1Die Gemeindeautonomie ist nach Massgabe des kantonalen Rechts gewährleistet.
2Der Bund beachtet bei seinem Handeln die möglichen Auswirkungen auf die Gemeinden.
3Er nimmt dabei Rücksicht auf die besondere Situation der Städte und der Agglomerationen sowie der Berggebiete.
Art. 50 BV
#Overview
Art. 50 BV regulates the relationship between the Confederation and municipalities in Switzerland. The provision has been in force since 1 January 2000 and for the first time brought an express constitutional mention of municipalities (BBl 1997 I 1, 203 f.). It does three things: It guarantees municipal autonomy, obliges the Confederation to consider the effects of its actions on municipalities, and requires special consideration for cities, agglomerations and mountain regions.
Municipal autonomy means that municipalities can decide independently in certain areas. Cantonal law determines where municipalities are autonomous. Typical areas are building permits, naturalizations or local traffic organization. Example: A municipality can decide for itself whether to approve a building application for a single-family house, as long as it observes cantonal and federal laws.
The federal guarantee was controversial in legal doctrine. While Saladin regarded municipal autonomy as a principle already under the old constitution, the prevailing doctrine considered it only a cantonal institution (Meyer, BSK BV, Art. 50 N. 6). Today there is dispute over whether Art. 50 para. 1 BV has only declaratory significance or strengthens protection (Meyer, BSK BV, Art. 50 N. 11).
Duty of consideration means: The Confederation must consider how laws and other measures affect municipalities. Example: When enacting a new environmental law, the Confederation must examine what costs and tasks this will bring to municipalities.
Special consideration goes further than mere consideration. Cities, agglomerations and mountain regions have special problems: Cities struggle with traffic and noise, mountain regions with emigration and difficult infrastructure. The Confederation must actively take these challenges into account in its actions.
The rights of municipalities can be enforced before the Federal Supreme Court. However, the Federal Supreme Court only examines whether cantonal or federal authorities have acted arbitrarily. Case law shows: Municipal autonomy protects particularly in spatial planning (BGE 136 I 265), in naturalization law (BGE 139 I 169) and in public procurement (BGE 143 II 553).
Art. 50 BV — Municipal Autonomy
#Doctrine
#1. Legislative History
N. 1 Municipal autonomy was not expressly enshrined in the Federal Constitution of 1874. The Federal Supreme Court consistently qualified it as an institution of cantonal law, without any guarantee under federal constitutional law (cf. BGE 131 I 91 E. 2: «The municipalities and their autonomy were not mentioned in the old Federal Constitution»). With the total revision of the Federal Constitution in 1999, Art. 50 BV — referred to in the preliminary draft as Art. 41 VE 96 — was introduced as a new provision. The Federal Council's Message (BBl 1997 I 563 f.) stated that the purpose of the provision was to secure the position of municipalities within the federal state and to allow the cantons to determine their organisation and the scope of their autonomy. The Federal Council deliberately refrained from establishing a direct federal guarantee of municipal autonomy; the terse formulation was intended to leave the cantons maximum latitude (BBl 1997 I 597).
N. 2 The parliamentary deliberations were particularly contentious with regard to paragraphs 2 and 3. In the Council of States, rapporteur Aeby Pierre (S, FR) presented the committee version, while Uhlmann Hans (V, TG) moved to delete paragraph 2, arguing that a separate mention of cities and agglomerations would create «second-class municipalities». Federal Councillor Leuenberger Moritz defended the inclusion of agglomerations, noting that between 70 and 80 per cent of the population now lived in agglomerations. Rhinow René (R, BL) cautioned against diluting the compromise and emphasised: «I now ask all those who do not live in urban agglomerations to bear in mind that this other Switzerland exists and that it also wishes to be mentioned in the Constitution.» (AB 1998 SR Separatdruck). The agreement on the present text — with the simultaneous mention of cities, agglomerations and mountain regions in paragraph 3 — is largely attributable to a conciliation motion by Loretan Willy (R, AG).
N. 3 In the National Council, the minority led by Schlüer Ulrich (V, ZH) moved to delete paragraph 3 and warned against the creation of new subsidy channels. Gysin Remo (S, BS) countered: «Regional centres require not only intra-cantonal, but also inter-cantonal and, in part, international cooperation.» (AB 1998 NR Separatdruck). Federal Councillor Koller Arnold urged restraint regarding any cantonal obligation with respect to cities: «It is not appropriate for the Confederation to interfere unnecessarily in the cantons' organisational autonomy.» The conciliation conference adopted the present text; both chambers approved the provision in the final vote on 18 December 1998.
