1Federal law takes precedence over any conflicting provision of cantonal law.
2The Confederation shall ensure that the Cantons comply with federal law.
1The autonomy of the communes is guaranteed in accordance with cantonal law.
2The Confederation shall take account in its activities of the possible consequences for the communes.
3In doing so, it shall take account of the special position of the cities and urban areas as well as the mountain regions.
Art. 49 — Precedence and observance of federal law
#Overview
Art. 49 Cst. governs two central principles of the Swiss federal state: the precedence of federal law and federal supervision.
Paragraph 1 establishes that federal law takes precedence over cantonal law when the two conflict. This means: If the Confederation and a canton have different rules for the same problem, the federal rule applies. The cantonal law then becomes invalid (void). The prevailing view considers such cantonal law to be invalid, but recent doctrine criticises this blanket nullity consequence and calls for differentiated legal consequences depending on the situation (Waldmann, BSK BV, Art. 49 N. 24). The Federal Supreme Court has clarified that cantonal law is not only problematic in case of direct conflict, but also when it «runs counter to the sense and spirit of federal law» (BGE 144 I 113).
Paragraph 2 obliges the Confederation to supervise: It must ensure that the cantons observe federal law. This federal supervision encompasses various instruments — from the approval of cantonal enactments to the federal authorities' appeal (BGE 148 II 369).
Example: A canton enacts a law that generally prohibits smoking in restaurants, although the Federal Act on Protection against Passive Smoking permits smoking rooms. Here, federal law takes precedence — unless the cantonal law is permissible as a stricter provision «for the protection of health» (BGE 139 I 242).
Affected parties: All authorities (Confederation, cantons, communes), courts and ultimately all citizens, as Art. 49 Cst. ensures the uniform application of federal law throughout Switzerland.
Legal consequences: If cantonal law conflicts with federal law, affected parties may raise this objection before the courts. The Federal Supreme Court may directly repeal cantonal laws if they violate federal law (abstract judicial review under Art. 82 lit. b FSCA). In the application of law, federal law automatically takes precedence.
Art. 49 FC — Precedence and Observance of Federal Law
#Doctrine
#1. Legislative History
N. 1 Art. 49 FC traces back to Art. 2 of the Transitional Provisions to the Federal Constitution of 1874 (oFC), which contained the principle «federal law takes precedence over cantonal law». In the Federal Council's Message of 20 November 1996, the Federal Council noted that this principle was an «implicit component of Art. 3 FC» (cf. BBl 1997 I 215 f.) and should henceforth be expressly codified. The reanchoring of the principle in the substantive constitutional text served two purposes: on the one hand, systematic clarity — the rule of precedence does not belong in transitional provisions —, and on the other, the express linkage with the Confederation's supervisory mandate in a single article (BBl 1997 I 596).
N. 2 The Federal Council opted for a two-paragraph structure: para. 1 codifies the principle of precedence, para. 2 anchors federal supervision as its instrument of enforcement. The Message emphasises that the precedence rule relates to «federal law enacted within the scope of federal competence» (BBl 1997 I 215 f.); federal law enacted in excess of federal competence would not take precedence over cantonal law.
N. 3 During the parliamentary deliberations in 1998, the differences between the National Council and the Council of States did not centre on Art. 49 FC itself, but on other parts of the constitutional revision; the actual rule of precedence remained uncontested in substance. The Conciliation Conference agreed on the current text, which was adopted by both chambers on 18 December 1998 and by the people on 18 April 1999. Art. 49 FC has been in force since 1 January 2000.
#2. Systematic Classification
N. 4 Art. 49 FC appears in Chapter 3 of Title 3 («Confederation and Cantons»), thus within the organisational law of the federal order. The provision is conceived as a conflict-of-laws norm: it does not determine when the Confederation may legislate (that is governed by Art. 54 ff. FC), but rather what applies when federal law and cantonal law conflict. ↔ Art. 3 FC (cantonal sovereignty as the starting point), → Art. 5 FC (rule of law principle: all state activity is bound by law), → Art. 46 FC (implementation of federal law by the cantons), → Art. 190 FC (binding force of federal statutes and international law upon the Federal Supreme Court).
