Art. 5a FC — Subsidiarity

#Doctrine

#1. Legislative History

N. 1 The Federal Constitutions of 1848 and 1874 contained no explicit subsidiarity article. The underlying federalist principle — federal competences as an exhaustively enumerated exception to the general competence of the cantons — was nonetheless always implicitly present (Art. 3 FC 1848/1874). The total revision of the Federal Constitution of 1999 did not incorporate the term «subsidiarity» into the constitutional text, despite preparatory work to that effect: at the initiative of Council of States member René Rhinow, the Chamber of Cantons struck the explicit entrenchment that had been foreseen at the time (Art. 34 para. 3 Draft FC 1996). Rhinow warned against an excessively vague and ambiguous constitutional concept (Official Bulletin CR 1998, p. 1107). The compromise result was Art. 42 para. 2 FC 1999, providing that the Confederation «assumes only those tasks that require uniform regulation».

N. 2 It was not until the reform of fiscal equalisation and the reallocation of tasks between the Confederation and the cantons (NFA) that Art. 5a FC was introduced. The NFA Message of 14 November 2001 described the principle of subsidiarity as a «maxim of political organisation» and justified its inclusion on the grounds of constitutionally entrenching the preference for decentralised performance of tasks and creating a heightened duty to justify steps towards centralisation (BBl 2002 2291, pp. 2339 f., 2457 f.). A potential accession to the EU and the entrenchment of the subsidiarity principle in EU law were cited as parallel developments (BBl 2002 2291, p. 2537). In the Council of States in 2002, the inclusion of a subsidiarity article was uncontested; the only point of dispute was its systematic placement: the deliberating committee voted by a majority for inclusion in the General Provisions (Art. 5a), while a minority favoured Art. 43a (Official Bulletin CR 2002, pp. 851 ff.). The National Council followed the Council of States majority in the vote (Official Bulletin NR 2003, p. 957). Art. 5a FC entered into force following the popular vote of 28 November 2004 (AS 2007 5765).

#2. Systematic Classification

N. 3 Art. 5a FC is located in Chapter 1 («General Provisions») of the Federal Constitution and is conceived as a comprehensive rule of state organisation that addresses all three levels of government — Confederation, cantons, and communes. This placement distinguishes Art. 5a FC from Art. 43a para. 1 FC, which in terms of content functions as a kind of hinge between the principles of subsidiarity and enumeration and governs only the relationship between the Confederation and the cantons. Whereas Art. 43a para. 1 FC specifies when the Confederation may assume tasks, Art. 5a FC formulates the underlying principle. Both provisions are mutually related: Art. 5a FC provides the normative standard, while Art. 43a FC constitutes its (partial) concretisation (Walther, Komm. Art. 5a FC, N 17).

N. 4 Art. 5a FC must be distinguished from and coordinated with the following constitutional provisions:

• → Art. 3 FC (reservation of cantonal sovereignty; the principle of enumeration is an expression of the subsidiarity of the Confederation)
• → Art. 42 FC (tasks of the Confederation)
• ↔ Art. 43a paras. 1–5 FC (principles governing the assignment of tasks; concretisation of the principle of subsidiarity)
• → Art. 46 paras. 1 and 3 FC (executive federalism; the Confederation's duty to preserve cantonal room for manoeuvre)
• → Art. 47 FC (autonomy of the cantons)
• → Art. 50 para. 1 FC (communal autonomy; constitutional concretisation of subsidiarity at the communal level)
• → Art. 190 FC (obligation to apply federal statutes; limitation on the justiciability of Art. 5a FC)

N. 5 Art. 5a FC is neither a fundamental rights provision nor a competence-conferring provision in the technical sense. It belongs to the category of structural principles of the Federal Constitution, which delineate the framework of state organisation without being directly enforceable. Art. 5a FC also does not encompass a «socio-political» subsidiarity principle — i.e. the relationship between the individual or civil society and the state; in that regard, Art. 6 FC and Art. 41 para. 1 FC are the applicable provisions (Walther, Komm. Art. 5a FC, N 27; Schweizer/Müller, SGK FC, Art. 5a N 7).

#3. Elements of the Provision / Normative Content

N. 6 The wording of Art. 5a FC contains three elements: (1) the scope of application («assignment and performance of governmental tasks»), (2) the normative command («must … be observed»), and (3) the principle («principle of subsidiarity»). All three elements require concretisation.