#2. Systematic Classification
N. 4 Art. 50 BV is situated in Chapter 4 of Title 2 («Confederation and Cantons»), which governs relations between the Confederation and the cantons (Art. 44–53 BV). The provision is an institutional guarantee sui generis: it guarantees municipal autonomy as such, but does not define its content under federal law; instead it refers to cantonal law. It is not a competence norm in the ordinary sense (→ Art. 54 ff. BV) and does not confer a subjective right on individuals; however, municipalities may lodge a complaint on this basis (→ Art. 189 para. 1 lit. e BV). Private individuals may invoke municipal autonomy insofar as this guarantee may have an effect on their legal or factual position (BGE 141 I 36 E. 1.2.4).
N. 5 The provision has three tiers: paragraph 1 contains the substantive autonomy guarantee with reference to cantonal law; paragraph 2 establishes a duty of the Confederation to have regard to municipalities (not to cantons); paragraph 3 specifies this duty in relation to cities, agglomerations and mountain regions. The relationship between the three paragraphs is not seamless: paragraph 1 is directly applicable and justiciable; paragraphs 2 and 3 have the character of directives addressed to the Confederation, but do not confer enforceable subjective rights on municipalities vis-à-vis the Confederation. ↔ Art. 3 BV (cantonal sovereignty), → Art. 5 BV (rule of law), → Art. 36 BV (proportionality), → Art. 189 para. 1 lit. e BV (justiciability).
#3. Content of the Provision
3.1 Paragraph 1: Guarantee of Municipal Autonomy
N. 6 Art. 50 para. 1 BV guarantees municipal autonomy «within the limits set by cantonal law». This means that the scope of autonomy is determined entirely by cantonal constitutional and statutory law. Federal constitutional law secures autonomy only in principle; its content in a specific subject area is determined solely by the applicable cantonal law. It follows that where cantonal law does not grant a municipality any independent decision-making freedom in a given area, there is no autonomy protected under federal constitutional law (BGE 128 I 3 E. 2a; BGE 131 I 91 E. 2).
N. 7 According to consistent case law, municipalities are autonomous in a subject area if the applicable cantonal law does not exhaustively regulate that area but instead leaves it entirely or in part to the municipality for regulation, thereby granting it a relatively significant degree of decision-making freedom. The protected sphere of autonomy may relate to the power to enact or implement the municipality's own communal rules, or to a corresponding margin of discretion in applying cantonal or federal law. The protection of municipal autonomy requires that autonomy exist not across an entire field of activity, but solely in the contested area (BGE 141 I 36 E. 5.3; BGE 145 I 52 E. 3.1; BGE 128 I 3 E. 2a).
N. 8 Where municipal autonomy exists, Art. 50 para. 1 BV protects, in particular, against cantonal appellate authorities failing to respect the margin of assessment and discretion of the municipal authorities and substituting their own assessment for that of the municipality (BGE 138 I 143 E. 3.2). A cantonal appellate authority violates municipal autonomy if it exceeds a margin of assessment falling within the scope of municipal autonomy — even where its review nominally extends to questions of expediency (BGE 145 I 52 E. 3.6).
N. 9 Art. 50 para. 1 BV does not contain a guarantee of continued existence for individual municipalities. Cantonal authorities are in principle empowered to compulsorily merge municipalities, provided there is a legal basis for doing so, the measure serves a public interest, and it is proportionate. In the context of an autonomy complaint, an appellant municipality may argue that the statutory conditions for a compulsory merger are not satisfied or that the measure is disproportionate (BGE 131 I 91 E. 2, 3.3).
N. 10 The Federal Supreme Court's scope of review in municipal autonomy complaints is governed by Art. 95 BGG: federal law and cantonal constitutional rights — to which municipal autonomy belongs — are reviewed freely; other cantonal statutory law only for arbitrariness (BGE 141 I 36 E. 5.4; BGE 136 I 395 E. 2).
3.2 Paragraph 2: Confederation's Duty of Regard
N. 11 Paragraph 2 obliges the Confederation — not the cantons — to take into account, in the exercise of its activities, the possible effects on the municipalities. «Activities of the Confederation» encompasses legislation, implementation and administration. The provision is framed as an optimisation requirement: the Confederation must incorporate municipal concerns into its deliberations, but may depart from them on objective grounds. It constitutes an objective duty without a corresponding subjective right of municipalities vis-à-vis the Confederation. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1202, qualify paragraph 2 as a directive without direct justiciability against the Confederation.