N. 5 According to consistent Federal Supreme Court case law, the derogatory force of federal law (para. 1) is not merely an objective constitutional principle, but may be invoked as a constitutional individual right (BGE 127 I 60 E. 4a; BGE 134 I 23 E. 6.1; BGE 138 I 356 E. 5.4.2). The Federal Supreme Court reviews complaints under Art. 49 para. 1 FC with full cognition (BGE 144 I 113 E. 6.2; BGE 138 I 356 E. 5.4.2). Systematically, the principle belongs to the constitutional guarantees that protect individuals from cantonal law imposing obligations or curtailing rights in contravention of federal law.
N. 6 The question of federal supervision (para. 2) must be distinguished from the derogatory force of federal law. Federal supervision under para. 2 is an instrument governing the relationship between the Confederation and the cantons; it does not confer direct subjective rights on private individuals. The authorities' appeal by the Confederation is a procedural instrument for enforcing this supervision (BGE 148 II 369 E. 3.1).
#3. Content of the Provision
3.1 Para. 1: Precedence of Federal Law (Derogatory Force)
N. 7 The Federal Supreme Court distinguishes two conflict scenarios:
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Exhaustive federal legislation: Where the Confederation regulates a subject matter exhaustively, cantonal legislation in that area is excluded from the outset, even if a concrete conflict cannot be demonstrated in an individual case (BGE 127 I 60 E. 4a; BGE 144 I 113 E. 6.2; BGE 145 I 26 E. 3.1).
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Non-exhaustive federal legislation: Where the Confederation regulates a subject matter only in part, the cantons may enact supplementary provisions, provided these do not conflict with the spirit and intent of federal law and do not impair or frustrate its purpose (BGE 127 I 60 E. 4a; BGE 144 I 113 E. 6.2; BGE 145 I 26 E. 3.1).
N. 8 The «spirit and intent» standard extends further than a formal conflict with the wording of the statute. The rule of precedence also applies where cantonal law does not literally contradict federal law but deprives it of its practical effectiveness. Whether federal law exhaustively regulates a subject matter is determined by interpreting the relevant federal provisions (BGE 138 I 356 E. 5.4.2). The Federal Supreme Court reviews cantonal law with full cognition to determine whether it is compatible with federal law; cantonal provisions amenable to a federal-law-compliant interpretation are not annulled (BGE 145 I 26 E. 1.4).
N. 9 Precedence presupposes federal law enacted within the scope of federal competence (BBl 1997 I 215 f.). Where the federal legislature exceeds its competences, there is no federal law capable of taking precedence; pursuant to Art. 190 FC, the Federal Supreme Court may nonetheless apply such federal law insofar as it has the character of a federal statute. → Art. 190 FC.
N. 10 The rule of precedence is addressed primarily to state authorities: courts must decline to apply cantonal law that is contrary to federal law (BGE 138 I 356 E. 5.4.6). The incompatibility of a cantonal provision with federal law renders it inapplicable in the individual case; formal annulment is not required for the immediate derogatory effect to operate. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 1862, speak of «automatic displacement».
3.2 Para. 2: Federal Supervision
N. 11 Para. 2 obliges the Confederation to ensure that the cantons comply with federal law. The supervisory obligation is directed at all cantons and covers both the implementation of federal law and the enactment of cantonal legal acts in areas of concurrent competence. According to Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1176 and N. 1178, federal supervision is not a matter of free discretion but a duty of the Confederation; its modalities are governed by the relevant implementing legislation (e.g. the Government and Administration Organisation Act, GAOA).
