination (conferences, agreements, joint administration). Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1006 ff., emphasise that this para. 1 forms the constitutional foundation for the dense network of intercantonal concordats and the conferences of cantonal governments (CCC) as well as the specialised directors' conferences.
N. 9 Cooperation is not limited to voluntary coordination but may be concretised and intensified by federal law (executive federalism; → Art. 46 FC). The Federal Supreme Court has clarified in the context of tax law that the delegation of assessment competence to the cantons (Art. 128 para. 4 FC, Art. 46 para. 1 FC) is an expression of this cooperative obligation and imposes a «duty-right» on the cantons concerned (BGE 142 II 182 at 2.2.4; BGE 151 II 101 at 2.1).
3.2 Para. 2 — Consideration, Assistance, and Mutual Administrative and Legal Assistance
N. 10 Para. 2 sentence 1 enshrines federal loyalty («consideration and assistance»). Federal loyalty is the oldest institution of Swiss federal constitutional law; even under the FC 1874 — without an express basis — it required conduct compatible with the federal interest (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 2100 f.). The re-entrenchment in Art. 44 para. 2 FC codifies this customary law. In substance, federal loyalty requires:
- each public body, when fulfilling its own tasks, to take into account the interests of the others (duty of consideration);
- active participation where another public body requires assistance (duty of support).
N. 11 Federal loyalty operates bilaterally: the Confederation must show consideration for the cantons and vice versa. This includes the requirement that the Confederation take cantonal implementation interests into account during legislation, and that the cantons apply federal statutory provisions faithfully in their implementation. Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 729, emphasise that the duty of loyalty does not create an absolute obligation but a duty to balance interests: each public body may safeguard its own interests, but must keep the federal collective interest in view.
N. 12 Para. 2 sentence 2 concretises the duty of loyalty through the obligation of mutual administrative and legal assistance. Administrative assistance refers to the exchange of information and data between authorities for the purpose of fulfilling their respective statutory tasks; legal assistance encompasses enforcement and execution assistance in the context of judicial and administrative proceedings. In BGE 147 II 227 at 2.3.3, the Federal Supreme Court held that Art. 44 para. 2 FC obliges the Confederation and the cantons to provide administrative assistance, but that this obligation is limited by the principle of proportionality in its tension with data protection law (Art. 19 FADP). Under current law, administrative assistance requires an individual case, a statutory task of the recipient authority, and the indispensability of the data requested (ibid., at 5.4.2).
N. 13 The Federal Supreme Court has developed an area-specific intensification of the duty of loyalty in intercantonal tax law. In BGE 142 II 182 at 3.2.4, it derived from Art. 44 para. 2 FC a duty on the part of the receiving canton to inform the canton in which the tax claim arises about capital benefits from pension funds; the fulfilment of this duty interrupts the running of the limitation period. This case law was continued in BGE 151 II 101 at 3.7.2, where the Federal Supreme Court derived directly from Art. 44 paras. 1 and 2 FC that a non-competent, enriched canton is obliged to forward the cantonal share of the direct federal tax to the entitled canton ex officio — without reversal «in a triangular arrangement».
3.3 Para. 3 — Dispute Resolution through Negotiation and Mediation
N. 14 Para. 3 establishes for disputes between cantons inter se or between cantons and the Confederation the principle of priority of out-of-court resolution. The phrase «where possible» («dans la mesure du possible») does not prescribe a strict obligation to negotiate, but imposes an obligation to make a genuine attempt at consensual resolution before pursuing judicial or federal supervisory avenues.
N. 15 The term «disputes» in para. 3 covers genuine legal disputes, not merely political differences of opinion. The determining factor is whether a justiciable legal position is in contention between the public bodies. In BGE 151 II 136 at 4.6, the Federal Supreme Court clarified that Art. 44 para. 3 FC does not apply where there is no actual legal dispute between the Confederation and a canton, but rather an administrative dispute between private parties and a federal authority, to which a canton merely opposes a diverging position.
N. 16 The instruments of out-of-court dispute resolution available include: direct negotiations between the governments, mediation by neutral third parties (e.g. other cantons, the Federal Chancellery), concertation within the framework of the CCC, and formal conciliation proceedings. The reference to «negotiation and mediation» is not exhaustive; other consensual procedures are also covered. The Federal Supreme Court as constitutional court (Art. 189 para. 1 lit. d FC) constitutes the judicial backstop where out-of-court avenues fail.
#4. Legal Consequences
N. 17 Art. 44 FC does not establish subjective rights of private persons. Private individuals cannot invoke Art. 44 FC directly to demand a specific cooperative conduct from the Confederation or the cantons. The provision is addressed exclusively to the public bodies as bearers of state authority (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 2103). Violations of federal loyalty may, however, be indirectly relevant: where the Federal Supreme Court applies federal loyalty as an interpretive standard for statutory norms, a violation thereof affects the outcome of the application of those norms (→ BGE 142 II 182 at 3.2.4).
