#Legislative History

N. 1 The current version of Art. 64 Federal Constitution dates back to the total revision of the Federal Constitution of 1999. The provision continued the previous research funding competence of the Confederation (Art. 27sexies old Federal Constitution of 1973) and explicitly extended it to include innovation promotion. The Federal Council Message of 20 November 1996 stated that the constitutional provision «grants the Confederation comprehensive competence to promote scientific research» (Federal Gazette 1997 I 1, 241). The constitutional legislator thereby sought to constitutionally secure the existing practice of federal research funding while simultaneously paving the way for enhanced innovation promotion.

N. 2 The explicit inclusion of «innovation» alongside «scientific research» in para. 1 was a deliberate expansion. While the old constitution only spoke of «scientific research», the constitutional legislator in 1999 recognised the growing importance of knowledge and technology transfer for economic development (Federal Gazette 1997 I 241). This expansion later enabled the creation of the Commission for Technology and Innovation (CTI) and its successor organisation Innosuisse.

#Systematic Classification

N. 3 Art. 64 Federal Constitution is systematically classified in Section 3 «Education, Research and Culture» of Chapter 3 of the Federal Constitution. The provision is closely connected with → Art. 20 Federal Constitution (academic freedom), which regulates the fundamental rights dimension of research. While Art. 20 Federal Constitution protects the defensive rights of researchers, Art. 64 Federal Constitution establishes the performance obligations of the state.

N. 4 The research funding competence complements the educational competences of the Confederation (→ Art. 63 Federal Constitution for vocational education and training, → Art. 63a Federal Constitution for higher education institutions). Unlike higher education institutions, where the Confederation and cantons share responsibility, Art. 64 Federal Constitution grants the Confederation comprehensive competence for research funding. This extends to all fields of science and is not limited to federal higher education institutions.

N. 5 In the context of the economic constitution, Art. 64 Federal Constitution forms an important basis for state innovation promotion. The provision must be distinguished from → Art. 94 Federal Constitution (principles of the economic order), whereby innovation promotion is to be regarded as a specific, constitutionally legitimate form of economic promotion.

#Elements of the Offence / Normative Content

#Scientific Research (Para. 1)

N. 6 The term «scientific research» is to be understood broadly. According to prevailing doctrine, it encompasses both basic research and applied research in all scientific disciplines (König, Grundlagen der staatlichen Forschungsförderung, 2007, p. 45). The adjective «scientific» is disputed: while Borghi understands it only as a reference to objective-methodological aspects, Gruber sees it as a quality concept.

N. 7 According to the Confederation's practice, research funding encompasses both institutional funding (financing of research institutions) and project-based funding (financing of individual research projects). The Swiss National Science Foundation (SNSF) and the Swiss Academies of Arts and Sciences are the main providers of research funding (Art. 4 RIPA).

#Innovation (Para. 1)

N. 8 The innovation concept was deliberately formulated openly. According to the Federal Council Message, it encompasses «the implementation of new scientific findings into marketable products and services» (Federal Gazette 1997 I 241). Innovation promotion by Innosuisse focuses on knowledge and technology transfer between higher education institutions and the economy (Art. 3 SERI Act).

N. 9 Innovation promotion must have a connection to scientific research. Pure economic promotion without research connection does not fall under Art. 64 Federal Constitution, but possibly under other constitutional bases such as → Art. 103 Federal Constitution (structural policy). This distinction is often difficult in practice and has been the subject of various parliamentary initiatives.

#Obligation to Promote (Para. 1)

N. 10 The term «promotes» establishes a state objective with programmatic character. Unlike subjective fundamental rights, Art. 64 para. 1 Federal Constitution does not grant an individual claim to research funding (Schmid, Wissenschaft und Forschung, 2011, p. 485). The Confederation has considerable discretion in designing the promotion.

N. 11 The obligation to promote is a permanent task of the Confederation. It can be fulfilled through direct federal promotion or through delegation to public law institutions such as the SNSF. The Confederation's annual research expenditure amounts to several billion francs and is determined in the multi-annual Federal Council Message on the Promotion of Education, Research and Innovation (ERI Message).

#Quality Assurance and Coordination (Para. 2)

N. 12 Para. 2 empowers the Confederation to make promotion conditional. «Quality assurance» refers primarily to the scientific quality of funded research. In practice, this is ensured through peer review procedures and evaluations (Art. 51 RIPA).

N. 13 «Coordination» aims at efficient use of research funds and avoiding duplication. The Confederation can set priorities and promote cooperation between research institutions. The Swiss Conference of Higher Education Institutions plays an important role in this regard (Art. 6 HEdA).

#Research Institutions (Para. 3)

N. 14 Para. 3 gives the Confederation three options for action: it can «establish», «take over» or «operate» research institutions. This competence has been used for the ETH Domain institutions (Paul Scherrer Institute, WSL, Empa, Eawag) as well as for other federal research institutions.

N. 15 The competence is optional («may»). The Confederation is not obliged to operate its own research institutions, but can also support research exclusively through third-party funding. In practice, the Confederation combines both funding instruments.

