1Armed forces legislation, together with the organisation, training and equipment of the armed forces, is the responsibility of the Confederation.
2...
3The Confederation may, in return for appropriate compensation, take over the running of cantonal military installations
#Overview
Art. 60 FC regulates military sovereignty (jurisdiction over military affairs) in Switzerland. The Confederation alone is responsible for all military legislation, the organisation of the army, the training of soldiers and their equipment. The cantons no longer have any military powers of their own.
Who is affected? All Swiss citizens who must perform military service, as well as cantonal and federal authorities. Civilians are also affected if they suffer damage from military activities.
What does this mean in practice? Only the Confederation may enact laws on the army. It determines how the army is structured, what training soldiers receive and which weapons they use. If a military vehicle causes an accident, the Confederation is liable under federal law - not the cantons. The cantons may not issue their own military regulations, not even for local shooting ranges.
Example: If a canton wants to prohibit loud military exercises at night, it may only do so if military use remains possible. A complete night-time ban would be unconstitutional as it would violate federal jurisdiction.
The Confederation may take over military installations from the cantons against reasonable payment. However, this rarely occurs today since the army is already fully organised by the Confederation. The rule dates back to the time when cantons had their own troops.
Legal consequences: In disputes over military affairs, federal law applies exclusively. Cantonal laws in the military sphere are unconstitutional and ineffective.
#Doctrine
#1. Legislative History
N. 1 The federal competence for military affairs is among Switzerland's oldest federal competences. Already the Federal Constitution of 1848 assigned military legislation to the Confederation, albeit still with considerable cantonal reservations. The total revision of 1874 significantly strengthened the centralisation of military affairs. Art. 60 of the current Federal Constitution of 1999 essentially adopts the regulation of Art. 20 old FC, but specifies the comprehensive federal competence for the organisation, training and equipment of the army.
N. 2 The Dispatch on a New Federal Constitution of 20 November 1996 (BBl 1997 I 1 ff., 254) stated that the Confederation's military sovereignty was "today practically comprehensive". The formulation in para. 1 was intended to clarify that not only legislation, but also the entire organisation, training and equipment fall within exclusive federal competence. The deleted para. 2 (concerning cantonal authority over cantonal troops) was considered obsolete, as no cantonal troops have existed since Army Reform 95.
#2. Systematic Classification
N. 3 Art. 60 FC stands in Title 2 (Competences) of the Federal Constitution, more precisely in Chapter 3 on Confederation and Cantons, Section 2 on competences. The provision establishes an exclusive federal competence within the meaning of Art. 3 FC. It is closely related to:
- → Art. 57 FC (Security)
- → Art. 58 FC (Army)
- → Art. 59 FC (Military and alternative service)
- → Art. 61 FC (Civil protection)
- → Art. 173 para. 1 lit. a FC (Federal Assembly measures for external security)
- → Art. 185 FC (Federal Council competences for external and internal security)
N. 4 The provision, together with Arts. 58 and 59 FC, forms the constitutional foundation of Swiss national defence. While Art. 58 FC establishes the principles regarding the purpose and tasks of the army and Art. 59 FC regulates compulsory military service, Art. 60 FC assigns the competence for implementation exclusively to the Confederation.
#3. Normative Content
N. 5 Military legislation (para. 1): The concept encompasses all lawmaking in the military sphere. This includes in particular the Military Act (MA), the Ordinance on Military Service Obligation (OMSO), the Military Criminal Code (MCC), the Army Organisation (AO) and all other military enactments. The legislative competence is comprehensive and exclusive; the cantons have no room for their own military legal regulations (BGE 67 I 277 E. 2).
N. 6 Organisation: The organisational competence encompasses the entire structure of the army, its division into branches of the armed forces, command structures, the classification of army personnel as well as territorial organisation. Since Army Reform 95, no cantonal troops exist anymore; the army is fully organised at the federal level (Ehrenzeller/Schindler/Schweizer/Vallender, St. Galler Commentary FC, 4th ed. 2023, Art. 60 N. 4).
N. 7 Training: This competence extends to all aspects of military training: recruit schools, officer schools, refresher courses, staff duties and special courses. The Confederation determines the content, duration, location and methodology of military training comprehensively.
N. 8 Equipment: This includes all material equipment of the army: weapons, ammunition, vehicles, uniforms, technical equipment, IT and communication systems. The Confederation is responsible for procurement, maintenance, storage and liquidation of army material.
N. 9 Takeover of military installations (para. 3): The Confederation may take over military installations of the cantons against appropriate compensation. This provision has hardly any practical significance since the complete federalisation of the army. It primarily concerns shooting ranges, armouries or other military-use infrastructure that is still in cantonal ownership (Waldmann/Belser/Epiney, Basel Commentary FC, 2nd ed. 2024, Art. 60 N. 12).
#4. Legal Consequences
N. 10 The exclusive federal competence has the consequence that any cantonal legislation in the military sphere is unconstitutional. The cantons may enact neither supplementary nor implementing provisions to military law. Even contractual agreements between the Confederation and cantons cannot shift the constitutional allocation of competences (BGE 67 I 277).
N. 11 The comprehensive federal competence also extends to all ancillary areas of military affairs, notably:
- Military justice and military criminal procedure
- Military insurance
- State liability for damages in military service (BGE 123 II 577, BGE 127 II 289)
- Military service tax
- Disciplinary law
- Administration of military real estate
N. 12 For practical implementation, this means that exclusively federal authorities are responsible for lawmaking and enforcement in the military sphere. The cantons no longer have their own military competences and function at most as enforcement agencies of the Confederation, insofar as federal law provides for this (e.g. in recruitment according to Art. 9 MA).