N. 18 A breach of the duty of loyalty by a canton may have the following consequences:
- nullity of a ruling issued in excess of federal statutory competences (BGE 151 II 101 at 3.5.1–3.5.3);
- federal supervisory measures by the Federal Council (→ Art. 186 para. 4 FC) in the event of systematic non-fulfilment of federal statutory obligations;
- imposition of procedural costs for conduct contrary to the duty of loyalty in Federal Supreme Court proceedings (BGE 151 II 101 at 3.7.4; Art. 66 para. 1 sentence 2 SCA).
N. 19 The duty of mutual administrative and legal assistance (para. 2 sentence 2) takes effect primarily through concretisation in specific federal statutes (e.g. Art. 19 FADP, Art. 111 DFTA, Art. 39 para. 2 THA). Where no special statutory basis exists, Art. 44 para. 2 FC may serve as a direct constitutional basis for the duty of administrative assistance, provided that it is proportionate and materially necessary (BGE 147 II 227 at 5.4.5.1; BGE 151 II 101 at 3.7.2).
#5. Points of Controversy
N. 20 Normative character and justiciability of federal loyalty: It is disputed whether federal loyalty under Art. 44 para. 2 FC establishes an independent constitutional claim of the cantons against the Confederation (and vice versa) that can be enforced before the Federal Supreme Court. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1011, affirm the justiciability in principle, but note that the Federal Supreme Court regularly ties the enforcement of federal loyalty to more specific norms. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 2103, by contrast, emphasise the political dimension: federal loyalty is a structural principle to be secured primarily through political-institutional means, not through individual action. Federal Supreme Court practice tends to support the latter position: actions based solely on Art. 44 FC rarely succeed; the Federal Supreme Court invariably concretises the duty of loyalty with reference to area-specific norms.
N. 21 Relationship between para. 2 and data protection legislation: The question of whether Art. 44 para. 2 FC operates as a superior lex superior vis-à-vis data protection law (Art. 13 FC; FADP), or whether a case-by-case balancing is required, is controversial. The Federal Supreme Court, in BGE 147 II 227 at 5.4.5.1, adopted an equivalence approach: Art. 19 para. 1 lit. a FADP and Art. 19 para. 1 preamble FADP are both to be understood as a balance between Art. 44 para. 2 FC (duty of administrative assistance) and the fundamental rights to protection of personal privacy; «the same standard» is to be applied to both provisions. This case law corresponds to the majority view in legal scholarship, according to which administrative assistance must always be designed in a proportionate manner (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, pp. 729 f.).
N. 22 Scope of para. 3 (dispute resolution obligation): It is disputed how far the obligation to pursue out-of-court dispute resolution extends and whether Art. 44 para. 3 FC may in a specific case constitute an admissibility requirement for an action before the Federal Supreme Court (the so-called «pre-proceedings requirement»). The Message (BBl 1997 I 208) and legal scholarship (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1012) deny a formal admissibility requirement: the phrase «where possible» permits a direct action where negotiations are manifestly futile. The Federal Supreme Court has thus far left this question open; in BGE 151 II 136 at 4.6 it merely confirmed that Art. 44 para. 3 FC does not apply where there is no genuine legal dispute between the Confederation and a canton.
#6. Practical Notes
N. 23 Executive federalism and tax law: The most practically significant application of Art. 44 paras. 1 and 2 FC lies in executive federalism in tax law. Cantons that claim the direct federal tax without having local competence to do so act in breach of the duty of loyalty; their rulings are null and void (BGE 151 II 101 at 3.5.1 ff.). The non-competent canton is obliged ex officio to invoke the SFTA (Art. 108 para. 1 DFTA) and to forward the cantonal share to the entitled canton (ibid., at 3.7.2). Practitioners should, in cases of conflicts of competence, always seek a declaratory ruling from the SFTA (Art. 108 DFTA) before lodging actions before the Federal Supreme Court.
N. 24 Administrative assistance and data protection: Cantonal and federal authorities must, when dealing with requests for administrative assistance, always examine whether (i) a concrete individual case is present, (ii) the data are indispensable for the fulfilment of a statutory task, and (iii) the principle of proportionality is observed (BGE 147 II 227 at 5.4.2). Administrative assistance is not contingent on the formal entry into force of the underlying proceedings (ibid., at 5.4.8.1). Trade secrets and data of uninvolved third parties remain protected at all times.