N. 12 The procedural instrument constituting this supervision is the authorities' appeal by the Confederation: the Federal Supreme Court has clarified that this serves to ensure the uniform and correct application of federal law and is an instrument of federal supervision that relies on the cantonal appeal system (BGE 148 II 369 E. 3.1). It does not establish an autonomous federal-law appeal channel but makes use of existing cantonal avenues of appeal.
#4. Legal Consequences
N. 13 Where a cantonal provision infringes Art. 49 para. 1 FC, it is inapplicable in the individual case («derogatory effect»). In the context of abstract review of norms (Art. 82 lit. b BGG), the Federal Supreme Court may annul the cantonal provision if it is not amenable to any federal-law-compliant interpretation (BGE 145 I 26 E. 1.4 and E. 8.4). An annulment by the Federal Supreme Court takes effect erga omnes.
N. 14 In concrete review proceedings, the Federal Supreme Court declines to apply the cantonal provision that is contrary to federal law in the individual case and decides on the basis of the superior federal law (BGE 138 I 356 E. 5.4.6). Under Art. 49 para. 1 FC, the Federal Supreme Court reviews with full cognition, not merely on the standard of arbitrariness (BGE 144 I 113 E. 6.2).
N. 15 Private individuals may raise a violation of Art. 49 para. 1 FC by way of a public-law appeal (Art. 95 lit. a BGG). In abstract norm review proceedings, virtual affectedness suffices (BGE 145 I 26 E. 1.2). A complaint invoking the derogatory force of federal law is subject to the qualified duty to state reasons pursuant to Art. 106 para. 2 BGG (BGE 134 I 23 E. 6.1).
#5. Disputed Questions
N. 16 Exhaustive vs. non-exhaustive federal regulation: The decisive doctrinal controversy concerns the criteria by which a subject matter is considered «exhaustively» regulated by federal law. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 1868, require that the federal legislature's intention to regulate comprehensively must be clearly discernible; implicit exhaustion suffices only where there is an unambiguous conceptual unity. Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 729, stress that exhaustiveness must always be determined by interpreting the federal statute and does not follow merely from the existence of a federal regulation. The Federal Supreme Court has adopted this teleological method of interpretation (BGE 138 I 356 E. 5.4.2).
N. 17 Stricter cantonal law («favour rule»): It is uncontested that cantons may enact stricter provisions in areas not exhaustively regulated where federal law permits this or where a distinct, constitutionally recognised cantonal interest exists. The Federal Supreme Court has expressly confirmed this for health protection, where cantonal rules stricter than the federal minimum standard were permissible (BGE 139 I 242 E. 5.1). The boundary in individual cases remains disputed: Rhinow/Schefer/Uebersax (N. 1870) regard cantonal law as contrary to federal law already where it jeopardises the uniform enforcement of federal law; Häfelin/Haller/Keller/Thurnherr (N. 1177), by contrast, afford the cantons a greater margin of discretion as long as the normative purpose of federal law is not impaired.
N. 18 «Spirit and intent» formula: Whether the formula «against the spirit and intent of federal law» constitutes an independent standard or coincides with the «impair the purpose» criterion is not uniformly answered in legal scholarship. The Federal Supreme Court consistently applies both elements cumulatively and without a clear dividing line (BGE 144 I 113 E. 6.2; BGE 145 I 26 E. 3.1). Häfelin/Haller/Keller/Thurnherr (N. 1177) treat them as two sides of the same review standard. Rhinow/Schefer/Uebersax (N. 1868 f.), by contrast, draw a distinction: «spirit and intent» concerns the teleological conformity of the cantonal provision with federal law, while the frustration clause targets the specific normative purpose.
N. 19 Autonomy of implementation vs. substantive binding effect: Under Art. 46 para. 3 FC, the cantons enjoy autonomy in implementation; Art. 49 para. 1 FC restricts this substantively in areas not exhaustively regulated. In BGE 145 I 26 (premium reduction, Canton of Lucerne), the Federal Supreme Court clarified that even cantonal implementing legislation motivated by fiscal policy must comply with the minimum requirements of federal law and that the cantons' margin of manoeuvre exists only within the framework set by federal law (E. 8.3). Müller/Schefer, pp. 729 f., note that the federal legislature may, through deliberately open-ended formulations, leave room for cantonal action without thereby relinquishing the principle of precedence.
