Art. 64a Cst. gives the Confederation the authority to promote continuing education. This constitutional provision was inserted in 2006 because the Confederation's old competences were insufficient (Hänni, BSK BV, Art. 64a N. 2-3). Continuing education means learning after compulsory school, vocational education and training or university studies.
The Federal Council must establish basic principles for continuing education. It has determined five important principles (Hänni, BSK BV, Art. 64a N. 11): Everyone is personally responsible for their continuing education, quality must be ensured, different educational pathways should be permeable (one can switch from one to another), educational achievements should be credited and everyone should have equal opportunities.
The Confederation may provide financial support for continuing education, but is not obliged to do so. The Continuing Education Act of 2014 (SR 419.1) regulates the areas in which the Confederation provides assistance: basic skills for adults (such as reading and arithmetic), professional continuing education and the training of continuing education teachers (BBl 2013 3729, 3745).
Example: A nurse wants to learn how to give injections. The Confederation can cover part of the course costs if the course meets the legal requirements. However, the nurse has no legal entitlement to this.
Primarily, individuals and employers are responsible for continuing education. The Confederation only provides supplementary assistance (principle of subsidiarity). The cantons may offer their own continuing education programmes, but must observe the federal rules.
Art. 64a Cst. does not create rights for individuals. One cannot go to court and demand continuing education or money for it. The provision only gives the Confederation permission to be active in this area.
N. 1 Art. 64a FC was inserted into the Federal Constitution as part of the Education Constitution of 21 May 2006 (BBl 2005 7273). As the WBK-NR stated in its report, the existing fragmented competences were deemed no longer sufficient (Hänni, BSK BV, Art. 64a N. 2-3). The constitutional legislator wanted to establish uniform promotional competences for all areas of continuing education.
N. 2 The provision replaces Art. 34 para. 1 lit. g aFC, which merely granted the Confederation a specific competence in the field of continuing vocational education. The new constitutional provision was intended to give the Confederation a comprehensive, cross-sectoral competence to promote continuing education (BBl 2013 3729, 3732).
N. 3 The Continuing Education Act (WeBiG) of 20 June 2014 concretises the constitutional requirements. The Dispatch on the WeBiG of 15 May 2013 specifies that the Confederation does not receive comprehensive regulatory competence, but should primarily act in a coordinating and subsidiarily promoting capacity (BBl 2013 3729, 3740).
N. 4 Art. 64a FC is part of the 3rd Section of the Federal Constitution on «Education, Research and Culture». The provision stands in systematic connection with the education framework article (→ Art. 61a FC), vocational education and training (→ Art. 63 FC) and higher education (→ Art. 63a FC).
N. 5 According to Swiss understanding of education, continuing education forms the quaternary education sector, which builds on primary and lower secondary level (compulsory school), upper secondary level (vocational education and training and general education schools) as well as tertiary level (universities and higher vocational education) (SKBF, Education Report Switzerland 2014, p. 245).
N. 6 In relation to cantonal educational competences, the principle of subsidiarity applies (→ Art. 3 FC). Primary responsibility for continuing education lies with individuals and the private sector. The Confederation and cantons assume a subsidiary role (Ehrenzeller, SG Komm. BV, Art. 64a N. 4).
N. 7Principles on continuing education (para. 1): According to its statement on the WBK-NR report, the Federal Council has concretised the obligation to establish principles in the form of five principles (Hänni, BSK BV, Art. 64a N. 11): responsibility, quality, permeability, recognition of educational achievements and equal opportunities.
N. 8Definition of continuing education: The term encompasses «non-formal education» (structured education outside formal education) and «informal learning» (non-structured learning in everyday life). Formal education at upper secondary and tertiary levels does not fall under Art. 64a FC, but under → Art. 63 FC and → Art. 63a FC (Biaggini, Komm. BV, Art. 64a N. 3).
N. 9Promotion (para. 2): The permissive provision grants the Confederation an optional promotional competence. This includes financial contributions, but also non-monetary measures such as coordination, information and quality assurance (BBl 2013 3729, 3745).
N. 10Areas and criteria (para. 3): The law must define the areas eligible for promotion and the promotional criteria. The WeBiG defines the promotional areas in Art. 5 (basic skills of adults, professionally-oriented continuing education, continuing education of continuing education providers) and the promotional criteria in Art. 6.
