1The Cantons shall implement federal law in accordance with the Federal Constitution and federal legislation.
2The Confederation and the Cantons may together agree that the Cantons should achieve specific goals in the implementation of federal law and may to this end conduct programmes that receive financial support from the Confederation.
3The Confederation shall allow the Cantons all possible discretion to organise their own affairs and shall take account of cantonal particularities.
Art. 46 BV — Implementation of Federal Law
#Overview
Art. 46 BV regulates Swiss executive federalism (system of division of tasks between the Confederation and cantons). The Confederation makes the laws, the cantons implement them. This division of tasks is characteristic of the Swiss federal system, as the Federal Council Message on a new Federal Constitution notes (BBl 1997 I 1, 255 ff.).
According to Art. 46 para. 1 BV, the cantons must implement federal law. Waldmann/Borter (BSK BV, Art. 46 N. 15) emphasize that the Constitution establishes a «presumption of implementation in favour of the cantons». This means: When the Confederation enacts a law, the cantons implement it as a matter of principle, unless the law provides otherwise. BGE 127 II 49 confirms that this implementation obligation exists even without explicit implementation provisions in the federal law.
The concept of «implementation» goes beyond mere execution. Waldmann/Borter (BSK BV, Art. 46 N. 16) explain: Implementation «also encompasses a certain degree of political design options». However, the cantons must implement federal law «in accordance with the Constitution and legislation». They may not deviate from federal law, as BGE 136 I 220 shows: Canton Glarus was not permitted to offset premium reduction contributions against tax debts because this contradicted the objective of the Health Insurance Act.
Art. 46 para. 2 BV enables programme agreements between the Confederation and cantons. Waldmann/Borter (BSK BV, Art. 46 N. 33) characterize them as «federal subsidy contracts» with a constitutional law dimension. Example: The Confederation provides financial support to cantons for environmental projects if they achieve certain objectives.
Art. 46 para. 3 BV obliges the Confederation to leave the cantons «as much design freedom as possible» and to take account of cantonal particularities. BGE 142 I 99 illustrates this: In water use law, the Confederation must recognize cantonal water sovereignty as a particularity. Waldmann/Borter (BSK BV, Art. 46 N. 39) emphasize that this principle of subsidiarity applies to both legislators and ordinance makers.
Art. 46 FC — Implementation of Federal Law
#Doctrine
#1. Legislative History
N. 1 Art. 46 FC codifies a principle of state policy that has always applied in the Swiss federal state: federal law is implemented primarily by the cantons. In the dispatch on the new Federal Constitution of 20 November 1996, the Federal Council described this principle as a «tried and tested maxim of state policy» and emphasised that implementation obligations may be imposed on the cantons only by way of formal act (BBl 1997 I 211 ff., 596). This requirement — referred to as the federal principle of legality — was already enshrined in the law of the old Federal Constitution, but was first explicitly positivised in Art. 46 FC.
N. 2 The dispatch proposed a three-paragraph structure: para. 1 contains the general obligation to implement, paras. 2 and 3 the flanking guarantees for cantonal freedom of design and financial recognition of implementation burdens (BBl 1997 I 596). The Council of States approved Arts. 35–40 of the draft constitution under the rapporteur's remarks of Pierre Aeby (S, FR) without a dissenting vote (AB 1998 SR Separatdruck). The parliamentary deliberations proceeded largely by consensus until the final vote of 18 December 1998 (Council of States) and 18 December 1998 (National Council); the conciliation procedure concerned other parts of the constitutional text.
N. 3 Para. 2 in its current form — programme agreements between the Confederation and the cantons — was not proposed in the original 1997 dispatch, but was introduced as an independent constitutional amendment as part of the reform of fiscal equalisation and the division of tasks between the Confederation and the cantons (NFA). The people approved the amendment on 28 November 2004; it entered into force on 1 January 2008 (AS 2007 5765; BBl 2002 2291; 2003 6591; 2005 951). The original version of para. 2 contained a guarantee of financial compensation for implementation burdens, which was replaced by the new provision on earmarked programme agreements.