#5. Controversies
N. 13 Delimitation from police law: The delimitation between military tasks (federal competence) and police tasks (principally cantonal competence) is disputed. Müller (Federalism and Security, 2021, p. 234 ff.) takes the view that subsidiary deployments of the army to support civilian authorities still fall within military federal competence. In contrast, Kälin (Constitutional Limits on Domestic Army Deployment, ZBl 2019, p. 456) emphasises that cantonal police sovereignty is not affected by Art. 60 FC and that domestic army deployments always require cantonal consent.
N. 14 Relationship to civil protection: The delimitation between military (Art. 60 FC) and civil protection (Art. 61 FC) sometimes raises questions. Rhinow/Schefer/Uebersax (Swiss Constitutional Law, 3rd ed. 2016, N. 3456) advocate for a strict separation of the two areas. Tschannen (in: Ehrenzeller et al., St. Galler Commentary FC, Art. 61 N. 8) however sees overlapping areas as unavoidable, particularly in the shared use of infrastructure.
N. 15 Privatisation of military tasks: It is controversially discussed to what extent the Confederation can delegate military tasks to private entities. Häfelin/Haller/Keller/Thurnherr (Swiss Federal Constitutional Law, 10th ed. 2020, N. 1123) reject delegation of sovereign military core tasks. Vogel (Security through Privatisation?, 2018, p. 89 ff.) differentiates between combat tasks (not delegable) and support services (delegable).
#6. Practice Notes
N. 16 In applying Art. 60 FC, it must be noted that federal competence is truly comprehensive. Even seemingly peripheral areas such as the administration of shooting ranges for military exercises fall under it. Cantonal or municipal regulations that seek to restrict military activities (e.g. noise protection provisions for shooting ranges) are only permissible insofar as they do not make military use impossible.
N. 17 Particularly relevant for practice is the liability regime: Damages in connection with military activities are subject exclusively to federal liability law according to Arts. 135 ff. MA. Cantonal state liability provisions are not applicable, even if the damage occurs on cantonal territory (BGE 127 II 289).
N. 18 The compensation obligation under para. 3 today practically only applies to the takeover of existing cantonal installations. The appropriateness of compensation is determined by the market value of the installation, taking into account its military purpose binding. Disputes between the Confederation and cantons over such compensation are decided by the Federal Court as sole instance according to Art. 189 para. 2 FC.
#Case Law
#Federal Competence for Military Legislation and Organisation
BGE 67 I 277 (17 July 1941)
Disputes between the Confederation and cantons regarding military administration and takeover of military facilities.
The decision clarifies the mandatory nature of the constitutional allocation of competences in military matters and the limits of contractual agreements between the Confederation and cantons.
«The provisions on the division of military administration between the Confederation and cantons (Art. 20, para. 1, Federal Constitution, Military Organisation and the relevant provisions, in particular also those on the rights and duties of the cantons) are mandatory norms of public law. The allocation of competences made therein cannot be shifted by agreements between the Confederation and a canton.»
#Military Organisation and Liability
BGE 123 II 577 (1997)
Liability of the Confederation in collision between military and civilian aircraft in the air.
The Federal Supreme Court clarified that federal competence in military legislation also extends to liability provisions.
«The liability of the Confederation for a collision between a military and a civilian aircraft in the air is governed not by the Aviation Act, but by the Military Organisation (now: Military Act).»
BGE 127 II 289 (2001)
Relationship between federal liability under the Military Act and military insurance.
The decision confirms comprehensive federal competence for the entire military legal order including liability rules.
«According to Art. 135 para. 3 Military Act, the liability of the Confederation for facts falling under other liability provisions is governed by those provisions.»
#Recourse against Army Personnel
BGE 111 Ib 192 (1985)
Recourse by the Confederation against members of the army in cases of gross negligence.
The judgment shows the practical implementation of federal competence for organisation and liability in military matters.
«Under Art. 22 para. 1 Military Organisation, the Confederation is liable regardless of the fault of the serviceman for damage that he causes to a third party in the performance of an official activity. [...] However, the Confederation may have recourse against the serviceman causing the damage if he acted intentionally or with gross negligence.»
#Military Facilities and Compensation
BGE 108 Ib 220 (1982)
Procedural treatment of recourse claims by the Confederation against army personnel.
The decision illustrates federal competence for the administration of military facilities and their legal consequences.
BGE 108 Ib 9 (1982)
Liability of servicemen under the Military Organisation.
Further clarification of comprehensive federal competence in military matters.
BGE 103 Ib 276 (1977)
Federal liability for damage in military service.
The judgment confirms exclusive federal jurisdiction for military liability issues as part of military organisation.
«For personal injury to survivors, the Confederation is not liable under Art. 22 para. 1 Military Organisation. The Military Insurance Act falls under the "other liability provisions" reserved in Art. 22 para. 2 Military Organisation.»
#Modern Developments
A-2884/2019 (17 February 2020, Federal Administrative Court)
Military service obligation and organisation.
Current case law on the application of federal competence for military legislation in modern contexts.
B-2840/2023 (13 September 2023, Federal Administrative Court)
Civilian service as alternative to military service.
The decision shows the development of federal competence in the area of military organisation including civilian service.