3.3 Paragraph 3: Special Situation of Cities, Agglomerations and Mountain Regions
N. 12 Paragraph 3 concretises the duty of regard in respect of three types of municipality of overriding importance: cities, agglomerations and mountain regions. This enumeration is the result of the parliamentary compromise (→ N. 2–3): cities and agglomerations reflect «urban Switzerland», while mountain regions reflect thinly populated upland areas. Mentioning both types of municipality was intended to prevent one group from appearing to be privileged over the other («negative norm», AB 1998 SR Separatdruck, speech by Schmid Carlo).
N. 13 «Having regard» in paragraph 3 is not defined in more specific terms. When enacting legislation, the Confederation must take into account the particular challenges facing these types of municipality — the burden of centre costs borne by cities, the inter-communal interdependencies of agglomerations, and the structurally disadvantaged situations of mountain regions. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3157, regard paragraph 3 primarily as a programmatic policy norm that remains dependent on specific federal legislation (cf. in particular the NHG, RPG, and Interreg programmes).
#4. Legal Consequences
N. 14 A violation of Art. 50 para. 1 BV may be referred by municipalities to the Federal Supreme Court by way of an autonomy complaint (Art. 89 para. 2 lit. c BGG). The requirement is that the municipality be affected by the contested decision in its capacity as a bearer of sovereign authority; whether it in fact enjoys autonomy in the relevant area is a question of substantive assessment and not of standing (BGE 128 I 3 E. 1c). Private individuals may also invoke municipal autonomy insofar as the guarantee may have an effect on their legal or factual position (BGE 141 I 36 E. 1.2.4).
N. 15 If the Federal Supreme Court finds a violation of municipal autonomy, it annuls the contested decision and refers the matter back to the cantonal authority for a fresh determination, provided that authority failed to respect the municipality's margin of assessment (BGE 138 I 143 E. 4.4–4.5). In exceptional cases, the Federal Supreme Court decides the matter on the merits.
N. 16 A violation of Art. 50 paras. 2 and 3 BV does not, according to the prevailing view, give rise to a judicially enforceable legal position for municipalities against the Confederation. These paragraphs take effect primarily in the political process and as interpretive guidelines for federal law. An indirect effect arises insofar as federal statutes that disregard paragraph 2 may be reviewed for proportionality in the light of paragraph 1.
#5. Contested Issues
N. 17 Relationship between Art. 50 para. 1 BV and any federal constitutional guarantee of continued existence: Häfelin/Haller/Keller/Thurnherr, op. cit., N 1196 f., take the view that the provision protects only autonomy, not existence. The Federal Supreme Court has confirmed this (BGE 131 I 91 E. 2). Rhinow/Schefer/Uebersax, op. cit., N 3150, note, however, that a reckless dissolution of all municipalities in a canton would ultimately render the object protected by the provision — municipal autonomy as an institution — devoid of substance and would thereby violate Art. 50 para. 1 BV. The dispute is practically significant in cantons with an aggressive merger policy.
N. 18 Scope of review of cantonal courts with respect to municipal discretionary decisions: Schindler, Benjamin, «Die Gemeindeautonomie als Hindernis für einen wirksamen Rechtsschutz», Festschrift Jaag 2012, p. 149 ff., and Griffel, Alain, Raumplanungs- und Baurecht in a nutshell, 2012, p. 182, criticise the Federal Supreme Court's formula — according to which cantonal courts may only intervene when the municipal authority's discretionary decision is no longer objectively tenable — as being equivalent to an arbitrariness review and as impairing the right to judicial protection under Art. 29a BV. The Federal Supreme Court partially accommodated this criticism in BGE 145 I 52 E. 3.6 and clarified: cantonal courts must not wait until arbitrariness is established before intervening, but must nonetheless exercise restraint where questions concerning local conditions are at issue that the municipal authority knows better. A municipal authority also exceeds its margin of discretion when it is guided by irrelevant considerations or violates the principles of equality and proportionality.
N. 19 Justiciability of paragraph 2: Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 729, take the view that paragraph 2 contains a binding directive that goes beyond a mere programmatic norm. By contrast, Rhinow/Schefer/Uebersax, op. cit., N 3157, regard judicial enforcement of paragraph 2 against the Confederation as precluded, since municipalities lack a subjective right for this purpose. In practice, the Federal Supreme Court has not yet applied paragraph 2 as an independent standard of review; paragraph 1 remains the key provision.
