1In the cases specified by the Federal Constitution, the Cantons shall participate in the federal decision making process, and in particular in the legislative process.
2The Confederation shall inform the Cantons of its intentions fully and in good time. It shall consult the Cantons where their interests are affected.
Art. 45 FC — Overview
Art. 45 FC governs the participation of the cantons in the formation of the Confederation's will. This provision is a cornerstone of Swiss federalism, which secures the cantons' opportunities to influence federal-level decisions despite ongoing centralisation.
The norm consists of two parts: paragraph 1 refers to the participation rights of the cantons provided for under constitutional law, while paragraph 2 establishes concrete information and consultation obligations for the Confederation. According to the Federal Council's message of 1996, the explicit anchoring of federal participation was intended to strengthen the cooperative elements of Swiss federalism (FGO 1997 I 248 f.). Waldmann describes Art. 45 FC as a «catch-all provision» for all forms of cantonal participation not specifically regulated (Waldmann, BSK BV, Art. 45 N. 6).
All 26 cantons and the federal authorities (Federal Assembly, Federal Council, Federal Administration) are affected. Art. 45 FC provides the cantons with both formal and informal opportunities to influence federal policy. The Confederation must inform the cantons «in good time and comprehensively» about its projects and consult them when their interests are affected.
The participation rights are diverse: cantons can submit cantonal initiatives (Art. 160 FC), participate in consultation procedures (Art. 147 FC), participate in parliament through the Council of States and have a say in constitutional revisions (Art. 140 FC). However, the normative content of Art. 45 FC is disputed: Biaggini criticises that the normative content is «zero» and the concept of participation is «unfortunate» (Biaggini, BSK BV, Art. 45 N. 2, 4). Waldmann advocates a broad interpretation ranging from providing impulses to participating in decisions (Waldmann, BSK BV, Art. 45 N. 7).
If the Confederation plans a new environmental law, it must inform the cantons at an early stage and obtain their positions. The cantons can respond in a coordinated manner through their governments or the Conference of Cantonal Governments (CCG). If they are dissatisfied with the draft, eight cantons can jointly launch a referendum (Art. 141 FC). This possibility gives the cantons considerable political weight already in the consultation phase.
There is controversial discussion about whether the implementation of federal law according to Art. 46 FC belongs to participation rights: Häfelin/Haller/Keller affirm this, while Rhinow/Schefer strictly separate participation and implementation (BSK BV, Art. 45 N. 28). This debate reveals the imprecision of the concept of participation, which is handled flexibly in practice.
N. 1 Art. 45 FC was introduced as a new provision as part of the total revision of the Federal Constitution in 1999. The Federal Council's message of 20 November 1996 emphasised the need to explicitly anchor the federal participation of the cantons in the Constitution (BBl 1997 I 248 f.). The constitutional legislator thereby sought to strengthen the cooperative elements of Swiss federalism and to involve the cantons as an independent state level in the federal decision-making process.
N. 2 The provision partly codified existing practices, but went beyond previous constitutional law particularly with the information and consultation obligation in para. 2. The parliamentary deliberations showed that both federalists and supporters of stronger centralisation supported the norm — albeit with different interpretations of its normative content.
N. 3 Art. 45 FC is located in Title 3 of the Federal Constitution on the Confederation, Cantons and Communes and, together with Art. 44 FC (Principles) and Art. 46 FC (Implementation of federal law), forms the constitutional foundations for cooperation between the Confederation and cantons. The provision gives concrete form to the subsidiarity principle enshrined in Art. 3 FC and the federalist principle of state organisation.
N. 4 The norm is closely connected to the specific participation rights of the cantons: → Art. 140 para. 1 FC (mandatory referendum), → Art. 141 para. 1 FC (optional referendum), → Art. 160 para. 1 FC (cantonal initiative), → Art. 147 FC (consultation procedure). Waldmann sees Art. 45 FC as a «catch-all provision» for all forms of cantonal participation not specifically regulated (Waldmann, BSK BV, Art. 45 N. 6).
N. 5 The concept of «participation» is deliberately formulated in open terms. Biaggini criticises this indeterminacy and advocates for a restrictive interpretation limited to «collective defensive measures» (Biaggini, BSK BV, Art. 45 N. 4). Waldmann, on the other hand, advocates a broad interpretation ranging from agenda-setting through influence to participation in decision-making (Waldmann, BSK BV, Art. 45 N. 7).
N. 6 The phrase «in accordance with the Federal Constitution» makes clear that no claims going beyond the constitutionally provided participation rights are established. The exemplary mention of legislation («in particular») shows that other forms of decision-making are also covered, such as federal spatial planning or foreign relations (→ Art. 55 FC).
N. 7 The information obligation requires «timely» and «comprehensive» information. Timely means that the cantons must receive sufficient time to comment. Practice shows considerable differences depending on the policy area — from a few weeks in urgent cases to several months for ordinary legislative procedures (Waldmann, BSK BV, Art. 45 N. 20-23).
N. 8 The consultation obligation only exists when cantonal «interests are affected». This is regularly the case with enforcement tasks, financial impacts or interventions in cantonal areas of competence. The prevailing doctrine understands the concept broadly (Waldmann, BSK BV, Art. 45 N. 24-39).
N. 9 Art. 45 FC primarily establishes objective legal obligations of the Confederation. According to Biaggini, the «normative content is at zero» (Biaggini, BSK BV, Art. 45 N. 2) regarding subjective enforceability. However, violation of information and consultation obligations can lead to procedural defects that can be asserted in the context of constitutional review proceedings.