#6. Practical Guidance
N. 20 Anyone raising a complaint of infringement of Art. 49 para. 1 FC must specify in detail which particular federal law provision takes precedence over the cantonal provision and in what respect a conflict exists (BGE 134 I 23 E. 6.1; qualified duty to state reasons pursuant to Art. 106 para. 2 BGG). A blanket enumeration of federal statutes does not suffice.
N. 21 In abstract norm review proceedings (Art. 82 lit. b BGG), cantonal legal remedies must be exhausted where cantonal law provides for an appeal against the enactment in question (Art. 87 para. 2 BGG). In abstract norm review proceedings, the Federal Supreme Court annuls a cantonal provision only where it is not amenable to a federal-law-compliant interpretation; mere potential incompatibility with federal law does not lead to annulment (BGE 145 I 26 E. 1.4).
N. 22 Where cantonal implementing legislation is at issue, it must first be examined whether federal law exhaustively regulates the area in question or whether a concurrent situation exists. Exhaustively regulated federal law excludes any cantonal legislation, regardless of whether the cantonal provision in fact conflicts with federal law in an individual case. In areas not exhaustively regulated, the cantonal provision must be measured against the standard of the spirit and intent and the purpose of federal law — a stricter, teleologically guided test that goes beyond the standard of arbitrariness.
N. 23 For federal supervision under para. 2, the Confederation has various instruments at its disposal: the authorities' appeal (→ BGE 148 II 369), directives, approval requirements in special legislation, and the political supervisory instruments under the GAOA. Federal supervision must be strictly distinguished from judicial norm review by the Federal Supreme Court; it is a political-administrative, not a judicial, instrument.
N. 24 In cases of concurrence of fundamental rights — where in addition to Art. 49 para. 1 FC a specific fundamental right is also engaged (e.g. economic freedom, Art. 27 FC; guarantee of ownership, Art. 26 FC) — the Federal Supreme Court examines the specific fundamental rights complaint first; Art. 49 para. 1 FC then recedes in the structure of reasoning (BGE 131 I 223 E. 2). In practice, Art. 49 para. 1 FC is often invoked cumulatively alongside specific fundamental rights complaints.
#Case Law
#Principles of the Primacy of Federal Law
BGE 144 I 113 of 4 July 2018 The requirement of primacy and compliance with federal law demands not only that cantonal law does not contradict federal law, but also that it corresponds to the sense and spirit of federal law. Federal Supreme Court review is limited to whether a cantonal regulation runs counter to federal law in its effects.
«The requirement of primacy and compliance with federal law pursuant to Art. 49 Constitution demands not only that cantonal law does not contradict federal law, but also that it corresponds to the sense and spirit of federal law.»
BGE 149 I 172 of 19 January 2023 Cantonal law that disregards a loss of income that has occurred in a retroactive application for premium reduction contradicts the sense and spirit of federal law. A calculation gap justified by transitional law also violates the primacy of federal law.
«A calculation gap justified by transitional law, which leads to the financial circumstances of the insured persons in a specific year not being considered in any benefit year when determining entitlement to premium reduction, is also incompatible with the requirements of federal law.»
BGE 150 II 98 of 7 December 2023 The levying of a cantonal hand change tax on the occasion of a change of fund management does not make this change impossible and violates neither the Financial Market Infrastructure Act nor the principle of the primacy of federal law. The federal regulation of collective investment schemes conflicts with cantonal fiscal sovereignty.
«The levying of the hand change tax does not make the change of fund management impossible and violates neither Art. 39 FMIA nor the principle of the primacy of federal law.»
