1Cultural matters are a cantonal responsibility.
2The Confederation may support cultural activities of national interest as well as art and music, in particular in the field of education.
3In the fulfilment of its duties, it shall take account of the cultural and linguistic diversity of the country.
Art. 69 BV — Culture
#Overview
Art. 69 BV regulates the division of tasks between the Confederation and the cantons in the field of culture. According to para. 1, the cantons have primary responsibility for culture (Schmidt-Gabain, BSK BV, Art. 69 N. 5). They may enact their own cultural laws, operate museums and promote local artists. According to para. 2, the Confederation may only support cultural endeavours of «national interest» (BBl 1997 I 301). These are projects that have an impact beyond regional borders, such as Swiss filmmaking or national festivals.
The Federal Constitution does not define «culture». The prevailing doctrine understands this to mean the creation, preservation and study of the fine arts (Schmidt-Gabain, BSK BV, Art. 69 N. 12). It is disputed when the national interest is fulfilled: some jurists require supraregional impact (Christen/Raschèr/Tribolet, AJP 2001, 1035, 1042). Others believe that even local projects can be of national importance if they contribute to cultural diversity (Schmidt-Gabain, BSK BV, Art. 69 N. 15).
An example: If the Canton of Graubünden wants to promote a Romansh theatre festival, it has responsibility for this. If the festival applies for federal funding, it must demonstrate that it strengthens Romansh culture throughout Switzerland. Federal support is voluntary – no one has a legal entitlement to it (JAAC 68.15 E. 4.1).
According to para. 3, the Confederation must take account of cultural and linguistic diversity in all its tasks (Holland, Bundesstaatliche Kunstförderung, 2002, 78). This concerns not only cultural policy, but also other areas such as media support or education policy. The provision concretises the principle of subsidiarity from Art. 3 BV for the cultural sector.
Art. 69 BV — Culture
#Doctrine
#1. Legislative History
N. 1 With the total revision of the Federal Constitution, federal cultural promotion received an express constitutional basis for the first time. Under the old Federal Constitution of 1874, cultural promotion was based on an unwritten federal competence, as confirmed in JAAC 68.15 E. 1.2. The popular initiative «in faveur de la culture» of 4 December 1984 still failed to achieve the double majority (BBl 1984 II 636).
N. 2 The Message on a new Federal Constitution of 20 November 1996 emphasised the necessity of a clear delimitation of competences between the Confederation and the cantons in the cultural sphere (BBl 1997 I 301). The constitutional legislator wanted to constitutionally secure existing practice while simultaneously respecting the primary cantonal cultural sovereignty (Schmidt-Gabain, BSK BV, Art. 69 N. 2-4).
N. 3 Parliamentary deliberations showed a consensus regarding the subsidiary role of the Confederation while simultaneously recognising its importance for cultural endeavours of national interest. The formulation «may» in para. 2 underlines the facultative character of federal competences (BBl 1997 I 301).
#2. Systematic Classification
N. 4 Art. 69 BV stands in systematic connection with the federalist state structure of Switzerland. The provision concretises → Art. 3 BV (principle of subsidiarity) and → Art. 42 para. 1 BV (division of tasks) for the cultural sphere. The primary cantonal jurisdiction (para. 1) corresponds to the principle of residual competence of the cantons (Schmidt-Gabain, BSK BV, Art. 69 N. 5).
N. 5 The norm stands in close connection with further culture-related constitutional provisions: → Art. 21 BV (freedom of the arts) guarantees individual artistic activity, while Art. 69 BV regulates the institutional framework conditions for cultural promotion. ↔ Art. 70 BV (languages) concretises the linguistic diversity mentioned in Art. 69 para. 3 BV (Schweizer, ZSR 2001 I 187, 195).
N. 6 In the context of fundamental rights, → Art. 8 BV (equality before the law) is relevant for non-discriminatory cultural promotion. → Art. 36 BV limits state interventions in freedom of the arts, while → Art. 5 BV establishes the rule-of-law requirements for cultural promotion (Uhlmann/Bognuda, ZSR 2008 I 363, 370).
#3. Elements of the Offence / Content of the Norm
N. 7 Concept of culture: The Constitution does not define the term «culture». According to prevailing doctrine, culture within the meaning of Art. 69 BV is to be understood in a narrow sense as «the creation, preservation and research of the fine arts» (Schmidt-Gabain, BSK BV, Art. 69 N. 12). This narrow definition is, however, disputed; Pfändler-Oling argues for a broader, anthropologically based concept of culture (Pfändler-Oling, Die verfassungsrechtliche Grundlage der Kulturförderung im Bund, 2010, 45ff.).