#2. Systematic Classification
N. 4 Art. 46 FC is a competence norm in the 3rd Chapter («Relationship between the Confederation and the Cantons») of Title 3 of the Federal Constitution. The provision belongs to the fundamental organisational norms of Swiss federalism. It is closely systematically connected to → Art. 3 FC (sovereignty of the cantons), → Art. 5 FC (rule of law and principle of legality), ↔ Art. 47 FC (autonomy of the cantons), and ↔ Art. 49 FC (supremacy and derogatory force of federal law). Art. 46 FC establishes the positive implementation obligation of the cantons, while Art. 49 FC contains the negative prohibition on cantonal law that conflicts with federal law.
N. 5 In terms of norm typology, Art. 46 is an institutional norm directed primarily at state bodies — the Confederation and the cantons — with no subjective-law content for private individuals. It is directly applicable (→ Art. 190 FC is not relevant, as Art. 46 is not a federal act but constitutional law), but unfolds its practical significance primarily as a standard of interpretation for delimiting federal and cantonal competences in implementation. Individuals may invoke Art. 46 para. 1 FC in the context of challenging cantonal law that conflicts with federal law, insofar as it is read in conjunction with Art. 49 FC.
#3. Elements of the Provision / Normative Content
Para. 1: Implementation Obligation of the Cantons
N. 6 Art. 46 para. 1 FC establishes the principle that the cantons implement federal law «in accordance with the Constitution and federal legislation». The obligation is subject to a dual condition: it exists only insofar as the Constitution or a formal act establishes it. Implementation obligations cannot be imposed on the cantons by Federal Council ordinance; a formal act is required pursuant to → Art. 164 para. 1 lit. f FC (BBl 1997 I 211; BGE 141 II 169 E. 3.2). The Federal Supreme Court clarified this principle in BGE 127 II 49 E. 3a in the area of aliens law: since Art. 121 FC itself contains no allocation of competences between the Confederation and the cantons in implementation, it falls, under the conception of Art. 46 para. 1 FC, to the federal legislator to determine the extent to which the cantons are to be entrusted with the implementation of federal law.
N. 7 The Federal Supreme Court clarified in BGE 147 I 478 E. 3.6 that cantonal implementing authorities must apply directly applicable federal law directly, without any substantive implementing legislation at the cantonal level being necessary. Where federal law contains indeterminate legal concepts or provisions requiring concretisation, a cantonal implementing ordinance is permissible without a specific enabling basis. Different considerations apply where federal law merely imposes a legislative mandate on the cantons: in that case, cantonal implementing legislation is required, which — where fundamental rights are seriously restricted — must take the form of a formal act (→ Art. 36 para. 1 FC).
N. 8 The distinction between a directly applicable federal law provision and a mere legislative mandate to the cantons is of central practical importance. The former authorises cantonal implementing authorities to act directly and simultaneously constitutes the substantive legal basis for restrictions on fundamental rights. The latter requires additional cantonal legislation, which must, where applicable, take the form of a formal act. This distinction was of considerable practical relevance in the context of Covid-19 legislation: the Federal Supreme Court classified Art. 40 EpG as a directly applicable provision of federal law, which permitted a cantonal implementing ordinance of the cantonal government without an additional cantonal statutory basis (BGE 147 I 478 E. 3.6 ff.).
Para. 2: Programme Agreements
N. 9 Art. 46 para. 2 FC has, since 2008, permitted agreements between the Confederation and the cantons under which the cantons achieve certain objectives when implementing federal law and, to that end, carry out programmes that the Confederation supports financially. The provision is a may provision: it does not confer on the cantons any right to conclude such agreements, nor does it impose on the Confederation any obligation to establish corresponding programmes. The purpose is to strengthen results-based rather than rules-based governance (output-based governance), under which the cantons enjoy a wide margin of discretion in their choice of means.
N. 10 Programme agreements under para. 2 differ from classic subsidy contracts in that not individual measures but defined levels of target attainment are agreed. This instrument was enshrined as part of the NFA, which contrasted earmarked federal contributions to individual cantonal measures with programme-based financing (BBl 2002 2291). Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1090a, classify programme agreements as public-law contracts sui generis, which, despite their consensual and cooperative character, cannot derogate from the allocation of competences under the Constitution.
Para. 3: Freedom of Design of the Cantons
N. 11 Art. 46 para. 3 FC contains two requirements: first, the Confederation shall leave the cantons «as much freedom as possible in the organisation of implementation». Second, it shall «take account of cantonal particularities». This provision is addressed primarily to the federal legislator when structuring implementation-related requirements (BBl 1997 I 212). The phrase «as much freedom as possible» is not an absolute requirement but an optimisation mandate: encroachments on cantonal freedom of design are permissible where they are necessary and proportionate for the proper implementation of federal law (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3047 f.).