N. 10 Practical enforcement occurs mainly at the political level. The Conference of Cantonal Governments (KdK) and the specialist conferences of cantonal directors play a central role in this regard. Legally binding participation rights only arise from specific statutory implementation, for example in the Consultation Act (VlG) or in the Spatial Planning Act (Art. 13 para. 2 RPG).
N. 11 A central point of controversy concerns the question of whether the implementation of federal law according to Art. 46 FC is part of the participation rights. Häfelin/Haller/Keller affirm this and see enforcement federalism as a form of participation (Häfelin/Haller/Keller, BSK BV, Art. 45 N. 28). Rhinow/Schefer deny this and strictly separate participation and enforcement (Rhinow/Schefer, BSK BV, Art. 45 N. 28).
N. 12 The doctrinal assessment of normative significance diverges considerably. While Biaggini assesses the normative content as practically non-existent (Biaggini, BSK BV, Art. 45 N. 2), Waldmann sees definite legal binding effects, particularly regarding the information and consultation obligation (Waldmann, BSK BV, Art. 45 N. 18-19).
N. 13 For cantonal authorities, active use of existing participation channels is recommended. Experience shows that early and coordinated statements through the KdK or specialist conferences have greater influence than individual cantonal submissions. In case of violation of procedural rights, this should be objected to immediately to avoid waiving later objections.
N. 14 Federal authorities must proactively observe participation rights. Merely formal consultation is not sufficient — cantonal statements must be substantively considered. In case of divergent cantonal positions, a differentiated examination is required. The practice of the FOEN regarding environmental impact assessments or of the ARE regarding spatial planning procedures can serve as a model.
N. 15 The increasing importance of the multi-level system (Confederation — cantons — communes — international level) requires new forms of coordination. Digital transformation offers opportunities for more efficient participation procedures, but also raises questions about the digital divide between resource-rich and resource-poor cantons.
There is only limited Federal Supreme Court case law on the direct application of Art. 45 FC to date. The provision is generally not invoked as an independent ground of appeal, but rather its principles are incorporated into the assessment of specific procedural rights. The following presentation therefore also covers decisions on related subject areas of cantonal participation and information.
BGE 133 II 120 E. 2.2 of 11 May 2007
Principle of federal cooperation in spatial planning tasks
The Federal Supreme Court held regarding cantonal participation in the preparation of federal sectoral plans that Art. 13 para. 2 SPA concretises the constitutional principle of cooperation.
«According to Art. 13 para. 2 SPA, the Confederation cooperates with the cantons in preparing the foundations for the fulfilment of its spatial planning tasks and announces its concepts, sectoral plans and construction projects to them in good time or as early as possible.»
BGE 147 I 433 E. 4.1 of 4 February 2021
Participation of municipalities in structure planning procedures
The Federal Supreme Court emphasised the constitutional anchoring of participation rights in administrative planning procedures and their significance for democratic legitimacy.
«The participation of municipalities and other affected parties in structure planning procedures is not only prescribed by law, but also corresponds to the constitutional requirement of democratic decision-making.»
BGE 143 I 272 E. 2.2 of 3 April 2017
Precedence of the Federal Constitution over cantonal law
The Federal Supreme Court held in the context of cantonal school organisation that cantons may exercise their competences only within the framework of federal constitutional requirements.
«The cantons are bound by the Federal Constitution in the exercise of their competences. Art. 49 FC obliges them to comply with federal law.»
BGE 145 I 1 E. 6.2 of 29 October 2018
Cantonal interventions in voting campaigns
The Federal Supreme Court recognised the right of cantons to intervene in federal voting campaigns when specially affected, but emphasised their duty to remain objective.
«If the outcome of a federal popular vote significantly affects several or all cantons, the cantonal governments may publicly comment on it in advance of the vote and issue voting recommendations. However, cantonal interventions must in such cases be measured against the criteria of objectivity, proportionality and transparency.»
There is no specific Federal Supreme Court case law on the concrete implementation of consultation procedures under Art. 45 para. 2 FC. Practice is governed by the Consultation Act (ConsA) and its ordinance.
BGE 133 II 120 E. 3.1 of 11 May 2007
Distinction between hearing and legal remedy procedures
The Federal Supreme Court clarified that participation procedures do not automatically lead to procedures subject to appeal.
«The hearing procedure for the adoption of a federal sectoral plan does not lead to a legal remedy procedure.»
#Wide Discretionary Margin for Federal Authorities
BGE 133 II 120 E. 3 of 11 May 2007
Discretionary margin in the application of participation provisions
The Federal Supreme Court granted the authorities wide discretion in the concrete implementation of participation procedures.
«Wide discretionary margin for authorities in applying Art. 4 para. 2 SPA. General participation within the meaning of this provision represents an institutional possibility for influence and does not create legal obligations for the participants, but merely political influence.»
Recent decisions by the Federal Data Protection and Information Commissioner show that Art. 45 FC also becomes relevant in the context of the principle of public access to information when it comes to protecting relations between the Confederation and cantons. However, this practice is not yet well established.
Case law on cantonal participation in European law issues continues to develop, with Art. 45 FC serving as the constitutional foundation. However, concrete leading decisions are still pending.
Art. 45 FC is understood in case law primarily as a fundamental provision that is concretised by special legislation. Direct constitutional enforcement of participation rights is rare, as these are usually realised at the ordinance level or through political processes.