1The Cantons shall be consulted on foreign policy decisions that affect their powers or their essential interests.
2The Confederation shall inform the Cantons fully and in good time and shall consult with them.
3The views of the Cantons are of particular importance if their powers are affected. In such cases, the Cantons shall participate in international negotiations in an appropriate manner.
Art. 55 BV — Participation of the Cantons in Foreign Policy Decisions
Art. 55 BV governs the participation of the cantons in foreign policy decisions of the Confederation. The provision has three paragraphs: the first establishes when cantons may have a say. The second obliges the Confederation to provide information and hold consultations. The third grants special rights.
When may cantons have a say? Cantons have participation rights when foreign policy decisions affect their competences or essential interests. Competences are all areas in which cantons may enact their own legislation or implement federal law. For example education, police or taxes. Essential interests exist when cantonal tasks are strongly influenced.
How does participation work? The Confederation must inform the cantons in a timely and comprehensive manner. This means: early enough so that cantons can still exert influence. And completely with all important information. In addition, it must obtain and hear their opinions.
What special rights exist? When cantonal competences are directly affected, cantons have stronger rights. Their opinions receive «special weight» - the Confederation must carefully examine them and provide justification if it deviates from them. In addition, cantonal representatives may participate in international negotiations.
Practical example: If the Confederation plans an education agreement with the EU, it must involve the cantons early. Education is a cantonal competence. The Confederation informs about negotiation objectives and obtains opinions. During negotiations, cantonal education directors may participate in the Swiss delegation.
Important limits: The cantons do not receive a veto right. The Confederation ultimately decides alone on foreign policy matters. The participation rights are limited to the preparation of decisions.
Historical background: Art. 55 BV was newly created in 1999. Previously, the Confederation had often decided on international treaties without the cantons, even when these were later responsible for implementation. The EEA negotiations in the 1990s showed how important cantonal involvement is. The Federal Act on the Participation of the Cantons in Foreign Policy (BGMK) of 2000 concretises the constitutional provision.
Legal protection: Cantons may sue violations of their participation rights before the Federal Supreme Court. In practice, however, this is difficult, as foreign policy decisions are often urgent and international treaties are no longer contestable after ratification.
The provision embodies cooperative federalism: Confederation and cantons work together, even though the Confederation retains decision-making competence.
Art. 55 BV — Participation of the cantons in foreign policy decisions
N. 1 Art. 55 BV represents a significant innovation of the 1999 total revision. Under the Federal Constitution of 1874, the Confederation possessed, according to the prevailing view (Burckhardt/Hangartner/Schindler), comprehensive competence to conclude international treaties, which also extended to areas of cantonal legislation at the domestic level (Waldmann, BSK BV, Art. 55 N. 1). Fleiner, in contrast, advocated a federalist view that disputed this comprehensive federal competence in foreign affairs (Waldmann, BSK BV, Art. 55 N. 1).
N. 2 The Federal Constitution of 1999 enshrined explicit participation rights of the cantons in foreign policy for the first time. The Federal Council message on the new Federal Constitution emphasises that the cantons should be more closely involved in the preparation of foreign policy decisions when their competences or essential interests are affected (BBl 1997 I 1, 240 f.). This constitutional entrenchment recognises the increasing interconnection of foreign and domestic policy and takes account of the fact that international legal obligations increasingly affect areas of cantonal competence.
N. 3 Art. 55 BV stands in systematic connection with the foreign policy competences of the Confederation (→ Art. 54 BV) and the obligation of the cantons to observe international law (→ Art. 5 para. 4 BV). The provision concretises the general principle of cooperation (→ Art. 44 BV) for the area of foreign policy and supplements the cantonal treaty-making competences (→ Art. 56 BV).
N. 4 The participation rights under Art. 55 BV differ from the cantons' own foreign policy competence under Art. 56 BV: While Art. 56 BV grants the cantons independent possibilities for action under international law in their areas of competence, Art. 55 BV regulates their participation in federal competence. This differentiation reflects the dual structure of the Swiss foreign policy system.
N. 5 Participation under para. 1 requires two cumulative elements: The foreign policy decisions must affect (1) cantonal competences or (2) essential cantonal interests. Cantonal competences encompass all areas in which the cantons possess legislative, executive or organisational competences (Waldmann, BSK BV, Art. 55 N. 18-19). Essential interests go beyond this and capture significant economic, social or political concerns of the cantons (Waldmann, BSK BV, Art. 55 N. 20-21).
N. 6 The obligation to inform under para. 2 is concretised in two elements: The Confederation must inform (1) in due time and (2) comprehensively. "In due time" means that the information must be provided early enough that a substantial statement by the cantons is still possible and can flow into the decision-making process (Waldmann, BSK BV, Art. 55 N. 35). "Comprehensively" requires the communication of all information necessary for a well-founded statement (Waldmann, BSK BV, Art. 55 N. 36).
