#1. Legislative History
N. 1 Art. 67 Cst. was newly created as part of the total revision of the Federal Constitution in 1999. The Federal Council's dispatch of 20 November 1996 emphasises that the Confederation should only act in a supplementary capacity to cantonal measures in extra-curricular work with children and young people: The Confederation only acts subsidiarily (BBl 1997 I 284). This provision establishes for the first time at constitutional level an explicit cross-cutting task for the special consideration of children and young people (para. 1) as well as a subsidiary federal competence for extra-curricular youth work (para. 2).
N. 2 The norm arose in the context of international developments, particularly the UN Convention on the Rights of the Child of 1989, which Switzerland ratified in 1997. It is closely related to the simultaneously created fundamental rights guarantee of Art. 11 Cst. (protection of children and young people) and the social objective of Art. 41 para. 1 lit. g Cst.
#2. Systematic Classification
N. 3 Art. 67 Cst. is classified in Chapter 3 (Social objectives, education and culture) of Title 2 (Fundamental rights, citizenship rights and social objectives). The norm has connections to several constitutional provisions:
- → Art. 11 Cst. (substantive fundamental rights protection)
- → Art. 41 para. 1 lit. f and g Cst. (social objectives concerning children and young people)
- ↔ Art. 19 Cst. (entitlement to basic education)
- → Art. 62 Cst. (education as cantonal competence)
- → Art. 5a Cst. (principle of subsidiarity)
N. 4 The systematic position clarifies that Art. 67 Cst. does not constitute a fundamental rights guarantee, but rather a competence and programme provision. It creates neither subjective rights nor justiciable claims (BGE 126 II 377 E. 5.4; BVGE 2015/33 E. 3.4).
#3. Elements of the Offence / Normative Content
N. 5 Paragraph 1 establishes a cross-cutting task: the Confederation and cantons must take account of the particular requirements of children and young people for encouragement and protection in all their activities. This obligation applies comprehensively to all state activities, from legislation through legal application to factual administrative activity.
N. 6 The term «children and young people» encompasses persons up to the age of 18, in accordance with Art. 1 of the UN Convention on the Rights of the Child. The «particular requirements for encouragement and protection» arise from the developmental vulnerability and special potential of this age group.
N. 7 Paragraph 2 grants the Confederation competence to support extra-curricular work with children and young people. The term «extra-curricular work» encompasses organised and open youth work, leisure activities, cultural and sporting opportunities as well as preventive and integrative measures outside the formal education system.
N. 8 The formulation «may [...] support» makes clear that this is a discretionary competence. The Confederation is not obliged, but merely empowered, to act. Support is provided primarily through financial assistance, but may also include coordination, information and quality development.
#4. Legal Consequences
N. 9 From Art. 67 para. 1 Cst. follows an objective legal obligation of consideration for all state organs. These must include the interests of children and young people as an important factor in their decisions. In weighing interests, particular weight must be given to the welfare of the child (BGE 146 III 313 E. 5.5.3).
N. 10 Art. 67 para. 2 Cst. legitimises federal acts in the field of extra-curricular youth work, notably the Child and Youth Promotion Act (CYPA, SR 446.1). However, the provision does not create any entitlement by private parties to federal support (BVGE 2015/33 E. 4.1).
N. 11 Federal competence is limited by the principle of subsidiarity (Art. 5a Cst.): primarily the cantons and communes are responsible for youth promotion. The Confederation only acts when this is necessary to achieve the objectives or exceeds the resources of the cantons (Art. 43a para. 1 Cst.).
#5. Disputed Issues
N. 12 Scope of federal competence: There is academic dispute about how far federal competence under Art. 67 para. 2 Cst. extends. Some commentators take the view that the Confederation has a prerogative of assessment as to when and how a «supplement» is appropriate, whereby federal competence essentially becomes an unrestricted parallel competence. Aubert/Mahon (Petit commentaire, Art. 67 N. 8) and Gerber Jenni (SG-Komm. BV, Art. 67 N. 14) agree with this interpretation. Biaggini (Komm. BV, Art. 67 N. 3) takes a different view and places greater emphasis on the constitutional limits of federal competence.
N. 13 Justiciability of the cross-cutting clause: There is disagreement about the extent to which Art. 67 para. 1 Cst. is justiciable. While case law treats the norm primarily as a programme provision, parts of the academic literature call for stronger judicial enforceability of the obligation of consideration, particularly in cases of serious impairment of children's interests (Wyttenbach, in: Schweizerische Kinder- und Jugendpolitik, 2001, pp. 45 ff.).
N. 14 Relationship to Art. 11 Cst.: The relationship between the cross-cutting clause of Art. 67 para. 1 Cst. and the fundamental right of Art. 11 Cst. is not conclusively clarified. While Art. 11 Cst. creates subjective rights, Art. 67 Cst. remains in the realm of objective legal obligations. The delimitation is relevant for the question of standing to appeal.
#6. Practice Notes
N. 15 In legislation and legal application, a child and youth impact assessment must be conducted. State measures must be examined as to whether and how they affect the interests of children and young people. This applies particularly to areas such as spatial planning, transport, environmental protection and social insurance.
N. 16 Federal financial assistance under the CYPA consists of discretionary subsidies without legal entitlement. Practice shows that innovative, time-limited pilot projects are given priority support (Judgment B-6244/2020). Regular operating contributions are excluded. Applicants must substantiate the national significance and innovative character of their projects.
N. 17 In child protection measures, Art. 67 para. 1 Cst. is to be used as an interpretative aid. The obligation of consideration reinforces the civil law principle of the child's welfare and can be decisive in the exercise of discretion (BGE 146 III 313).
N. 18 In immigration law, Art. 67 Cst. in conjunction with Art. 11 Cst. may justify a hardship permit in cases of long-term residence by children and young people. Rootedness in Switzerland and educational biography are to be given particular weight (BGE 126 II 377).