N. 7 Scope of application — «governmental tasks»: All phases of governmental action are covered, from legislation to implementation. The scope of application encompasses the relationship between the Confederation and the cantons as well as — notwithstanding a minority vote in the Council of States (Official Bulletin CR 2002, p. 852) — the relationship of the cantons to their communes. The NFA Message states that Art. 5a FC refers to all three levels of government (BBl 2002 2291, p. 2458; likewise Biaggini, BSK FC, Art. 5a N 10; Bellanger, CR FC, Art. 5a N 20 ff.; Schweizer/Müller, SGK FC, Art. 5a N 12 ff.). The relationship between the state and private parties, as well as international relations, are not addressed — in those contexts the idea of subsidiarity may at most apply by analogy (Walther, Komm. Art. 5a FC, N 27 f.).

N. 8 Normative command — «must be observed»: The command is directed primarily at the federal legislature, which must transpose constitutional federal competences into statutory law in a manner that is considerate of cantonal competences. It is further directed at the federal ordinance-making authority, at cantonal constitutional and statutory legislators, and — with respect to the performance of tasks in specific cases — at administrative authorities (Biaggini, BSK FC, Art. 5a N 13; Schweizer/Müller, SGK FC, Art. 5a N 21 f., 24 f.). For the constitutional legislator (people and cantons), Art. 5a FC can amount to no more than a political self-commitment; it does not materially restrict permissible constitutional amendments (Bellanger, CR FC, Art. 5a N 19; Biaggini, BSK FC, Art. 5a N 13).

N. 9 Content — «principle of subsidiarity»: The principle of subsidiarity is simultaneously a rule governing the allocation of competences and a rule governing the exercise of competences. As a rule governing the allocation of competences, it requires that governmental tasks be assigned to the smallest competent level capable of performing them. As a rule governing the exercise of competences, it obliges the Confederation to exercise its competences as sparingly as possible: exclusive federal competences are to be avoided where concurrent or parallel federal competences suffice; federal framework competences are to be preferred where exhaustive federal regulation is not required (Schweizer/Müller, SGK FC, Art. 5a N 19, 24; Bellanger, CR FC, Art. 5a N 29 ff.). The concretisation of these standards falls to the political authorities; Art. 43a para. 1 FC describes the criterion («exceed the capacity of the cantons or require uniform regulation»), without defining it exhaustively (Biaggini, BSK FC, Art. 43a N 2; Walther, Komm. Art. 5a FC, N 34).

N. 10 Delimitation: no socio-political subsidiarity principle and no duty to assist: Art. 5a FC does not oblige the Confederation to assume tasks from the cantons when the latter are overwhelmed; no duty of assistance on the part of the Confederation follows from it (Schweizer/Müller, SGK FC, Art. 5a N 18; Tschannen, Staatsrecht, 5th ed. 2021, N 729). Art. 5a FC also does not address whether the state should privatise tasks or delegate them to private parties — that is a separate question governed by other constitutional provisions (in particular Art. 94 FC) (BGE 138 I 378 E. 8.4; Bellanger, CR FC, Art. 5a N 35 ff.).

#4. Legal Consequences

N. 11 Duty to justify and give reasons: The principal legal consequence of Art. 5a FC is of a political-institutional nature: every centralisation of tasks or every encroachment upon cantonal or communal competences requires specific justification. This justification must be provided in the course of the legislative process and must be periodically reviewed for its continued adequacy (NFA Message, BBl 2002 2291, p. 2340; Schweizer/Müller, SGK FC, Art. 5a N 21, 28; Richli, Zum rechtlichen Gehalt und zur Prozeduralisierung des Subsidiaritätsprinzips, ZSR 2007, p. 80). Government bills that fall within the scope of application of Art. 5a FC must set out why the higher level of government should have jurisdiction.

N. 12 Standard of interpretation: Art. 5a FC is not an autonomous interpretive principle that overrides conventional legal methodology or generally requires a restrictive interpretation of federal competences. It must, however, be taken into account as part of the overall context of the Federal Constitution when achieving practical concordance: where a competence provision is susceptible to different interpretations, the interpretation that best conforms with Art. 5a FC is to be preferred (Biaggini, BSK FC, Art. 5a N 13; Schweizer/Müller, SGK FC, Art. 5a N 29; Ehrenzeller/Ehrenzeller, in: Gamper [ed.], Föderale Kompetenzverteilung in Europa, 2016, p. 44).

N. 13 No subjective rights — lack of justiciability: Art. 5a FC confers no enforceable subjective rights. The courts cannot review compliance with the principle of subsidiarity by the federal authorities; in particular, Art. 190 FC precludes constitutional review of the federal legislature (Biaggini, BSK FC, Art. 5a N 14; Bellanger, CR FC, Art. 5a N 19; BVGE 2015/33 E. 3.1). Art. 5a FC cannot be judicially enforced by way of a complaint concerning communal autonomy (Art. 50 para. 1 FC) either: the concretisation of communal autonomy by reference to the subsidiarity principle remains the political responsibility of the cantons (Schweizer/Müller, SGK FC, Art. 5a N 16; Meyer, BSK FC, Art. 50 N 30; NFA Message, BBl 2002 2291, p. 2458).

