1Auf Antrag interessierter Kantone kann der Bund in folgenden Aufgabenbereichen interkantonale Verträge allgemein verbindlich erklären oder Kantone zur Beteiligung an interkantonalen Verträgen verpflichten:
a.
Straf- und Massnahmenvollzug;
b.
Schulwesen hinsichtlich der in Artikel 62 Absatz 4 genannten Bereiche;
c.
kantonale Hochschulen;
d.
Kultureinrichtungen von überregionaler Bedeutung;
e.
Abfallbewirtschaftung;
f.
Abwasserreinigung;
g.
Agglomerationsverkehr;
h.
Spitzenmedizin und Spezialkliniken;
i.
Institutionen zur Eingliederung und Betreuung von Invaliden.
2Die Allgemeinverbindlicherklärung erfolgt in der Form eines Bundesbeschlusses.
3Das Gesetz legt die Voraussetzungen für die Allgemeinverbindlicherklärung und für die Beteiligungsverpflichtung fest und regelt das Verfahren.
Art. 48a BV — Overview
Art. 48a BV enables the Confederation to compel cantons to engage in intercantonal cooperation. This exceptional provision only applies in nine important areas such as the execution of sentences, school education or highly specialised medicine. If cantons refuse the necessary cooperation, the Federal Assembly can oblige them to participate by federal decree.
Who is affected? All 26 cantons can be obliged to cooperate. Interested cantons can submit the application. The Federal Assembly decides on the declaration of general binding force. The people can vote against it by referendum.
How does the procedure work? The Federal Assembly issues a federal decree declaring general binding force (Art. 48a para. 2 BV). This is subject to the optional referendum according to Art. 141 para. 1 lit. d BV. An already negotiated intercantonal treaty must exist.
What legal effects arise? Obliged cantons either become a contracting party (accession) or must participate in certain aspects of cooperation. The treaties remain intercantonal law and do not become federal law. This was confirmed by the Federal Court in BGE 143 V 451.
Legal nature: According to disputed doctrine, Art. 48a BV is not directly applicable. Biaggini (BSK BV, Art. 48a N. 8) emphasises that the provision requires federal legislative specification. However, prevailing doctrine and practice assume direct applicability.
Point of contention: It is disputed whether treaties not yet in force suffice. Biaggini and Zehnder answer in the affirmative for definitively negotiated treaties. Others demand already valid treaty instruments.
Practical example: If only 20 of 26 cantons have acceded to the concordat on the execution of sentences, the remaining cantons can be obliged to participate by federal decree. Execution would then be regulated uniformly throughout Switzerland.
Preventive effect: Although hardly applied since 2008, Art. 48a BV promotes voluntary solutions. The mere threat of compulsion motivates cantons to engage in cooperative collaboration.
N. 1 Art. 48a FC was inserted into the Federal Constitution through the popular vote of 28 November 2004 in the context of the new design of financial equalisation and the distribution of tasks between the Confederation and the cantons (NFA). The provision entered into force on 1 January 2008 (BBl 2003 6591, 6634; BBl 2001 2291, 2387 ff.).
N. 2 The constitutional legislator recognised that the federal structure can lead to coordination problems in certain areas. The Federal Council message states: «The problem is particularly evident in the area of settlement areas and living spaces that are fragmented by cantonal boundaries» (BBl 2001 2387). Art. 48a FC is intended to ensure that cantons that refuse the necessary cooperation can ultimately be compelled to cooperate.
N. 3 The legislative history shows a paradigm shift in Swiss federalism: From the pure principle of voluntariness to a «cooperative federalism» with elements of compulsion (Waldmann, BSK BV, Art. 48a N. 1-4; Schlussbericht NFA 1999, 179 ff.).
N. 4 Art. 48a FC is systematically positioned between Art. 48 FC (intercantonal treaties) and Art. 49 FC (precedence and observance of federal law). The provision supplements the voluntary treaty system of Art. 48 FC with an element of compulsion for specific, exhaustively enumerated areas.
N. 5 The provision is part of the federal constitutional order of competences (Title 3, Chapter 1 FC). It modifies the relationship between federal and cantonal competences by empowering the Confederation to intervene in cantonal autonomy. This creates tension with → Art. 3 FC (cantonal autonomy) and → Art. 47 FC (independence of the cantons).
