Art. 47 FC — Autonomy of the Cantons

#Doctrine

#1. Legislative History

N. 1 The new Federal Constitution of 1999 contains in Art. 47 para. 1, for the first time, an explicit constitutional provision obliging the Confederation to preserve the autonomy of the cantons. Under the former FC, no corresponding explicit principle was codified; cantonal autonomy arose only indirectly from the federal structure of the state, in particular from Art. 3 former FC (sovereignty of the cantons). The Federal Council's dispatch of 20 November 1996 states that Art. 47 FC is intended to entrench the autonomy of the cantons as a fundamental constitutional principle and as an obligation of the Confederation; any encroachment upon the core of cantonal autonomy would violate the Constitution (BBl 1997 I 213). The concise formulation as a framework provision closely linked to the principle of subsidiarity reflects a deliberate legislative choice (BBl 1997 I 563, 596).

N. 2 Paragraph 2 was added in the course of the reform of fiscal equalisation and the reallocation of responsibilities between the Confederation and the cantons (NFA). The NFA Federal Decree of 3 October 2003, adopted in the popular vote of 28 November 2004 and entered into force on 1 January 2008 (AS 2007 5765; BBl 2002 2291; 2003 6591; 2005 951), inserted the sentence on sources of revenue and financial resources into para. 2. This enshrined not only the autonomy over tasks and organisation, but also the financial autonomy of the cantons explicitly as a constitutionally protected subject matter. The parliamentary deliberations were, in substance, uncontested as regards the general orientation of this tripartite structure.

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#2. Systematic Classification

N. 3 Art. 47 FC is located in Chapter 3 «Relations between the Confederation and the Cantons» (Art. 42–53 FC) and is a competence provision with a structural function: it obligates the Confederation — as a limit on federal law encroachments — to have regard for the autonomy of the cantons. The provision is not a fundamental rights provision and does not confer on the cantons a directly justiciable individual subjective right; it is a protective norm in favour of the cantons as public law corporations (→ Art. 3 FC; Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1002 ff.).

N. 4 Art. 47 FC stands in close connection with other federalism provisions: the principle of subsidiarity (→ Art. 5a FC) and the principle of fiscal equivalence (→ Art. 43a FC) give concrete expression to autonomy over tasks and finances. The Confederation's duty to leave the cantons as much freedom as possible in implementing federal law derives from → Art. 46 para. 3 FC, which is regarded as the direct normative counterpart to the organisational autonomy enshrined in Art. 47 FC. The principle of the primacy of federal law (→ Art. 49 para. 1 FC) forms the system-immanent counterposition: it delimits what Art. 47 FC protects. ↔ Art. 50 FC complements Art. 47 by protecting the autonomy of the communes.

N. 5 Art. 47 FC is a programmatic structural provision and, at the same time, a binding constitutional mandate. It primarily produces binding effect vis-à-vis the federal legislature and the Federal Council, and not directly vis-à-vis private parties (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1862). As a guideline for interpretation, however, it is binding on all federal bodies, including the Federal Supreme Court: federal acts must, to the extent the scope for interpretation permits, be construed in a manner that preserves cantonal autonomy as fully as possible (BGE 128 I 254 E. 3.8.2).

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#3. Elements of the Provision / Normative Content

N. 6 Art. 47 FC is structured around three protected subject matters, each of which is analysed separately below:

(a) Para. 1: Preservation of autonomy («The Confederation shall preserve the autonomy of the cantons»)

N. 7 «Autonomy» («Eigenständigkeit») is a generic term describing the institutional independence of the cantons as state entities with their own legal order, their own territory, and their own people. It goes beyond the concept of «autonomy» in specific subject-matter areas and concerns the existence and essential core of cantonal statehood as such (Häfelin/Haller/Keller/Thurnherr, op. cit., N 1003). The term «shall preserve» is an active obligation formula: the Confederation must not merely refrain from encroachments, but must also actively maintain that autonomy.

N. 8 The Federal Supreme Court has derived from para. 1 the cantonal power of organisation as a central element of Swiss federalism: «The cantonal power of organisation is a central element of Swiss federalism. Although not explicitly set out in the new Federal Constitution, it is derived from Art. 47 FC ('The Confederation shall preserve the autonomy of the cantons').» (BGE 128 I 254 E. 3.8.2). Encroachments by the federal legislature on cantonal organisational autonomy are only permissible if they are necessary and proportionate for the adequate implementation of federal law — a balancing exercise between the federal interest in enforcement and cantonal autonomy over organisation and procedure must be carried out (ibid. E. 3.8.2, referring to Saladin and Hangartner).