N. 20 Definition of «agglomeration» in paragraph 3: In the National Council, Bircher Peter (C, AG) criticised the term «agglomeration» as legally insufficiently defined (AB 1998 NR Separatdruck). The academic literature (cf. Rhinow/Schefer/Uebersax, op. cit., N 3158) recommends recourse to the statistical definitions of the Federal Statistical Office; a legally binding definition is absent from the Constitution.
#6. Practical Notes
N. 21 Asserting a violation of autonomy: A municipality wishing to allege a violation of Art. 50 para. 1 BV must demonstrate: (1) in which subject area it enjoys autonomy under cantonal law; (2) that the cantonal authority has intervened in that area; and (3) that this intervention is not objectively justified or fails to respect the municipality's margin of discretion. Whether a municipality is in fact autonomous in the relevant area is reviewed freely by the Federal Supreme Court; whether it has correctly exercised its margin of discretion is reviewed only for arbitrariness, insofar as statutory law is concerned.
N. 22 Areas of practical relevance: Art. 50 para. 1 BV is relevant in a wide range of subject areas, notably in building and planning law (BGE 145 I 52, BGE 136 I 265, BGE 136 I 395), in public procurement (BGE 138 I 143, BGE 143 II 553), in naturalisation law (BGE 139 I 169, BGE 137 I 235), in education law (BGE 141 I 36) and in financial law (BGE 144 I 81). The decisive question is always whether cantonal law grants the municipality a relatively significant degree of decision-making freedom in the specific area.
N. 23 Spatial planning and cantonal structure plan proceedings: The Confederation and the cantons are obliged to involve municipalities appropriately in cantonal structure plan proceedings and to address their objections. The Federal Supreme Court has derived participation rights of municipalities from Art. 50 para. 1 BV in conjunction with Art. 29 para. 2 BV and the procedural provisions of the RPG (BGE 136 I 265 E. on consultation in cantonal structure plan proceedings; BGE 147 I 433; BGE 146 I 36).
N. 24 Cities and agglomerations (paragraphs 2 and 3): In federal legislation, Art. 50 para. 3 BV operates as an interpretive guideline. Federal authorities must, when drafting legislation affecting agglomerations and mountain regions — in particular in the areas of spatial planning, regional policy and fiscal equalisation — take into account the particular needs of these types of municipality. The provision may be invoked in political proceedings (consultation, parliamentary initiative), but cannot be directly relied upon before the courts as the basis for annulling federal law. → Art. 190 BV.
Art. 50 BV
#Case Law
#Foundations of Municipal Autonomy
BGE 131 I 91 of 19 January 2005 — Forced Merger of Municipalities Landmark judgment on the legal nature of municipal autonomy under the new Federal Constitution. The Federal Supreme Court establishes the cantons' competence to order forced mergers but subjects these to constitutional limitations.
«Art. 50 para. 1 BV now expressly guarantees municipal autonomy in accordance with cantonal law. Even under the scope of application of the new Federal Constitution, it remains the cantons' responsibility to determine whether and to what extent municipalities are granted autonomy.»
BGE 128 I 3 of 13 November 2001 — Poster Monopoly on Private Land Fundamental judgment on the intensity of review and the relationship between municipal autonomy and fundamental rights. First significant application of Art. 50 BV in case law.
«According to case law, municipalities are autonomous in a subject area when cantonal law does not comprehensively regulate it but leaves it wholly or partially to the municipality for regulation and thereby grants it relatively considerable decision-making freedom.»
#Spatial Planning Law and Participation Rights
BGE 136 I 265 of 27 August 2010 — Participation in Structure Planning Procedures Central decision on municipalities' participation rights in cantonal structure planning. The Federal Supreme Court strengthens the procedural rights of municipalities vis-à-vis the canton.
«Municipalities' right to be heard and to participate in structure planning procedures: The cantonal council violated the municipality's participation right because it did not examine its objection.»
BGE 147 I 433 of 21 December 2021 — Waste and Landfill Planning Confirmation of municipalities' participation rights in cantonal planning with spatial impact. The judgment extends case law on Art. 50 para. 2 BV regarding the federal obligation to consider.
«Waste and landfill planning is an area in which the cantons act within the framework of their planning sovereignty. In doing so, they must respect municipalities' participation rights.»
BGE 146 I 36 of 19 February 2020 — Updating the Structure Plan The Federal Supreme Court clarifies the prerequisites for challenging cantonal structure plan amendments by municipalities and strengthens their autonomy in the planning area.
«Municipal autonomy in connection with updating a structure plan: Contestability of cantonal structure planning measures before the Federal Supreme Court by affected municipalities.»