N. 12 The Federal Supreme Court held in BGE 128 I 254 E. 3.8.2 that Art. 46 para. 3 FC (then still para. 2 in the original version) reflects respect for the cantons' autonomy as regards tasks and organisation, without however precluding interventions by the federal legislator in cantonal organisational autonomy from the outset. Necessary and proportionate interventions in cantonal procedural and organisational sovereignty are constitutionally permissible, for instance where the uniform application of the law throughout cantonal territory so requires. The cantons retain a margin of design freedom in designating competent authorities and organising them, which allows them to take account of cantonal particularities.
N. 13 In the area of cantonal implementation of federal law with normative implementation discretion, the cantons enjoy, according to established case law, considerable freedom of design. The Federal Supreme Court reviews cantonal implementing law not for pure expediency but only for compatibility with the meaning and spirit of federal law (BGE 136 I 220 E. 6.1). Cantonal provisions are contrary to federal law only if they frustrate the purpose pursued by federal law, not merely because they adopt solutions not expressly provided for in federal law.
#4. Legal Consequences
N. 14 Art. 46 para. 1 FC establishes a constitutional implementation obligation of the cantons. Its breach — i.e., refusal or failure to implement federal law — may be subject to federal supervisory measures (→ Art. 49 FC; → Art. 186 f. FC). Vis-à-vis private individuals, the implementation obligation takes effect primarily through the application of substantive federal law and legal protection by the federal authorities and the Federal Supreme Court.
N. 15 Where federal law provides an exhaustive regulation, it displaces cantonal law (→ Art. 49 para. 1 FC). Where federal law mandates the cantons to implement it without exhaustively regulating the modalities, the cantons must enact cantonal implementing law. Such cantonal implementing law must remain within the limits of federal law; it may neither conflict with federal acts nor restrict the rights that federal law intends to confer. Cantonal implementing law that violates the meaning and purpose of federal law is contrary to federal law and subject to annulment (BGE 136 I 220 E. 6.4.3).
N. 16 Cantonal implementing ordinances in relation to federal law must set out the legislative provision in greater detail through specific provisions, may neither abrogate nor amend the act being implemented, must follow the objectives of the act, and may not impose on citizens any new obligations not already arising from the act (BGE 147 I 478 E. 3.7.1, with reference to BGE 142 V 26 E. 5.1). This standard corresponds to that applicable to implementing ordinances of the Federal Council and is to be applied mutatis mutandis to cantonal implementing provisions.
N. 17 Breach of the requirements relating to statutory delegation and sub-delegation in the area of cantonal implementing competence has, according to established case law, the consequence that the provision in question does not constitute a valid statutory basis and does not satisfy the requirements of the principle of legality (→ Art. 5 FC; → Art. 36 para. 1 FC) (BGE 141 II 169 E. 4.4.1 f.). This leads to the impermissibility of state action based thereon.
#5. Disputed Issues
N. 18 Direct applicability of federal law vs. legislative mandate to the cantons: The distinction between a directly applicable provision of federal law and a mere legislative mandate is contested in doctrine. Steimen emphasised early on that Art. 46 para. 1 FC assigns the cantons a dual role: they are simultaneously subjects of implementation for directly applicable federal law and legislative bodies for the enactment of implementing law (Urs Steimen, Die Umsetzung von Bundesrecht durch die Kantone gemäss Art. 46 Abs. 1 und 2 BV, in: Gächter/Bertschi [Hrsg.], Neue Akzente in der nachgeführten Bundesverfassung, 2000, p. 165 ff.). Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3042 ff., emphasise that the classification depends on the density of the federal statutory regulation and is to be determined on a contextual basis. The Federal Supreme Court, in the Covid-19 context, interpreted direct applicability broadly (BGE 147 I 478 E. 3.6), which has been criticised by some as going too far, since Art. 40 EpG is formulated in very indeterminate terms and the necessary protection of fundamental rights must be compensated for by the formal statutory determinacy of the federal provisions (E. 3.7.2).