(b) Para. 2 sentence 1: Autonomy over tasks and organisation

N. 9 «It shall leave the cantons sufficient tasks of their own» enshrines the core of federal distribution of competences: the Confederation must leave the cantons a substantial domain of their own legislative and executive tasks. «Sufficient» is an indeterminate legal concept; it does not designate a numerically measurable proportion, but requires that the cantons remain capable of functioning as autonomous state entities (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 729). «Respect their organisational autonomy» refers to the right of the cantons to regulate the structure of their authorities, procedures, and internal allocation of responsibilities at their own discretion, insofar as federal law does not impose mandatory requirements (BGE 144 IV 240 E. 2.5: «While the Confederation preserves the autonomy of the cantons and leaves them sufficient tasks of their own and respects their organisational autonomy (cf. Art. 47 FC), [...] the cantons may not enact provisions that conflict with federal law.»).

N. 10 «Respect their organisational autonomy» also applies when cantons implement federal law: even in that context, the cantons must be guaranteed the greatest possible freedom of design and consideration of cantonal particularities (→ Art. 46 para. 3 FC). The Federal Supreme Court therefore accepts federal legislative encroachments on cantonal organisational authority only where a compelling public interest in uniform enforcement has been demonstrated: thus, under Art. 25 para. 2 of the Spatial Planning Act (SPA), it required the jurisdiction of a single cantonal authority for exceptional decisions outside the building zone, because uniform application of the law throughout the cantonal territory was required by the principle of equal treatment — even at the cost of cantonal freedom to decentralise (BGE 128 I 254 E. 3.4–4.7).

(c) Para. 2 sentence 2: Financial autonomy (NFA addition 2004/2008)

N. 11 «It shall leave the cantons sufficient sources of revenue» protects the cantons' sovereignty over taxation and levies. This encompasses the autonomy over tax rates in the area of direct taxes (judgment 2C_961/2014 E. 2.3: «[...] the autonomy over tax rates which the cantons enjoy in the field of direct taxes (Art. 3, Art. 47 para. 2, Art. 129 para. 2 FC)»). «And shall contribute to ensuring that the cantons have the financial resources necessary to fulfil their responsibilities» is a duty of the Confederation to assist, which, however, does not create any actionable right of the cantons to federal subsidies. It serves primarily as a mandate to the federal legislature to secure the financial capacity of the cantons within the framework of fiscal equalisation (→ Art. 135 FC).

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#4. Legal Consequences

N. 12 Art. 47 FC produces binding effect on several levels:

Vis-à-vis the federal legislature: Federal acts that encroach upon the core of cantonal autonomy are unconstitutional. Since, pursuant to → Art. 190 FC, the Federal Supreme Court is required to apply federal acts, the review takes place indirectly through constitutionally conform interpretation (BGE 128 I 254 E. 3.8.1). A direct annulment of a federal act by the Federal Supreme Court on grounds of a violation of Art. 47 FC is excluded.

N. 13 Vis-à-vis the Federal Council and the federal administration: Ordinances and administrative decisions of the Confederation may be reviewed against the standard of Art. 47 FC and set aside. The principle of subsidiarity (→ Art. 5a FC), as a concretisation of Art. 47 FC, obliges the Federal Council, prior to issuing ordinances, to examine whether the task can be fulfilled by the cantons.

N. 14 No subjective rights for private parties: Art. 47 FC does not confer any actionable rights on private parties. A private party cannot directly invoke Art. 47 FC to compel or prevent a specific course of conduct by the Confederation or the cantons. Insofar as Art. 47 FC, as a guideline for interpretation, strengthens cantonal freedom of design, however, it has an indirect effect on the legal positions of private individuals (BGE 135 I 28 E. 5.4: «The constitutionally guaranteed sovereignty [Art. 3 FC], organisational autonomy [Art. 46 para. 2 FC] and preservation of cantonal autonomy by the Confederation [Art. 47 FC]» do not suffice to justify a cantonal rule on occupational benefit schemes that conflicts with federal law).

N. 15 No vested protection of specific competences: Art. 47 FC does not protect any particular, historically evolved distribution of competences. The provision does not guarantee a status quo ante in favour of the cantons and does not prevent the Confederation from acquiring further competences through a constitutional amendment by popular vote — provided that the autonomy of the cantons as an institution is preserved (Rhinow/Schefer/Uebersax, op. cit., N 1862 ff.).