#Federal Competence and Cantonal Autonomy
BGE 142 I 99 of 31 March 2016 In water use, there is a basic competence of the Confederation with simultaneous water sovereignty of the cantons. The cantons are empowered to either use public waters themselves or to grant usage rights to third parties by way of concession. No federal law obligation for public tender before granting concessions.
«Water sovereignty constitutes a cantonal regale, which is why the power of disposal over public waters is excluded from the scope of application of economic freedom. The granting of concessions lies within the proper discretion of the concession authority.»
BGE 139 I 242 of 7 July 2013 Art. 4 of the Federal Act on Protection from Passive Smoking enables the cantons to enact stricter provisions «for the protection of health». A cantonal service prohibition in separated smoking rooms goes beyond the federal minimum regulation but is permissible.
«The cantonal provision thus represents a tightening compared to the federal regulation, which is however covered by Art. 4 PaRG, which expressly grants the cantons the authority to enact 'stricter provisions for the protection of health'.»
#Derogatory Force of Federal Law
BGE 127 I 60 of 2001 The derogatory force of federal law means that a cantonal or municipal cost allocation regulation must be compatible with federal law. Federal law does not have to be exhaustive in order to supersede cantonal regulations.
«The appellant alleges a violation of the principle of the derogatory force of federal law. [...] This opens up the possibility for the authorities to direct traffic by means of traffic regulations and takes account of the associated cost allocation.»
BGE 128 I 206 of 19 June 2002 The obligation imposed on the debt collection and bankruptcy office for the comprehensive sale of apartments and to obtain prior authorization contradicts federal law. The DEBA regulates forced sale exhaustively.
«The obligation imposed on the debt collection and bankruptcy office to sell the apartments together and to request prior authorization contradicts federal law, in particular Art. 140 et seq. DEBA.»
#Constitutional Supervision by the Confederation
BGE 148 II 369 of 15 March 2022 The sense and purpose of the administrative appeal by the Confederation is to ensure the uniform and correct application of federal law. It is a means of federal supervision that draws on the cantonal legal remedy system.
«The sense and purpose of the administrative appeal by the Confederation is to ensure the uniform and correct application of federal law. It is a means of federal supervision that draws on the cantonal legal remedy system for this purpose.»
BGE 127 II 1 of 25 June 2000 The complaint that a cantonal levy is incompatible with federal law can be raised with the appeal in public law matters since the total revision of the Federal Constitution. Tax exemption of federal institutions takes precedence over cantonal levy law.
«The complaint that a cantonal levy is incompatible with federal law can be raised with the Federal Supreme Court by means of an appeal in public law matters since the total revision of the Federal Constitution.»
#Cantonal Enforcement Autonomy
BGE 136 I 220 of 15 April 2010 A cantonal regulation according to which premium reduction contributions can be set off against tax debts is incompatible with the objective of the HIA and therefore violates federal law.
«A cantonal regulation according to which premium reduction contributions can be set off against tax debts is incompatible with the objective of the HIA and therefore violates federal law.»
BGE 141 V 455 of 2 July 2015 The issuance of the insured person's card for mandatory health insurance is exhaustively regulated by federal law. The principle of the primacy of federal law is violated when the health insurer relies on cantonal law to evade its obligation under federal law.
«The principle of the primacy of federal law is violated when the health insurer relies on cantonal law to evade its obligation to issue the card.»
#Abstract Judicial Review
BGE 142 I 16 of 2016 (Italian version) The protection of university designations by cantonal law must comply with the Higher Education Promotion and Coordination Act. Art. 29 HEPCA provides that higher education institutions receive the right to use the corresponding designation with institutional accreditation.
BGE 133 I 206 of 1 June 2007 The constitutionality of degressive cantonal tax rates must be examined. Legitimation to challenge tax rates with constitutional appeal must be given.
«Inadmissibility of limiting the review to pure arbitrariness in the tax burden on natural persons through degressive rates.»