N. 6 Art. 48a FC concretises the general duty to cooperate from → Art. 44 FC for specific task areas. The provision is closely related to sector-specific cooperation obligations (→ Art. 62 para. 4 FC for education; → Art. 123 para. 2-3 FC for the execution of criminal sentences and measures).
N. 7 The scope of application is limited to nine task areas (lit. a-i). This enumeration is exhaustive (Waldmann, BSK BV, Art. 48a N. 11-24). An extensive interpretation is excluded, as this is an exceptional provision to the principle of cantonal autonomy.
N. 8 The listed areas are characterised by cross-border effects or the necessity of supraregional coordination:
Execution of criminal sentences and measures (lit. a)
Education according to Art. 62 para. 4 FC (lit. b)
Cantonal universities (lit. c)
Cultural institutions of supraregional importance (lit. d)
Waste management (lit. e)
Wastewater treatment (lit. f)
Agglomeration transport (lit. g)
Highly specialised medicine and specialist clinics (lit. h)
Institutions for the integration and care of disabled persons (lit. i)
N. 9 The Federal Assembly may oblige cantons to cooperate at the request of interested cantons (para. 1). The obligation is imposed through a federal decree declared generally binding (para. 2), which is subject to the optional referendum.
N. 10 A prerequisite is an existing or negotiated intercantonal treaty framework. It is disputed whether the treaty must already be in force: Biaggini (Komm. BV, Art. 48a N 5) and Zehnder (Diss. 2008, 26 Fn. 94, 38 f.) argue that a definitively negotiated treaty suffices, even for ordering the cooperation obligation according to para. 3.
N. 11 Art. 48a FC provides for two instruments (Waldmann, BSK BV, Art. 48a N. 25-28):
Obligation to accede to intercantonal treaties
Participation in intercantonal treaties without formal accession
N. 12 Participation enables flexible solutions where a canton does not have to assume all treaty obligations, but only participates in certain aspects (e.g., cost participation without co-decision rights).
N. 13 The declaration of general binding force has different legal consequences depending on the chosen instrument:
N. 14 In case of accession obligation, the affected canton becomes a contracting party with all rights and obligations. The treaty retains its intercantonal character (Waldmann, BSK BV, Art. 48a N. 26). This distinguishes Art. 48a FC from a federal competence: The treaties do not become federal law (BGE 143 V 451 E. 2.2).
N. 15 In case of participation obligation, only the obligations defined in the federal decree arise. The canton does not become a contracting party, but fulfils specific cooperation obligations ordered under federal law.
N. 16 The legal nature of the obligation is disputed: Biaggini (BSK BV, Art. 48a N. 8) emphasises that Art. 48a FC cannot be directly applied and requires federal legislative concretisation. However, practice shows that the Federal Assembly can act directly based on Art. 48a FC.
N. 17Controversial issue regarding direct applicability: Biaggini (Komm. BV, Art. 48a N. 8) argues that Art. 48a FC requires federal legislative concretisation. The prevailing doctrine (Waldmann, BSK BV, Art. 48a N. 8-9; Steinlin, LeGes 2011, 35, 42 ff.) and practice, however, assume direct applicability.
N. 18Controversial issue regarding treaty status: There is controversial discussion about whether Art. 48a FC applies only to existing treaties or also to treaties yet to be negotiated:
Extensive interpretation: Biaggini (Komm. BV, Art. 48a N. 5) and Zehnder (Diss. 2008, 38 f.) affirm application to definitively negotiated but not yet in-force treaties
Restrictive interpretation: Part of the doctrine requires an already in-force treaty as a point of reference
N. 19Controversial issue regarding relationship to special norms: The relationship to sector-specific cooperation obligations such as Art. 62 para. 4 FC (education) or Art. 123 para. 2-3 FC (execution of criminal sentences) is unclear. Waldmann (BSK BV, Art. 48a N. 10-36) sees Art. 48a FC as a general catch-all provision, while other authors assume a relationship of speciality.
N. 20Application: Interested cantons must substantiate their application to the Federal Assembly with reasons. The mere refusal attitude of individual cantons is insufficient; proof of an overriding public interest in cooperation is required (Moser, LeGes 2006, 43, 58 ff.).
N. 21Proportionality: The obligation must be proportionate (→ Art. 5 para. 2 FC). This means specifically:
The cooperation must be suitable for task fulfilment
No milder means may be available
The public interest must outweigh the restriction of cantonal autonomy
N. 22Legal protection: The optional referendum is available against the federal decree declaring general binding force (Art. 48a para. 2 FC). After entry into force, affected cantons can have the constitutionality reviewed in the context of concrete application acts (BGE 143 I 361 E. 5.2; Waldmann, BSK BV, Art. 48a N. 42).