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#5. Contested Issues

N. 16 Independent normative content of Art. 47 FC vs. declaratory function: A first contested issue concerns the question of whether Art. 47 FC generates independent normative content beyond the effects of Art. 3 FC (sovereignty) and the other federalism provisions. Häfelin/Haller/Keller/Thurnherr (op. cit., N 1002) regard Art. 47 FC as an independent obligation provision that actively compels the Confederation to preserve cantonal autonomy and thereby goes beyond mere passive non-interference. Rhinow/Schefer/Uebersax (op. cit., N 1862), by contrast, emphasise its primarily structural character: the provision concretises and reinforces the federal basic order, but does not create any new, judicially enforceable subjective right of the cantons. The Federal Supreme Court has aligned itself with this restrained view by applying Art. 47 FC always in combination with Art. 3 FC and Art. 49 FC, without according it an independent standard of review (BGE 128 I 254 E. 3.8.2; BGE 135 I 28 E. 5.4; BGE 144 IV 240 E. 2.5).

N. 17 Relationship to Art. 46 para. 3 FC (freedom of implementation): A contested issue is the relationship between the general duty to preserve autonomy under Art. 47 FC and the more specific guarantee of freedom of implementation under Art. 46 para. 3 FC. The prevailing doctrine (Häfelin/Haller/Keller/Thurnherr, op. cit., N 1002; Rhinow/Schefer/Uebersax, op. cit., N 1862) treats Art. 46 para. 3 FC as lex specialis for the area of enforcement determined by federal law, while Art. 47 FC applies as an overarching framework provision for all areas. The Federal Supreme Court appears to share this distinction: in the spatial planning case, it cited both provisions as complementary (BGE 128 I 254 E. 3.8).

N. 18 Justiciability of the financial guarantee (para. 2 sentence 2): The duty — inserted by the NFA — to contribute to ensuring that cantons have sufficient sources of revenue is contested in its legal nature. Müller/Schefer (op. cit., p. 729) characterise it as an optimisation mandate without an actionable entitlement to services. This assessment is supported by the absence of any case law that has derived an independently actionable right of the cantons to specific federal contributions from para. 2 sentence 2. In the area of tax law, however, the Federal Supreme Court has invoked the cantonal autonomy over tax rates flowing from Art. 47 para. 2 FC as a justiciable standard (judgment 2C_961/2014 E. 2.3).

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#6. Practical Notes

N. 19 Guideline for interpretation in cases of normative conflict: In legal practice, Art. 47 FC functions primarily as a guideline for interpretation where federal acts touch upon questions of cantonal competence, organisation of authorities, or fiscal sovereignty. In interpreting federal acts, courts and administrative authorities must choose the variant that preserves cantonal autonomy to the greatest possible extent, provided that the wording and purpose of the act permit this (BGE 128 I 254 E. 3.8.1).

N. 20 Organisational autonomy in the implementation of federal law: Cantons enjoy in principle freedom of organisation even when implementing federal law (→ Art. 46 paras. 1–3 FC). Federal law may only prescribe the cantonal organisation of authorities to the extent that this is indispensable for adequate and uniform enforcement. The proportionality of the encroachment must always be examined (BGE 128 I 254 E. 3.8.2, 3.8.3). Decentralised cantonal forms of organisation (district authorities, decentralised offices) are sufficient only where they are integrated into a hierarchy and ensure uniform application of the law.

N. 21 Limits vis-à-vis federal law: Art. 47 FC cannot be invoked as a barrier against federal acts that impose certain minimum requirements on the fulfilment of cantonal responsibilities (BGE 135 I 28 E. 5.4; BGE 144 IV 240 E. 2.5). Once federal law is exhaustive (→ Art. 49 para. 1 FC), cantonal autonomy gives way. This also applies where cantons seek, through cantonal legislation, to expand their organisational latitude at the expense of federal law requirements.

N. 22 Cantonal autonomy over tax rates: The financial autonomy implicitly contained in Art. 47 para. 2 FC protects in particular the cantonal power to set tax rates in the area of direct taxes. Federal law may impose minimum harmonisation requirements on the cantons (→ Art. 129 FC; THA), but may not encroach upon the core of cantonal tax legislation (judgment 2C_961/2014 E. 2.3). In the area of fiscal equalisation, para. 2 sentence 2 takes effect as a guideline for the interpretation of Art. 135 FC.