N. 25 Intercantonal disputes: Where cantons enter into legal disputes with one another or with the Confederation, Art. 44 para. 3 FC obliges them to make a genuine effort to exhaust the avenue of negotiation before bringing a constitutional action before the Federal Supreme Court (Art. 189 para. 1 lit. d FC). In practice, intercantonal disputes regularly proceed via the Conference of Cantonal Governments (CCC) or specific specialised directors' conferences. Only when this dialogue fails is recourse to the Federal Supreme Court available — even though Art. 44 para. 3 FC does not prescribe a formal admissibility requirement for bringing an action.
N. 26 Duty of cooperation in the legislative phase: The Federal Council is obliged by Art. 44 paras. 1 and 2 FC to consult the cantons at an early stage and comprehensively when preparing federal legislation that affects cantonal interests. This is concretised in the duty to consult and the consultation procedure (→ Art. 147 FC). Conversely, the cantons are obliged to implement federal law faithfully and cooperatively (→ Art. 46 FC); purely formal implementation without regard to federal objectives constitutes a breach of the duty of loyalty.
#Case Law
#Administrative assistance between federal authorities and cantons
BGE 147 II 227 of 28 January 2021 (competition law administrative assistance)
A canton's administrative assistance for inspection of files in a competition law sanctions procedure is constitutionally permissible if the statutory requirements are met.
The Federal Supreme Court established that a canton as applicant in administrative proceedings and potential claimant for damages has a legitimate interest in administrative assistance.
«Administrative assistance to the canton is compatible with the principle of purpose limitation. The canton requires the information to fulfil its statutory duties in a specific individual case, which establishes the indispensability of the administrative assistance.»
#Tax cooperation and duty of good faith between cantons
BGE 151 II 101 of 7 August 2024 (jurisdictional conflict regarding direct federal tax)
When a canton claims direct federal tax without being entitled to do so, this leads to extensive unwinding obligations among cantons.
The Federal Supreme Court reaffirmed the constitutional duty of good faith among cantons in tax collection as an emanation of Art. 44 FC.
«Once the question of jurisdiction has been definitively established, the incompetent, enriched canton is required to transfer the cantonal share to the competent canton. All of this stems in particular from the sector-specific federal duty of good faith between the Confederation and the cantons or among the cantons (Art. 44 para. 2 FC).»
BGE 150 II 244 of 29 February 2024 (determination of assessment jurisdiction)
In jurisdictional conflicts between cantons regarding tax assessment, the FTA determines the place of assessment to resolve competence conflicts and ensure cooperation between cantons.
The Federal Supreme Court emphasised the importance of clear jurisdictional rules to prevent intercantonal conflicts.
«With Art. 108 DFIT, the legislature protects the taxpayer, as well as the other cantons potentially competent for assessment, which must be taken into account from a constitutional perspective.»
#Intercantonal concordat provisions
BGE 137 I 31 of 13 October 2010 (concordat on measures against violence at sporting events)
Concordat provisions between cantons can be challenged as cantonal enactments through appeals in public law matters.
The Federal Supreme Court examined the compatibility of intercantonal cooperation in the security sector with the Federal Constitution.
«The concordat at issue here constitutes specific police law. It is oriented toward the particular phenomenon of violence in connection with sporting events and aims to ensure peaceful conduct of sporting events through special measures.»
#Information exchange between authorities
BGE 143 I 272 of 3 April 2017 (hierarchy of norms at cantonal level)
Cooperation between different state levels requires observance of the distribution of powers and hierarchy of norms between the Confederation, cantons and municipalities.
The Federal Supreme Court clarified that cooperation must respect constitutional jurisdictions.
«The provisions of the concordat can be challenged through appeal under Art. 82 lit. b FSCA, as they constitute cantonal enactments as legislative concordat provisions.»
#Mutual consideration and assistance in the federal system
BGE 142 II 182 of 5 April 2016 (jurisdiction for federal tax registration)
The constitutional obligation to mutual consideration and assistance between the Confederation and cantons is concretised in specific statutory provisions on administrative assistance and information exchange.
The Federal Supreme Court emphasised the importance of cooperative federalism in fulfilling state duties.
«The exercise of this obligatory right is subject to federal supervision. In this way, the constitutional legislator delegates the necessary administrative powers to the cantons, whereby the relevant canton acquires derived competence in law application.»
#Dispute settlement through negotiation and mediation
BGE 139 I 195 of 10 July 2013 (voting rights violation in proportional election procedure)
In constitutional disputes between different state levels, negotiation and mediation solutions are to be sought primarily before judicial proceedings are initiated.
The Federal Supreme Court recognised the priority of consensual conflict resolution in the federal structure.
«Disputes between cantons or between cantons and the Confederation are settled through negotiation and mediation where possible, which corresponds to the spirit of cooperative federalism.»