N. 14 The Federal Supreme Court confirmed this assessment in Judgment 1C_307/2020 of 16 June 2021 E. 4.2: Art. 5a FC is «primarily a maxim of political organisation» that, «according to its legislative history and conception, relates in the first instance to the relationship between the various levels of government». An autonomous plea of infringement of Art. 5a FC in specific administrative or judicial proceedings cannot therefore be substantiated and will not be examined in depth by the Federal Supreme Court.

#5. Contested Issues

N. 15 Justiciability — prevailing doctrine vs. minority view: The prevailing doctrine qualifies Art. 5a FC as non-justiciable (Biaggini, BSK FC, Art. 5a N 14; Bellanger, CR FC, Art. 5a N 19; Schweizer/Müller, SGK FC, Art. 5a N 16; Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1075). By contrast, Richli argues that the justiciability of Art. 5a FC «can hardly be denied any longer» (Richli, Zum rechtlichen Gehalt und zur Prozeduralisierung des Subsidiaritätsprinzips, ZSR 2007, p. 68; in agreement Waldmann, in: Waldmann/Hänni/Belser [eds.], Föderalismus 2.0, 2011, pp. 208 f.). The practice of the Federal Supreme Court and the Federal Administrative Court (BVGE 2015/33 E. 3.1; Judgment 1C_307/2020 E. 4.2) follows the prevailing doctrine. Even if the minority view were adopted, Art. 190 FC would remain an insurmountable procedural obstacle to judicial review of the federal legislature.

N. 16 Relationship to Art. 94 FC — «socio-political» subsidiarity: It is disputed whether Art. 5a FC also guides the relationship between the state and private enterprise. BGE 138 I 378 E. 8.4 resolved this question: the Federal Supreme Court rejected the view advanced in academic writing (Biaggini, Privatisierung, Rapports suisses, 1998, pp. 77 ff.; Richli, ZSR 1998 II, pp. 260 ff., 295 f.) that state economic activity is subsidiary to private initiative and may only occur in cases of market failure, characterising it as «more of an economic policy model than a justiciable rule of law». Art. 5a FC, «according to its legislative history and conception, relates in the first instance to the relationship between the various levels of government, not to the relationship between the state and private enterprise» (BGE 138 I 378 E. 8.4, with reference to Biaggini, FC, N 1 ff. and 13 f. on Art. 5a FC; Schweizer/Müller, SGK FC, 2nd ed. 2008, N 15 on Art. 5a FC).

N. 17 Application to communes — systematic interpretation vs. political reality: The scope of Art. 5a FC in the canton–commune relationship is contested. The minority of the Council of States committee took the view that Art. 5a FC should govern only the Confederation–canton relationship (Official Bulletin CR 2002, p. 852). The currently prevailing doctrine follows, however, the NFA Message (BBl 2002 2291, p. 2458) and the majority resolution: Art. 5a FC applies in principle to all three levels of government (Bellanger, CR FC, Art. 5a N 20 ff.; Biaggini, BSK FC, Art. 5a N 10; Schweizer/Müller, SGK FC, Art. 5a N 12 ff.; Walther, Komm. Art. 5a FC, N 26). The design of communal autonomy under Art. 50 para. 1 FC nonetheless remains primarily a matter of cantonal law; many cantonal constitutions have their own subsidiarity articles (Bellanger, CR FC, Art. 5a N 23 f.).

N. 18 Subsidiarity as a rule of interpretation: It is controversial whether Art. 5a FC requires a restrictive interpretation of federal competences. Biaggini, Schweizer/Müller, and Bellanger uniformly deny this (BSK FC, Art. 5a N 13; SGK FC, Art. 5a N 29; CR FC, Art. 5a N 19; likewise Häfelin/Haller/Keller/Thurnherr, N 1075). Würtenberger, by contrast, advocates a stronger use of the subsidiarity principle as a constitutional interpretive principle (Würtenberger, in: Blickle/Hüglin/Wyduckel [eds.], Subsidiarität, 2002, pp. 203 ff.), a position that Ehrenzeller/Ehrenzeller affirm at least to the extent that, for the Swiss context, where competence provisions are susceptible to different interpretations, the interpretation closer to subsidiarity is to be preferred (Ehrenzeller/Ehrenzeller, p. 44).