N. 19 Scope of the freedom of design requirement under para. 3: It is disputed whether Art. 46 para. 3 FC imposes on the federal legislator a constitutionally reviewable mandate or merely a political programme without subjectively enforceable content. Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 729, tended towards treating it as a political programme without a subjectively actionable component. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1087, take the opposing view that para. 3 constitutes a justiciable limit on unduly centralist federal legislation, the breach of which may be asserted in specific implementation proceedings. The Federal Supreme Court has not conclusively resolved this question, but has relied on para. 3 as a standard of interpretation when determining the permissible scope of interventions in cantonal organisational autonomy (BGE 128 I 254 E. 3.8.2).
N. 20 Relationship between Art. 46 para. 1 and Art. 49 FC: The delimitation of these two provisions is contested in legal scholarship. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3038 f., regard Art. 46 para. 1 as the positive implementation obligation and Art. 49 as its negative counterpart (prohibition on cantonal law that conflicts with federal law). Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1085 f., draw a sharper distinction: Art. 46 para. 1 concerns primarily the allocation of competences in implementation, whereas Art. 49 para. 1 concerns the substantive priority relationship. The Federal Supreme Court regularly bases its decisions on cantonal implementing law that conflicts with federal law on Art. 49 para. 1 FC (cf. BGE 136 I 220 E. 6.1; BGE 128 I 254 E. 3.8.1), which corresponds to the second view.
N. 21 Legal nature of programme agreements under para. 2: The question of whether programme agreements are legally enforceable or merely constitute a cooperative form of governance without right of action has not been conclusively resolved in legal scholarship. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1090a, classify them as public-law contracts which, in the event of material non-performance, give rise to a right of recourse by the Confederation. A direct action by the Confederation against a canton based on Art. 46 para. 2 FC alone is not provided for; corresponding disputes would fall to be decided by the Federal Supreme Court pursuant to → Art. 189 para. 2 FC.
#6. Practical Notes
N. 22 Federal principle of legality: Implementation obligations imposed on the cantons in the area of federal law require a statutory basis in a formal federal act (→ Art. 164 para. 1 lit. f FC). A merely ordinance-level basis established by the Federal Council — without a corresponding delegation in the act — is insufficient (BGE 141 II 169 E. 3.2). This applies equally to the design of consent procedures between federal and cantonal authorities.
N. 23 Cantonal implementing ordinances: Cantonal governments may, on the basis of their constitutionally direct implementing competence (insofar as cantonal law so provides), issue implementing ordinances in relation to federal law, provided that the federal law is directly applicable. Where federal law requires cantonal implementing legislation, such legislation must comply with the requirements of the formal cantonal legislative procedure, in particular where fundamental rights are restricted (→ Art. 36 para. 1 FC; BGE 147 I 478 E. 3.1 ff.).
N. 24 Limits of cantonal implementing law: When designing cantonal implementing law in relation to federal law, the margin of action is to be measured against the purpose of the federal act. Even silent federal law may be exhaustive if it leaves no regulatory space to the cantons. Cantonal provisions that conflict not with the wording but with the meaning and purpose of federal law are contrary to federal law (BGE 136 I 220 E. 6.4.3). In practice, the following questions should be examined: (1) Has federal law exhaustively regulated the matter? (2) If not: does the cantonal provision conflict with the meaning and spirit of federal law?
N. 25 Competence allocation in cantonal implementation of federal law: Where federal law prescribes a specific form of intra-cantonal allocation of competences (e.g., a decision by a single cantonal authority), the cantons are bound thereby. Art. 46 para. 3 FC preserves only that margin of cantonal design freedom which is compatible with federal law (BGE 128 I 254 E. 3.8.4). In cases of doubt as to compatibility, priority is to be given to the standard of federal law purpose (equal and uniform application) over cantonal organisational autonomy, provided that the federal legislator so intended.
N. 26 Relationship to Art. 49 FC in appellate strategy: Since the Federal Supreme Court regularly bases decisions on cantonal implementing provisions that conflict with federal law on Art. 49 para. 1 FC rather than on Art. 46 FC, appeals should invoke Art. 49 para. 1 FC in the first instance where a cantonal norm conflicts with federal law. Art. 46 para. 1 FC has independent significance as a ground of complaint where the competence to implement (rather than the substantive content of a provision) is in question, or where the absence of a formal statutory basis for an implementation delegation is challenged (cf. BGE 127 II 49 E. 3a; BGE 141 II 169 E. 4.1).