N. 23Practical relevance: Despite its existence since 2008, Art. 48a FC has hardly been applied. The provision primarily has a preventive effect: The mere threat of declaration of general binding force promotes voluntary cooperation solutions (Biaggini, ZBl 2008, 345, 376 f.).
N. 24Distinction from Art. 48 FC: In practice, careful distinction must be made between voluntary intercantonal treaties according to Art. 48 FC and treaties declared generally binding according to Art. 48a FC. The IVSE, for example, is an agreement according to Art. 48 FC, not according to Art. 48a FC (BGE 143 V 451 E. 2.2).
BGE 143 V 451 (21 November 2017)
Distinction between intercantonal agreements under Art. 48 BV and generally binding agreements under Art. 48a BV.
The IVSE constitutes an intercantonal agreement under Art. 48 BV, not a generally binding intercantonal agreement under Art. 48a BV.
«The IVSE is an intercantonal agreement. It is not a generally binding intercantonal agreement under Art. 48a BV. Rather, it is an intercantonal agreement within the meaning of Art. 48 BV.»
BGE 143 I 361 (3 May 2017)
Treatment of proportionality review for cantonal initiatives that conflict with intercantonal agreements.
Cantonal initiatives can only be declared invalid if they are in obvious contradiction with higher-ranking law (including intercantonal agreements).
«The invalidation of an initiative submitted in the form of a general proposal due to incompatibility with higher-ranking law requires in the Canton of Graubünden that implementation of the initiative without obvious contradiction to higher-ranking law appears excluded from the outset.»
BGE 148 I 104 (26 April 2022)
Application to school coordination and legal protection in intercantonal concordats.
The School Concordat of 1970 establishes independent procedural rights and legal protection possibilities.
«The negative conflict of jurisdiction to be assessed results in formal denial of justice and a violation of the guarantee of legal recourse for the affected person seeking legal remedy.»
C-2251/2015 (9 June 2016)
Highly specialised medicine and intercantonal cooperation.
The Intercantonal Agreement on Highly Specialised Medicine (IVHSM) as an example of intercantonal coordination in healthcare.
«The complex treatment of strokes is assigned to highly specialised medicine.»
BGE 135 II 338 (10 August 2009)
Federal supervision over intercantonal agreements in the gambling sector.
The Federal Office of Justice is entitled to lodge appeals against decisions by organs of intercantonal agreements.
«The Federal Office of Justice is authorised in the gambling sector to bring public law appeals to the Federal Supreme Court on behalf of the Federal Department of Justice and Police against decisions of the Appeals Commission Intercantonal Agreement on Lotteries and Betting.»
BGE 141 II 262 (9 July 2015)
Division of competences for intercantonal bodies.
Intercantonal agreements can create independent procedural and decision-making powers.
«Overview of gambling regulation at federal and cantonal level.»
BGE 137 I 31 (13 October 2010)
Constitutional conformity of measures based on intercantonal concordats.
The Concordat on Measures against Violence at Sports Events can be challenged by appeal under Art. 82 lit. b FSCA.
«The provisions of the Concordat on Measures against Violence at Sports Events (Concordat) can be challenged by appeal under Art. 82 lit. b FSCA. The measures provided for in the Concordat (area ban, reporting requirement and police custody) are coercive police measures.»
150000251 (1 May 2012)
Federal competence for ICT cooperation between cantons.
The Federal Constitution does not grant the Confederation general competence for electronic administrative cooperation between cantons.
«The Federal Constitution does not grant the Confederation general competence to impose general technical and organisational requirements on the cantons for creating a uniform electronic administrative landscape.»
BVGE 2016/15 (9 June 2016)
Health insurance law aspects of intercantonal agreements.
Hospital planning and service provision in an intercantonal context.
The decision deals with the assignment of treatments to highly specialised medicine within the framework of the IVHSM.
8C_285/2017 (21 November 2017)
Application to social assistance jurisdictions.
Intercantonal agreements in the social sector must enable child protection measures that comply with federal law.
Jurisdiction for social assistance benefits in intercantonal placements is governed by federal law, even if intercantonal agreements provide for different arrangements.