#6. Practical Notes

N. 19 In the legislative process: Federal Council Messages accompanying draft legislation that newly establishes or expands federal competences must demonstrate compliance with the principle of subsidiarity. To the extent ascertainable, it should be explained why neither concurrent nor framework federal competence suffices and why intercantonal coordination (Art. 48 FC) is inadequate. Government bills that do not satisfy this duty to give reasons are politically vulnerable, even if judicial review is excluded.

N. 20 In administrative practice: Art. 5a FC alone cannot found either a complaint or a substantive claim. A plea of infringement of Art. 5a FC before federal courts and administrative courts is, due to lack of justiciability and lack of subjective rights, almost invariably doomed to fail (cf. Judgment 1C_307/2020 E. 4.2). Art. 5a FC may at most be invoked in a supplementary manner to support the interpretation of a relevant competence provision.

N. 21 Delimitation from other subsidiarity principles: The constitutional principle of subsidiarity in Art. 5a FC must be distinguished from area-specific subsidiarity principles: subsidiarity in social assistance (→ Art. 12 FC, Art. 6 FC), in adult protection (Art. 389 CC), or in international tax law. Those provisions establish autonomous subsidiarity requirements with their own specific conditions and legal consequences, independent of Art. 5a FC.

N. 22 European law and international law context: The principle of subsidiarity in Art. 5a FC has conceptual parallels with the subsidiarity principle in EU law (Art. 5 para. 3 TEU) and in the Preamble to the ECHR. Experience with the EU subsidiarity principle — in particular its limited judicial enforceability — confirms the assessment of the prevailing doctrine that a justiciable effect of a subsidiarity principle concretised by the superior level itself can hardly be expected (Walther, Komm. Art. 5a FC, N 21). The double-majority procedure for constitutional amendments requiring a majority of the cantons (Art. 140 para. 1 lit. a, Art. 142 para. 2 FC) represents the most effective institutional safeguard against unwanted centralisation (Biaggini, BSK FC, Art. 5a N 13; Koller, in: Ehrenzeller et al. [eds.], Der Verfassungsstaat vor neuen Herausforderungen, 1998, p. 682).

Art. 5a Cst. — Subsidiarity

#Case Law

#Political Maxim without Subjective Entitlement

Judgment 1C_307/2020 of 16 June 2021 para. 4.2

The Federal Supreme Court stated regarding the practical effect of Art. 5a Cst.: The appellant does not substantively demonstrate why Art. 5a Cst. was violated. Art. 5a Cst. is a political maxim in the first title of the Constitution, which according to its legislative history and conception relates primarily to the relationship between the various levels of government.

«According to this provision, the principle of subsidiarity must be observed in the allocation and fulfilment of state tasks. Art. 5a Cst. is found in the first title of the Constitution under the general provisions. This is primarily a political maxim. According to its legislative history and conception, the provision relates primarily to the relationship between the various levels of government.»

#Application to Entrepreneurial State Activity

BGE 138 I 378 of 3 July 2012 para. 8.4

The Federal Supreme Court examined the admissibility of a cantonal property insurance institution in the competitive sector and concluded that Art. 5a Cst. is primarily oriented towards federalist distribution of competences. The provision was not qualified as an impediment to the expansion of state economic activity.

The Federal Supreme Court confirmed that Art. 5a Cst. relates primarily to the relationships between the Confederation, cantons and communes, without including private actors in the principle of subsidiarity.

#No Enforceability in Individual Case Review

Judgment B 2025/147 of 3 December 2025 para. 4.4.4

The St. Gallen Administrative Court found that Art. 5a Cst. has no direct application in concrete administrative proceedings. The principle of subsidiarity according to Art. 5a Cst. is not a procedural rule that establishes individual claims or prescribes alternative solutions.

«Art. 5a Cst. is not a procedural principle that prescribes a specific approach in concrete individual cases. The provision is primarily addressed to the legislature in the allocation of tasks between levels of government.»

#Distinction from Other Principles of Subsidiarity

The case law consistently distinguishes between the constitutional principle of subsidiarity in Art. 5a Cst. and other legal principles of subsidiarity:

• Social assistance: BGE 130 I 71 deals with the principle of subsidiarity in social assistance (Art. 12 Cst.), without reference to Art. 5a Cst.
• Adult protection: BGE 140 III 49 discusses subsidiarity according to Art. 389 CC, likewise independently of Art. 5a Cst.
• International tax assistance: BGE 144 II 206 examines subsidiarity in tax law without reference to Art. 5a Cst.

#Summary

The case law on Art. 5a Cst. is extraordinarily thin, which reflects the limited practical significance of the provision. The Federal Supreme Court regards Art. 5a Cst. as a political guideline for the distribution of competences between levels of government, not as a justiciable principle with immediate legal consequences. An independent invocation of Art. 5a Cst. in concrete legal cases is not very promising according to current practice, since the provision does not establish subjective rights.