Case Law
#General duty of cantons to implement federal law
BGE 127 II 49 of 26.1.2001
Federal division of powers under Art. 46 para. 1 Cst.
The Federal Supreme Court clarifies that Art. 46 para. 1 Cst. establishes the general principle that the cantons implement federal law in accordance with the Constitution and the law.
«Art. 46 para. 1 Cst. establishes the general principle that the cantons implement federal law in accordance with the Constitution and the law. Since the Constitution provides no details on this in Art. 121 Cst., according to the conception of Art. 46 para. 1 Cst., the federal legislature must therefore determine the extent to which the cantons should be entrusted with the implementation of federal law in the field of foreign nationals law.»
BGE 128 I 254 of 14.8.2002
Cantonal jurisdiction in spatial planning law
Cantonal implementation of federal law must comply with federal requirements, including in the organisation of jurisdictions.
«Art. 25 para. 2 SPA requires, in the interest of uniform and legally equal application of the law throughout the canton, that all applications for building projects outside building zones be handled by a cantonal authority. Art. 84 para. 1 of the Bernese Building Act, which transfers this competence to the (currently 26) prefects, does not meet this requirement.»
#Cantonal regulations contrary to federal law
BGE 136 I 220 of 15.4.2010
Premium reductions in health insurance law
Cantonal regulations that undermine the purpose of federal laws are contrary to federal law, even if they were enacted within the scope of cantonal implementation competence.
«A cantonal regulation according to which premium reduction contributions can be offset against tax debts is incompatible with the objectives of the HIA and therefore contrary to federal law.»
BGE 130 I 26 of 27.11.2003
Admission restrictions for healthcare providers
Cantonal implementing ordinances on federal law must remain within the scope of federal requirements.
«The restriction on the admission of healthcare providers to practice at the expense of compulsory health insurance, issued by the Federal Council under Art. 55a HIA and specified by the Government Council of the Canton of Zurich, does not violate - insofar as this can be examined under Art. 191 Cst. - either the Agreement on the Free Movement of Persons or economic freedom.»
#Freedom of organisation in implementation
BGE 142 I 99 of 31.3.2016
Water use rights of the Canton of Uri
Art. 46 para. 3 Cst. grants the cantons freedom of organisation in the implementation of federal law, provided that federal requirements are met.
«The Confederation has basic competence to regulate water use while the cantons have sovereignty over water bodies. They are therefore authorised to manage public water bodies in their territory and exercise corresponding sovereign rights.»
BGE 131 II 13 of 30.11.2004
Implementing ordinance in telecommunications law
Federal ordinances must have sufficient legal basis; the cantons are bound by these constitutional limits in implementation.
«If the Telecommunications Act contains a sufficient basis for establishing an interconnection obligation for subscriber connections by Federal Council ordinance, the cantons are also bound by this in implementation.»
#Implementation in special situations
BGE 147 I 478 of 25.6.2021
Covid-19 measures of the Canton of Schwyz
The cantons implement federal law under Art. 46 para. 1 Cst. even in extraordinary situations; cantonal implementing ordinances must be able to rely on sufficient federal legal foundations.
«The contested ordinance is to be qualified as an implementing ordinance under Art. 40 EpA, which the Government Council of the Canton of Schwyz is competent to issue.»
BGE 141 II 169 of 30.3.2015
Supervisory function and approval procedure
When transferring implementation competences, the constitutional requirements for legislative delegation must be observed.
«The transfer of approval authority requires a sufficiently specific legal basis and must comply with the constitutional requirements for delegation.»
#Federal supervision over cantonal implementation
BGE 135 II 94 of 5.2.2009
Standing requirements for Federal Supreme Court appeals
Federal supervision over cantonal implementation of federal law also occurs through control of cantonal procedural organisation.
«The detention court of the Bern-Mittelland investigation region only partially meets the legal requirements as a higher court within the meaning of Art. 86 para. 2 FSCA.»
BGE 143 V 269 of 29.6.2017
Cost allocation for court expert reports
Cantonal implementation of federal law must also respect the cost distribution prescribed by federal law.
«In accordance with previous case law, Art. 45 para. 1 GSIA provides a sufficient legal basis for imposing the costs of a multidisciplinary court expert report on the insured person.»