#Legal Consequences

N. 16 Art. 64 Federal Constitution establishes comprehensive federal competence that encompasses both legislation and implementation. The most important implementing acts are the Federal Act on the Promotion of Research and Innovation (RIPA), the Federal Institutes of Technology Act and the SERI Act.

N. 17 Art. 64 Federal Constitution does not create a direct financial obligation in a specific amount. The determination of research funds is the responsibility of Parliament in the framework of the budget process and the ERI Messages. The Federal Supreme Court has repeatedly held that there is no individual claim to research funding (BGE 133 V 297 consid. 4).

N. 18 The delegation of research funding to public law institutions such as the SNSF is permissible, provided the principles of equality before the law and proportionality are maintained. Funding decisions are subject to administrative court review, whereby wide scope is given to scientific discretion.

#Points of Contention

N. 19 Scope of the concept of scientificity: In doctrine, it is disputed how narrowly the term «scientific» in para. 1 is to be understood. Borghi advocates a broad interpretation and sees it merely as a reference to objective-methodological standards. Gruber, on the other hand, interprets «scientific» as a quality criterion that excludes dubious research from funding. König takes a mediating position and emphasises that all recognised scientific methods are covered (König, Grundlagen, 2007, p. 47).

N. 20 Relationship between research and innovation promotion: The tension between purpose-free basic research and application-oriented innovation is controversially discussed. While one view emphasises the equal status of both promotional aspects, others see in the increasing innovation orientation a problematic economisation of science. Schmid warns against excessive instrumentalisation of research for economic purposes (Schmid, Wissenschaft und Forschung, 2011, p. 488).

N. 21 Limits of quality assurance: It is disputed how far quality assurance according to para. 2 may go without violating academic freedom (→ Art. 20 Federal Constitution). Prevailing doctrine considers peer review procedures permissible as long as they are designed transparently and fairly. Critical voices warn of a «mainstream bias» in research funding.

#Practical Guidelines

N. 22 For researchers, it is crucial that Art. 64 Federal Constitution does not establish an individual legal claim to funding. Negative funding decisions can only be reviewed for legal violations, not for the scientific assessment. The Federal Administrative Court exercises great restraint when reviewing scientific evaluations.

N. 23 When designing funding instruments, the legislator must observe the requirements of para. 2. New funding programmes should provide for mechanisms for quality assurance (e.g. external review) and coordination with existing programmes. Practice shows that well-coordinated programmes have higher success rates.

N. 24 For cantonal higher education institutions and research institutions, it is relevant that Art. 64 Federal Constitution establishes comprehensive federal competence. Unlike in the higher education sector (→ Art. 63a Federal Constitution), there is no constitutional obligation to cooperate with the cantons. In practice, however, research funding takes place in dialogue with the cantonal higher education providers.

N. 25 Companies promoting innovation should note that Innosuisse projects must have a substantial research component. Pure development projects without research character do not fall under Art. 64 Federal Constitution and therefore cannot be funded through Innosuisse. The distinction from regular economic promotion is often challenging and should be clarified early with the funding agencies.

#Preliminary Remark

The case law on Art. 64 Cst. is extremely sparse. The Federal Supreme Court has only rarely dealt with the constitutional provision on the promotion of research and innovation, as most disputes in this area are settled at the administrative law level concerning specific statutory provisions or administrative acts of funding organisations (SNSF, Innosuisse).

#Funding Organisations and Social Insurance Law

BGE 133 V 297 E. 4 of 2 May 2007

The Federal Supreme Court qualified grants from the Swiss National Science Foundation for the promotion of scientific research as non-contributory benefits under social insurance law. The decision shows the practical implementation of research funding by the SNSF as the Confederation's central funding organisation, without however examining in depth the constitutional foundations under Art. 64 Cst.

«The grants paid to researchers by the National Foundation, whether they are designated as scholarships or research contributions and whether or not they include a personal contribution to living expenses, do not constitute contributory earned income.»

#Administrative Case Law

The remaining case law on research and innovation is limited to administrative decisions of the Federal Administrative Court concerning individual decisions by funding organisations:

Decisions of the Federal Administrative Court on the SNSF: Numerous judgments of the FAC (inter alia B-18/2006, B-4569/2009, B-695/2017) deal with appeals against funding decisions by the Swiss National Science Foundation, without however raising fundamental constitutional questions under Art. 64 Cst.

Decisions on Innosuisse: Several judgments (inter alia B-4357/2022, B-4982/2024) concern appeals against innovation funding decisions by the Swiss Agency for Innovation Promotion, but focus on administrative procedural questions.

#Distinction from Academic Freedom and Freedom of Teaching

The constitutional discussion on scientific activity takes place primarily under Art. 20 Cst. (academic freedom). Art. 64 Cst. as a competence norm for the promotion of research and innovation has not yet been fundamentally interpreted by the Federal Supreme Court, as corresponding disputes rarely reach the highest court.

#Conclusion

The sparse case law on Art. 64 Cst. reflects the character of this constitutional provision as a programmatic competence norm. The practical implementation of research and innovation promotion takes place through special legislation and its enforcement by the corresponding federal bodies and institutions, whereby disputes usually move at the administrative law level and only exceptionally raise fundamental constitutional questions.