N. 11 As a competence norm, Art. 64a FC does not establish subjective rights to continuing education or continuing education promotion. The provision has programmatic character and requires concretisation through legislation (Hänni, BSK BV, Art. 64a N. 16).
N. 12 The framework legislative competence (para. 1) obliges the Confederation to enact framework provisions. This obligation was fulfilled with the WeBiG. The promotional competence (para. 2), however, is designed as optional.
N. 13 Art. 64a FC does not impose direct obligations on the cantons. They remain responsible for continuing education within their competences, but must observe federal legal principles (→ Art. 49 FC).
N. 14Scope of federal competence: Ehrenzeller (SG Komm. BV, Art. 64a N. 7) advocates a broad interpretation of promotional competence that also includes structural measures. Biaggini (Komm. BV, Art. 64a N. 5) argues for a more restrictive interpretation limited to financial promotion and coordination.
N. 15Distinction from formal education: The doctrine disagrees on the distinction between continuing education under Art. 64a FC and remedial formal education. Hänni (BSK BV, Art. 64a N. 8) wants to subsume part-time university of applied sciences programmes under Art. 64a FC, while the prevailing doctrine assigns these to → Art. 63a FC.
N. 16Relationship to special statutory continuing education provisions: It is disputed whether Art. 64a FC establishes a comprehensive cross-cutting competence or whether special statutory continuing education provisions (e.g. in vocational education law, unemployment insurance law) retain their independent constitutional basis.
N. 17Applications for promotion: Continuing education promotion under WeBiG requires that it concerns organised education that does not lead to a federal or cantonally regulated qualification. Applicants must observe the promotional areas and criteria according to Arts. 5 and 6 WeBiG.
N. 18Quality assurance: Providers of promoted continuing education must demonstrate a quality assurance system (Art. 7 WeBiG). The requirements are concretised in the Ordinance on Continuing Education (WeBiV).
N. 19Coordination: For continuing education projects with cantonal relevance, early coordination with cantonal education authorities is recommended. The Swiss Conference of Cantonal Ministers of Education (EDK) coordinates intercantonal cooperation.
N. 20Relationship to EU programmes: Swiss continuing education providers may participate in EU education programmes under certain conditions. The participation conditions depend on the respective state of bilateral relations.
There is no case law from the Federal Supreme Court or other highest cantonal courts on Art. 64a Cst. This can be explained by the programmatic character of the provision, which merely empowers the Confederation to promote continuing education without establishing subjective rights or standardising specific legal obligations.
The few court decisions that deal with continuing education issues are based on specific statutory provisions of vocational education law, unemployment insurance law, or cantonal scholarship laws, but not directly on Art. 64a Cst.
Vocational education and continuing education in social insurance law
BGE 122 V 43 of 31 December 1995
Continuing education measures within the framework of unemployment insurance.
Relevance: The Federal Supreme Court clarifies the distinction between continuing education under unemployment insurance law and private continuing education initiatives.
«If an insured person has terminated an employment relationship for the purpose of continuing education without being assured of a new position, the question of suspension of entitlement due to self-inflicted unemployment must be assessed in light of Art. 44 lit. b and c OAIO.»
BGE 111 V 271 of 11 September 1985
Distinction between continuing education under unemployment insurance law and general professional continuing education.
Relevance: Fundamental decision on the distinction between publicly supported and private continuing education.
«Retraining and continuing education under unemployment insurance law must be distinguished from basic and general professional continuing education.»
Continuing education costs as tax-deductible expenses
BGE 113 Ib 114 of 20 February 1987
Tax treatment of continuing education costs.
Relevance: The Federal Supreme Court defines the concept of «continuing education required for professional practice».
«The concept of continuing education required for professional practice must be interpreted restrictively and comprises only those costs that are necessary for maintaining or improving profession-specific knowledge.»
Art. 64a Cst. is designed as a competence provision that enables the Confederation to promote continuing education without establishing individual claims. The absence of case law on this provision reflects its programmatic character and the fact that continuing education issues are primarily decided through specific statutory regulations and not through the Constitution.