N. 8 Cantonal jurisdiction (para. 1): The cantons are primarily responsible for the area of culture. This competence encompasses the entire cultural policy including legislation, implementation and financing. Cantonal cultural sovereignty is comprehensive and requires no special constitutional authorisation (Biaggini, BV Kommentar, Art. 69 N. 2).
N. 9 National interest (para. 2): The concept of «national interest» is the central criterion for federal promotion. Doctrine is divided: Christen/Raschèr/Tribolet require that the impact of cultural creation extends beyond local or regional roots (AJP 2001, 1035, 1042). Schmidt-Gabain argues conversely that cultural endeavours without supra-regional impact can also be in the national interest if they contribute to the cultural diversity of Switzerland (BSK BV, Art. 69 N. 15).
N. 10 Art and music (para. 2): The explicit mention of «art and music» does not mean that other cultural areas are excluded from federal promotion. Rather, it is an exemplary enumeration with special emphasis on the educational sphere (Schweizer, ZSR 2001 I 187, 197).
N. 11 Duty to give consideration (para. 3): The Confederation must take cultural and linguistic diversity into consideration in all its tasks — not only in cultural promotion. This cross-cutting principle obliges all federal authorities (Holland, Bundesstaatliche Kunstförderung in der Schweiz, 2002, 78).
#4. Legal Consequences
N. 12 Art. 69 BV establishes a competence norm, but not subjective claims to cultural promotion. JAAC 68.15 E. 4.1 confirms that even when the promotion requirements are met, there is no legal claim to financial assistance. The facultative formulation («may») grants the Confederation considerable discretion (Schmidt-Gabain, BSK BV, Art. 69 N. 7).
N. 13 The federal competence according to para. 2 is designed as a concurrent competence with priority for the cantons. The Confederation may only act subsidiarily and must demonstrate the national interest. Biaggini emphasises that the federal competence «is to be regarded as less far-reaching than that of the cantons due to the requirement of national interest» (BSK BV, Art. 69 N. 15).
N. 14 The duty to give consideration according to para. 3 has a programmatic character, but obliges all federal bodies in law-making and implementation. It can be used as an interpretive aid and in weighing interests (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 3842).
#5. Disputes
N. 15 Definition of national interest: A central point of dispute concerns the interpretation of «national interest». Christen/Raschèr/Tribolet demand an impact extending beyond regional roots (AJP 2001, 1035, 1042). Schmidt-Gabain argues conversely that even locally anchored cultural endeavours can be of national interest in the interest of Switzerland's cultural diversity (BSK BV, Art. 69 N. 15). This controversy has direct effects on the Confederation's promotion practice.
N. 16 Promotion criteria versus aleatory arts promotion: A fundamental dissent exists regarding promotion criteria. Uhlmann/Bognuda argue for strict selection with clear criteria, as «art must not be promoted with a watering can» (ZSR 2008 I 363, 376; BSK BV, Art. 69 N. 20). Schmidt-Gabain represents the opposite position and argues that aleatory (chance-based) cultural promotion is better compatible with freedom of the arts and equality before the law, as art would then «finally be free again to ignore the supposed criteria of its promotion» (BSK BV, Art. 69 N. 19-20). Baumann and Depenheuer have discussed the theoretical foundations of random distribution (Baumann, SJZ 2003, 621; Depenheuer, JZ 1993, 171).
N. 17 Scope of federal competence: The reach of federal promotion is disputed. A restrictive interpretation emphasises the subsidiary role of the Confederation and wants to limit its activity to few, clearly defined areas. The extensive interpretation sees in the open formulation a deliberate flexibility for contemporary cultural policy (Uhlmann/Raschèr/Reichenau, Kulturförderung, in: Mosimann/Renold/Raschèr, Kultur Kunst Recht, 2009, 141, 156).
#6. Practical Notes
N. 18 Application submission: Cultural creators and organisations must substantiate the national interest when applying for federal contributions. JAAC 68.15 shows that the mere formal fulfilment of promotion requirements does not suffice. The «cultural policy added value» must be demonstrated, particularly for umbrella organisations whose members are already being promoted (JAAC 68.15 E. 5.3).
N. 19 Procedural guarantees: Although no claim to promotion exists, general procedural guarantees apply. → Art. 29 BV guarantees the right to a hearing, → Art. 8 BV prohibits arbitrary unequal treatment. Promotion decisions must be reasoned and are subject to judicial review, whereby the courts apply a restrained standard of review (see the procedural conduct in JAAC 68.15, B-4572/2012 and B-6043/2012).
