1Bund und Kantone fördern die musikalische Bildung, insbesondere von Kindern und Jugendlichen.
2Sie setzen sich im Rahmen ihrer Zuständigkeiten für einen hochwertigen Musikunterricht an Schulen ein. Erreichen die Kantone auf dem Koordinationsweg keine Harmonisierung der Ziele des Musikunterrichts an Schulen, so erlässt der Bund die notwendigen Vorschriften.
3Der Bund legt unter Mitwirkung der Kantone Grundsätze fest für den Zugang der Jugend zum Musizieren und die Förderung musikalisch Begabter.
Art. 67a BV obliges the Confederation and the cantons to promote the musical education of children and young people. The provision arose from the popular initiative «youth + music», which was submitted on 18 December 2008 (BBl 2009 613). The counter-proposal adopted by both chambers was accepted on 23 September 2012 by the people and the cantons with 72.7% yes votes (BBl 2012 9991).
The constitutional provision is structured in three areas: First, the Confederation and the cantons jointly promote musical education, especially of children and young people. Second, they work towards high-quality music teaching in schools. Third, the Confederation establishes principles for young people's access to music-making and the promotion of talent.
However, the article does not create direct legal entitlements, but is conceived as a programmatic norm (state objective without justiciable rights) (Judgment B-3536/2016 of 20 January 2017). Its implementation occurs through laws and ordinances. The Confederation is only responsible for extracurricular projects, while the cantons remain responsible for music teaching in schools (Hänni, BSK BV, Art. 67a N. 7).
A practical example is the federal programme «Youth and Music», which enables children and young people between 6 and 20 years to pursue extracurricular musical activities. Projects that take place primarily in school lessons do not fall under federal jurisdiction. Thus, the Federal Administrative Court rejected funding for a school choir project in 2017, as the four-month preparation took place in regular lessons (B-3536/2016).
The promotion takes place through the Cultural Promotion Act (Art. 12 KFG) and the Child and Youth Promotion Act (Art. 7 para. 2 KJFG). These laws concretise the constitutional requirements and create the legal foundations for the practical implementation of musical education promotion.
N. 1 The anchoring of musical education in the Federal Constitution goes back to the popular initiative «youth + music», which was submitted on 18 December 2008 with 154,095 valid signatures (FO 2009 613). While the Federal Council acknowledged the social significance of musical education, it nevertheless rejected the initiative (Hänni, BSK FC, Art. 67a N. 1). While the National Council voted for acceptance of the popular initiative, it did not find a majority in the Council of States (Hänni, BSK FC, Art. 67a N. 1).
N. 2 The majority of the Council of States commission had spoken in favour of a counter-proposal that provided for promotion of music while taking into account cantonal competencies (Hänni, BSK FC, Art. 67a N. 1). This direct counter-proposal was finally adopted by both chambers (FO 2010 5389). The initiators then withdrew their initiative in favour of the counter-proposal. On 23 September 2012, the people and cantons accepted the counter-proposal with 72.7% yes votes and the approval of all cantons (FO 2012 9991).
N. 3 Art. 67a FC stands in the 3rd section of the Federal Constitution on «Education, Research and Culture». The provision complements the Swiss education area (Art. 61a ff. FC) and cultural promotion (Art. 69 FC) with a specific aspect. It forms a hinge between the education and culture areas, with the educational aspect in the foreground (Hänni, BSK FC, Art. 67a N. 2).
N. 4 The systematic proximity to Art. 62 FC (school system) is central to understanding the allocation of powers. While Art. 62 FC assigns the cantons primary competence for the school system, Art. 67a para. 2 FC partially breaks through this order by transferring a joint task in the area of school musical education to the Confederation and cantons. The cross-references to → Art. 63a para. 5 FC (vocational education and training) and → Art. 67 para. 2 FC (promotion of youth) show the interconnection with other promotion areas.
N. 5 Art. 67a FC contains three different regulatory contents:
Paragraph 1 establishes a general promotion obligation of the Confederation and cantons for musical education, particularly of children and young people. The term «musical education» encompasses both practical performance (instrumental instruction, singing) and theoretical teaching (music history, music theory). The working group of the FDHA/FOC takes the view that the Confederation could in future also promote musical education in the school area by financially supporting corresponding measures by the cantons (Hänni, BSK FC, Art. 67a N. 5).
