#1. Genesis

N. 1 The federal statistical competence dates back to the 19th century. The Federal Constitution of 1874 already contained in Art. 34bis the federal power «to order all statistical surveys aimed at promoting the general welfare». The current version of Art. 65 BV was adopted in the framework of the total revision of 1999 without material changes (BBl 1997 I 309). The Federal Council's message emphasizes the importance of reliable statistical foundations for policy-making and democratic decision-making (BBl 1997 I 309 f.).

N. 2 Paragraph 2 was inserted based on findings from the 1990 census. The traditional full survey was to be replaced by the use of existing registers, which significantly reduces the survey burden on citizens (BBl 1997 I 310). This register harmonization was implemented through the Register Harmonization Act (RHG) of 23 June 2006.

#2. Systematic Classification

N. 3 Art. 65 BV is found in Title 3 on the Confederation, Cantons and Communes, in Chapter 3 on Financial and Economic System. This placement underscores statistics' cross-connection to all state functions. The provision is closely related to:

• → Art. 5 BV (principle of the rule of law): statistics as a basis for state action
• → Art. 13 BV (data protection): tension between data collection and privacy protection
• → Art. 57 BV (security): statistics as a basis for security policy
• → Art. 108 BV (promotion of housing construction and home ownership): statistics as a planning basis

N. 4 The provision is a pure competence norm without fundamental rights character. It establishes neither subjective rights of citizens nor duties of cantons to maintain their own statistics (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3654).

#3. Elements of the Offence / Normative Content

N. 5 «Necessary statistical data» (para. 1): The concept of necessity gives the Confederation wide discretion. The public interest in the respective survey is decisive (Ehrenzeller/Mastronardi/Schweizer/Vallender, St. Galler Kommentar BV, 4th ed. 2023, Art. 65 N 4). Necessity must be interpreted in light of proportionality.

N. 6 The catalogue of survey areas («population, economy, society, education, research, territory and environment») is exemplary, not exhaustive. This follows from the wording «on the condition and development of», which allows for dynamic interpretation.

N. 7 «Harmonization and maintenance of official registers» (para. 2): This competence is optional («may»). It aims to avoid multiple surveys and efficiently use existing data holdings. Harmonization primarily concerns technical standards and definitions, not the content of the registers themselves (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1234a).

#4. Legal Consequences

N. 8 The competence norm empowers the Confederation to enact legal provisions on statistical surveys. This competence was exercised through the Federal Statistics Act (BStatG) of 9 October 1992. The Confederation may establish obligations to provide information and attach criminal penalties (Art. 66 BStatG).

N. 9 Art. 65 BV creates no direct obligations for cantons and private parties. These only arise from implementing legislation. Cantons are obliged to cooperate in federal surveys insofar as the BStatG provides for this (Berner Kommentar BV-Waldmann, Art. 65 N 15).

N. 10 Data collected may only be used for statistical purposes. Statistical confidentiality according to Art. 14 BStatG prevents misuse for administrative or criminal proceedings (→ Art. 13 BV).

#5. Disputes

N. 11 Scope of federal competence: It is disputed whether Art. 65 BV grants comprehensive or only federal task-related statistical competence. The prevailing doctrine advocates a broad interpretation, as reliable statistics are required for all levels of government (Ehrenzeller et al., St. Galler Kommentar BV, Art. 65 N 3).

N. 12 Relationship to data protection: The tension between comprehensive statistical surveys and privacy protection is controversially discussed. Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, p. 234) emphasize the priority of data protection, while Rhinow/Schefer/Uebersax (N 3656) advocate for case-by-case balancing. The Federal Supreme Court specified data protection limitations in BGE 1C_425/2020.

N. 13 Use of the AHV number: The use of the AHV insured person number as a personal identifier in statistics is disputed. Proponents see it as an efficient means for register harmonization (Federal Council's message on the RHG, BBl 2004 4995), critics warn of the transparent citizen (Rudin, Datenschutz in der amtlichen Statistik, 2021, pp. 156 ff.).

#6. Practice Notes

N. 14 When planning statistical surveys, it should be examined early whether existing registers can be used. The Register Harmonization Act and the associated ordinance define technical standards for data exchange.

N. 15 The obligation to provide information under the BStatG can be enforced with regulatory fines up to CHF 10,000. In practice, however, cooperative approaches and emphasizing benefits for respondents lead to higher response rates.

N. 16 For the use of statistical data in court proceedings: The FSO's wage structure survey is decisive for disability assessments (BGE 150 V 67). Other statistical sources are only to be used subsidiarily. The most current published data must be used.

#Data Protection in Statistical Surveys

BGer 1C_425/2020 of 28 February 2022

The Federal Supreme Court clarified the data protection obligations of the Federal Statistical Office when processing personal data. The AHV number as a unique personal identifier enables the attribution of archived sample data to specific persons. Complete anonymisation is not present if a link to personal designations remains possible via the AHV number.

«The AHV number thus allows the unambiguous attribution of information to a concrete person. Conversely, a set of information that contains the AHV number can be unambiguously attributed to a concrete person.»

#Principle of Transparency and Access to Statistical Documents

BVGer A-4708/2022 of 29 February 2024

The Federal Administrative Court dealt with the application of the Freedom of Information Act to documents of the Business and Enterprise Register (BUR). The distinction between publicly accessible official documents and statistical special provisions in the maintenance of registers was clarified. The FSO can invoke special statutory confidentiality provisions.

Case law on Art. 65 FC is sparse, as disputes mainly concern the implementation level (Federal Statistics Act, Data Protection Act) and rarely challenge the constitutional competence basis itself.

#Use of Statistical Data in Other Proceedings

BGE 150 V 67 of 6 March 2024

The Federal Supreme Court confirmed the practice of disability insurance to rely on the Swiss Wage Structure Survey (WSS) published by the Federal Statistical Office for income determination. The statistical foundations of the FSO have binding character for jurisprudence in social insurance cases.

«In temporal terms, the most current published data must be used in the context of income comparison related to the commencement of the pension.»

BGE 124 V 321 of 1 January 1998

Establishment of the FSO's Wage Structure Survey as the authoritative statistical basis for disability assessments in social insurance. The data collected by the FSO thus obtains indirect legal effect in individual proceedings.

#Register Harmonisation in Practice

The case law of cantonal administrative courts shows that the harmonisation of official registers according to Art. 65 para. 2 FC has practical significance for registration procedures and civil status registers, without the constitutional provision itself being disputed.