N. 20 Confederation-cantonal coordination: In practice, coordination between federal and cantonal promotion is central. Double subsidisation is not generally excluded according to JAAC 68.15 E. 5.1-5.2, but must create demonstrable added value. The KUOR guidelines (BBl 1999 2627) and the Cultural Promotion Act (KFG, SR 442.1) concretise the coordination mechanisms.
N. 21 International dimension: Although Art. 69 BV contains no explicit foreign policy component, the national interest also enables the promotion of international cultural exchange. Practice shows a close connection with foreign policy according to → Art. 54 BV (Holland, Bundesstaatliche Kunstförderung, 2002, 134).
Art. 69 Cst. — Culture
#Case Law
#Federal Competences in Cultural Promotion
JAAC 68.15 of 2 July 2003 Annual financial assistance to cultural organisations from the KUOR credit
The Federal Council clarified the division of competences between the Confederation and the cantons in cultural promotion. Art. 69 Cst. forms the constitutional basis for the planned Cultural Promotion Act and legitimises the Federal Council's KUOR guidelines for supporting cultural organisations of national interest.
«Art. 69 Cst. forms the basis for the planned new Cultural Promotion Act (CPA). The contested decision of the FDHA was made in application of the KUOR guidelines issued by it on 16 November 1998, which were based on the then unwritten constitutional federal competence in the field of cultural promotion under the Federal Constitution of the Swiss Confederation of 29 May 1874.»
#Double Subsidisation and Cultural Policy Added Value
JAAC 68.15 of 2 July 2003 Rejection of an application for annual financial assistance
The decision specifies the promotional criteria under Art. 69 para. 2 Cst. Double subsidisation is inadmissible when the umbrella organisation creates no substantial cultural policy added value in relation to its already supported members.
«The FDHA considers double subsidisation undesirable in the present case because the appellant creates only a comparatively modest cultural policy added value in relation to its equally supported members — who represent around half of the members.»
#Cantonal Cultural Jurisdiction and Federal Supervision
VD.2021.124 of 29 January 2022 COVID compensation for losses in the cultural sector
The Basel Court of Appeal confirmed the primary cantonal jurisdiction under Art. 69 para. 1 Cst. while simultaneously recognising supplementary federal measures in times of crisis. The decision shows the interplay of competence levels in cultural promotion.
«Art. 69 Cst. [underlies the cantonal ordinance on the cultural sector under the COVID-19 Act]. The cantons have jurisdiction over culture. The Confederation may support cultural endeavours that are in the national interest and promote art and music, particularly in the field of education.»
#Cultural Diversity as Constitutional Mandate
BGE 126 II 300 of 3 May 2000
Liestal Banntag and cultural traditions
The Federal Supreme Court recognised cultural traditions as forms of expression of cantonal cultural sovereignty worthy of protection. The decision on the Liestal Banntag shows how Art. 69 para. 3 Cst. (consideration of cultural diversity) must be taken into account when balancing interests between cultural protection and other fundamental rights.
«The municipal council's directives regulating shooting on Banntag violate neither environmental law nor the state's fundamental rights protection obligations. [Banntag] represents a centuries-old cultural tradition that is worthy of protection as an expression of local cultural identity.»
#Freedom of Movement and Cultural Activity
Judgment 1C_416/2009 of 14 September 2010 Closure of alpine and forest paths
The Federal Supreme Court examined the compatibility of traffic police measures with freedom of movement taking cultural aspects into account. The decision shows the limits of municipal powers when interfering with culturally significant spaces and traditions.
«Freedom of movement (Art. 10 para. 2 Cst.) does not encompass every conceivable possibility of locomotion. [However, in the balancing of interests,] traditional forms of use and cultural significance of the affected area must be taken into account.»
#Linguistic Diversity and Multilingualism Requirement
The case law on Art. 69 para. 3 Cst. (consideration of linguistic diversity) developed mainly in other constitutional articles (Art. 70 Cst.), with the Federal Supreme Court recognising the multilingualism requirement as a structural principle of the Swiss cultural order.
#Distinction from Other Cultural Competences
The case law shows the close interlinking of Art. 69 Cst. with other culture-relevant constitutional provisions:
- Art. 70 Cst. (Languages): Linguistic diversity as a sub-area of cultural diversity
- Art. 67 Cst. (Sport): Distinction between cultural and sporting activity
- Art. 62-66 Cst. (Education): Cultural transmission as an educational mandate
#Federal Supreme Court's Standard of Review
When reviewing cultural policy decisions, the Federal Supreme Court applies a restrained standard of review. The courts acknowledge the discretionary scope of the competent authorities in specifying "national interest" and in assessing "cultural policy added value".