#Naturalisation Law
BGE 139 I 169 of 13 May 2013 — Naturalisation of a Mentally Disabled Person Landmark decision on the limits of municipal autonomy in naturalisation law. The Federal Supreme Court clarifies that municipal autonomy does not entitle discrimination.
«According to Federal Supreme Court case law, municipalities are autonomous in a subject area when cantonal law does not comprehensively regulate it but leaves it wholly or partially to the municipality for regulation and thereby grants it relatively considerable decision-making freedom.»
BGE 137 I 235 of 13 April 2011 — Language Skills and Integration The Federal Supreme Court confirms municipalities' autonomy in assessing naturalisation applications but sets constitutional limits.
«The cantonal court that reviews negative decisions on naturalisations must undertake a free review of the facts and the application of law.»
BGE 138 I 242 of 12 June 2012 — Local Integration in Naturalisations Confirmation of the wide discretionary scope of municipal authorities in assessing the integration of naturalisation candidates.
«Municipal citizens' assemblies have wide discretionary scope and a 'certain local integration' may be required of an applicant.»
#Public Procurement
BGE 138 I 143 of 25 January 2012 — Public Voting as Award Criterion Fundamental decision on municipalities' autonomy in procurement. The Federal Supreme Court recognises innovative procedures as an expression of municipal autonomy.
«It violates municipal autonomy when the cantonal appeal instance declares the award criterion 'Public Voting' to be fundamentally inadmissible.»
BGE 143 II 553 of 8 November 2017 — Weighting of the Award Criterion «Price» The Federal Supreme Court reaffirms municipalities' autonomy in determining award criteria in public procurement.
«The municipalities of the canton are fundamentally subject to cantonal procurement law but have a certain scope within the framework of municipal autonomy in the specific design.»
BGE 143 II 120 of 21 March 2017 — Granting of a Municipal Monopoly Confirmation of municipalities' competence to grant monopoly rights to private companies as an expression of their autonomy.
«Procedure for granting a monopoly right: Municipalities have autonomy in designing such procedures.»
#Construction and Planning Law
BGE 145 I 52 of 5 September 2018 — Aesthetic Regulation and Assessment Scope Landmark decision on the limits of cantonal review of municipal classification decisions. The Federal Supreme Court strengthens municipal autonomy vis-à-vis cantonal appeal instances.
«The construction appeal court may only overturn a classification decision by the municipal construction authority if it has exceeded the assessment and discretionary scope guaranteed by municipal autonomy.»
BGE 136 I 395 of 6 September 2010 — Interpretation of Zoning Regulations The Federal Supreme Court confirms municipalities' autonomy in interpreting cantonal legal concepts in construction law.
«Municipality's autonomy in interpreting the cantonal legal concept of moderately disruptive operation: The municipality has considerable scope.»
#Special Areas
BGE 144 I 81 of 22 March 2018 — Real Estate Capital Gains Tax and Financial Autonomy The Federal Supreme Court examines the effects of cantonal legislative amendments on municipal finances in light of Art. 50 BV.
«Asserting violation of municipal autonomy: Repeal of a norm that granted municipalities the right to a part of the revenue from real estate capital gains tax.»
BGE 141 I 36 of 21 March 2014 — School Language in Graubünden Application of Art. 50 BV in the education sector. The Federal Supreme Court strengthens municipalities' autonomy in language policy decisions.
«Art. 50 para. 1 BV guarantees municipal autonomy in accordance with cantonal law: School language as an area of municipal autonomy.»
BGE 145 I 121 of 19 February 2018 — National Church Law and Contributions The Federal Supreme Court applies Art. 50 BV to ecclesiastical law questions and confirms municipalities' autonomy in religious matters.
«Religious freedom and national church law are not violated by conditional contributions to counselling centres when municipal autonomy is respected.»
#Recent Developments
BGE 129 I 410 of 20 November 2003 — Submission Law in Graubünden Early application of Art. 50 BV to procurement law. The Federal Supreme Court recognises the autonomy of Graubünden municipalities in submission procedures.
«Autonomy of Graubünden municipalities in submission procedures: The award does not establish a contractual obligation but merely an entitlement to conclude a contract.»
BGE 126 I 133 of 7 June 2000 — Religious Freedom and Special Use Application of the old legal situation to the use of public land by religious organisations taking into account the municipal autonomy of that time.
«Municipal autonomy and intensity of review: Those who wish to distribute paid services must clearly identify religious purposes to the public.»