Paragraph 2 obliges the Confederation and cantons to work for high-quality music instruction in schools. This provision does not break through cantonal school sovereignty according to Art. 62 FC, but rather establishes an obligation to cooperate (Hänni, BSK FC, Art. 67a N. 7).
Paragraph 3 assigns the Confederation the power to lay down principles for youth access to music-making and the promotion of the musically gifted. This federal competence is limited to the extracurricular area (Hänni, BSK FC, Art. 67a N. 9).
N. 6 Art. 67a FC is conceived as a programmatic provision and does not establish direct subjective rights. The promotion obligation of the Confederation and cantons requires legislative specification. In federal law, implementation took place through the revision of the Cultural Promotion Act (Art. 12 CPA) and the Child and Youth Promotion Act (Art. 7 para. 2 CYPA).
N. 7 The allocation of powers results from the systematics of the provision: The cantons remain responsible for school music instruction (Art. 62 FC), while the Confederation can issue principles in the extracurricular area (para. 3). Cooperation according to paras. 1 and 2 takes place within the framework of existing competencies.
N. 8 The scope of federal competencies is disputed. The EDK emphasises in its position of 21 June 2012 the continued cantonal school sovereignty and warns against a creeping transfer of competencies. The IG youth and music, on the other hand, argues for an active role of the Confederation also in the school area through financial support and quality standards.
N. 9 The scope of the promotion obligation is also controversially discussed. While the Federal Council's message (FO 2009 613) assumes an optimisation obligation within the framework of available means, parts of the doctrine demand a more binding interpretation with concrete minimum standards for music instruction.
N. 10 Promotion applications in the extracurricular area are to be directed to the Federal Office of Culture. The distinction between school and extracurricular projects must be strictly observed: projects that mainly take place during school hours or in school premises do not fall within federal competence (B-3536/2016).
N. 11 The programme «Youth and Music» according to Art. 12 CPA is open to children and young people between 6 and 20 years of age. Leader training is subject to special admission criteria (BVGE 2017 IV/5). Cantons and municipalities may take supplementary promotion measures, but must observe federal legal requirements in doing so.
Case law on Art. 67a FC is still sparse, as the provision only entered into force in 2012 and is predominantly programmatic in nature. The existing decisions deal mainly with the demarcation between school and extra-curricular promotion as well as with procedural questions in connection with promotion grants.
#Demarcation between school and extra-curricular promotion
B-3536/2016 (FCAT) of 20 January 2017
Rejection of federal grants for a music project that took place mainly during school instruction
Relevance: Fundamental decision on the demarcation of competences between Confederation and cantons
«The demarcation between school and extra-curricular is decisive because the school sector lies primarily within the competence of the cantons (Art. 62 para. 1 FC). [...] Cross-subsidisation from competition with school events through federal promotional funds would therefore violate the constitutional division of competences.»
B-973/2017 (FCAT) of 11 July 2017 (FCAT 2017 IV/5)
Admission to Youth+Music leader training; upper age limit as admission restriction
Relevance: Specification of promotion principles in the extra-curricular sector
«The legal basis for the 'Youth + Music' programme is found in Art. 67a FC and Art. 12 CPCA. These lack a specific regulation regarding J+M leader training, or prerequisites for admission to such training.»
Case law has clarified that Art. 67a FC is not justiciable and does not establish direct subjective rights. The Federal Administrative Court held in B-3536/2016:
«Art. 67a FC is not justiciable, so that the appellant cannot derive claims directly from Art. 67a FC.»
The provision obliges the Confederation and cantons to promote musical education, but requires legislative specification. In the extra-curricular sector, competence lies with the Confederation, which must establish the principles for youth access to music-making.
The practical implementation of Art. 67a FC takes place through promotional concepts of the FDHA based on Art. 28 CPCA. The Federal Administrative Court confirmed in B-3536/2016 the lawfulness of this delegation arrangement and the wide discretion of the administration in allocating funds.