N. 23 Relationship to communal autonomy (→ Art. 50 FC): The cantonal autonomy vis-à-vis the Confederation protected by Art. 47 FC must be strictly distinguished from the autonomy of the communes vis-à-vis the canton. A cantonal regulation that encroaches upon communal autonomy (→ Art. 50 FC) is not already contrary to federal law merely because it seeks to strengthen cantonal autonomy within the meaning of Art. 47 FC (BGE 135 I 28 E. 5.5; Häfelin/Haller/Keller/Thurnherr, op. cit., N 1002 f.).

#Case Law

#Organizational autonomy of the cantons

BGE 128 I 254 of 14.8.2002 (E. 3-4)

The Federal Supreme Court clarified that cantonal organizational autonomy has limits when federal law requires uniform application. Art. 25 para. 2 SPA requires, in the interest of uniform and equal application of the law throughout the canton, that all applications for construction projects outside building zones be handled by a cantonal authority. The distribution of competence to 26 district governors in the canton of Bern did not meet this federal law requirement.

«Art. 25 para. 1 SPA establishes the principle of organizational autonomy of the cantons. This principle is limited in para. 2 insofar as the competence of a cantonal authority is prescribed.»

BGE 144 IV 240 of 14.6.2018 (E. 2.5)

When interpreting Art. 104 para. 2 CCP, the Federal Supreme Court emphasized the importance of cantonal organizational autonomy according to Art. 47 Cst. Nevertheless, cantons cannot enact provisions that contradict federal law. Organizational autonomy does not entitle cantons to grant authority status to private organizations when this exceeds federal law limits.

«While the Confederation respects the independence of the cantons and leaves them sufficient tasks of their own and respects their organizational autonomy (cf. Art. 47 Cst.). [...] However, the cantons may not establish provisions that contradict federal law.»

#Financial independence and division of tasks

BGE 147 I 136 of 18.5.2020 (E. 2)

The Federal Supreme Court recognized municipal autonomy in setting tax rates as an expression of cantonal independence protected by Art. 47 Cst. The withdrawal of this competence by the canton violates constitutionally guaranteed autonomy. The decision shows the limits of state intervention in autonomous areas of subordinate levels.

«The Lucerne municipalities have autonomy in setting the municipal tax rate. The withdrawal of the competence to set the municipal tax rate violates municipal autonomy and the principle of proportionality.»

BGE 135 I 28 of 12.12.2008 (E. 5)

In the area of occupational benefit schemes, the Federal Supreme Court confirmed that municipalities as independent bearers of public tasks are generally free to establish their own benefit institutions or to join existing ones. A cantonal law provision that prescribes mandatory affiliation to a specific benefit institution violates municipal independence protected by Art. 47 Cst.

«Municipalities are authorized to establish their own benefit institution for conducting occupational benefit schemes for their personnel or to join a registered benefit institution [...] for this purpose. A cantonal law provision that prescribes affiliation [...] to a specific benefit institution is contrary to federal law.»

#Relationship between federal and cantonal law

BGE 148 I 33 of 3.9.2021 (E. 5.2-5.4)

The Federal Supreme Court clarified the division of competences between the Confederation and cantons in healthcare during the COVID-19 pandemic. According to Art. 49 para. 1 Cst., cantons can only act in exhaustively regulated subject areas insofar as this is expressly provided for in federal legislation. However, cantonal organizational autonomy remains generally preserved.

«According to the principle of the supremacy of federal law (Art. 49 para. 1 Cst.), cantons can no longer exercise legislative competences in subject areas that federal legislation has exhaustively regulated, unless they are expressly provided for in the relevant federal legislation.»

BGE 148 I 19 of 3.9.2021 (E. 5)

In another COVID-19 decision, the Federal Supreme Court reaffirmed the importance of cantonal implementation freedom within federally prescribed framework conditions. Cantons retain a certain degree of discretion even with comprehensive federal regulations, but this may not be used to circumvent federal law requirements.

#Intercantonal cooperation

BGE 148 I 65 of 28.7.2021 (E. 3-4)

In intercantonal tax allocation, the Federal Supreme Court concretized the obligation for coordinated task fulfillment. Art. 127 para. 3 Cst. prohibits intercantonal double taxation and requires cantons to apply their tax sovereignty in a coordinated manner. This shows that cantonal independence goes hand in hand with the obligation to coordinate.

«Principles of intercantonal double taxation law and de facto prohibition of intercantonal double taxation for capital taxes.»

BGE 150 II 527 of 18.7.2024 (E. 4-5)

The Federal Supreme Court again emphasized the importance of uniform principles in intercantonal tax allocation. Cantonal tax sovereignty must be exercised in such a way that constitutional requirements for avoiding double taxation are met. This illustrates the tension between cantonal independence and federal coordination obligations.