N. 7 The "particular weight" of cantonal statements under para. 3 represents a qualified obligation to take into consideration. Waldmann takes the position that this should be understood as a legal obligation and that deviation from a unanimous cantonal statement would only be permissible for overriding foreign policy reasons (Waldmann, BSK BV, Art. 55 N. 43). Participation in international negotiations takes place "in an appropriate manner", which enables flexible forms of participation adapted to the respective negotiating situation (Waldmann, BSK BV, Art. 55 N. 44-45).
N. 8 Violation of the participation rights under Art. 55 BV primarily has procedural consequences. Disregard of the obligations to inform and consult can lead to the annulment of the relevant decision, provided the violation is substantial and could have influenced the outcome. However, practical enforceability is limited, as foreign policy decisions are frequently withdrawn from judicial control (→ Art. 189 para. 4 BV).
N. 9 The obligation to take into consideration under para. 3 does not establish veto power for the cantons, but rather obliges the Confederation to careful balancing. In case of deviation from cantonal statements, the Confederation bears an increased obligation to provide reasons. In areas of cantonal competence, systematic non-consideration of cantonal positions can violate the federal order (→ Art. 3 BV).
N. 10 The legal nature of the participation rights is disputed. Waldmann qualifies the obligation to give particular weight to cantonal statements as an enforceable legal obligation (Waldmann, BSK BV, Art. 55 N. 43). Other authors emphasise the primarily political character of the norm and see enforcement located mainly in the political process (Ehrenzeller, Aussenpolitische Handlungsfähigkeit und Verfassung, FS Steinberger, 2002, 163 ff.).
N. 11 The question of whether the existing participation instruments are still sufficient given a qualitative development of Switzerland's international relations is also controversially discussed. The Federal Council currently sees no need for change and relies on dialogue and intensified cooperation within the existing framework (Waldmann, BSK BV, Art. 55 N. 8). Waldmann, in contrast, advocates for continuous review of the participation instruments at every stage of foreign policy development (Waldmann, BSK BV, Art. 55 N. 8).
N. 12 The practical implementation of the participation rights takes place mainly through the Federal Act on the Participation of the Cantons in the Foreign Policy of the Confederation (BGMK; SR 138.1) and the accompanying ordinance (MWVO; SR 138.11). Cantons should assert their being affected at an early stage and actively participate in the established consultation procedures. The Conference of Cantonal Governments (KdK) plays a central coordination role.
N. 13 When asserting participation rights, differentiation according to degree of impact is recommended: In case of direct impact on cantonal competences, reference should be made to the particular weight of statements under para. 3. Unanimous cantonal positions have greater political weight and increase the burden of justification for divergent federal decisions. Documentation of participation is relevant for any later disputes over the implementation of international legal obligations.
Art. 55 Cst. — Participation of the Cantons in Foreign Policy Decisions
The case law on Art. 55 Cst. is extremely sparse. This is explained by the fact that Art. 55 Cst. in its current form (participation of the cantons in foreign policy) was only introduced with the total revision of the Federal Constitution in 1999. Most older decisions cited under "Art. 55 Cst." concern the former freedom of the press provision (Art. 55 former Cst.), which is now regulated in Art. 17 Cst.
Art. 55 Cst. primarily codifies procedural obligations of the Confederation towards the cantons and does not contain justiciable subjective rights. The participation rights are mainly specified by the Participation Ordinance (ParticO; SR 158.1) and implemented in administrative practice. Judicial disputes are therefore rare.
BGE 125 I 227 cons. 5 (21 April 1999)
Cantonal initiative "Genève, République de Paix": Limits of cantonal activities in the field of foreign policy.
The Federal Supreme Court confirmed the basic federal competence in foreign policy, but allowed limited cantonal activities.
«Bei restriktiver Auslegung verstösst die Initiativbestimmung, welche eine Intervention des Kantons bei ‹internationalen Institutionen› vorsieht, nicht gegen die aussenpolitischen Kompetenzen des Bundes. Die Bestimmung ist so zu verstehen, dass sie dem Kanton nur dort ein Tätigwerden gestattet, wo er bereits über entsprechende Zuständigkeiten verfügt oder wo sein Handeln sich im Rahmen der ihm von der Bundesverfassung eingeräumten Kompetenzen bewegt.»
This decision clarifies the limits of cantonal foreign policy before the entry into force of the current Art. 55 Cst. and shows the tensions between cantonal interests and federal competences. The judgment is also relevant after 1999 for the interpretation of Art. 55 Cst., as it clarifies the constitutional limits of cantonal foreign policy.
The few procedural decisions deal with the practical implementation of participation rights in specific areas. However, there are no published BGE decisions that directly address violations of the information or participation rights under Art. 55 Cst.
The implementation of Art. 55 Cst. takes place mainly at the administrative level through:
Comment procedures for international treaties
Consultations on EU matters
Information on international negotiations
Participation in areas of cantonal competence
This practice has not yet led to significant judicial disputes, which indicates a fundamentally functioning cooperation between the Confederation and the cantons.
Art. 55 Cst. is a classic example of cooperative federalist norms that primarily take effect in political and administrative processes. The small number of judicial decisions reflects the predominantly procedural character of the provision. Future case law is conceivable in case of conflicts over the scope of information obligations or in case of insufficient consideration of cantonal opinions.