#1. Legislative History

N. 1 Art. 70 FC has its roots in Art. 116 FC 1874, which first enshrined Switzerland's linguistic diversity in constitutional law. The total revision of 1999 brought a comprehensive revision of the language provisions. As the Federal Council Message on a new Federal Constitution of 20 November 1996 states, «the new language provision is intended to honour multilingualism as an essential characteristic of the federal state and to establish concrete obligations for the Confederation and the cantons» (BBl 1997 I 314).

N. 2 The parliamentary deliberations were characterised by the debate on language teaching. The National Council rejected a minority motion that would have required the cantons to teach a national language as a second language in schools. The definitive version deliberately leaves this question to cantonal educational sovereignty.

N. 3 The explicit inclusion of Romansh as an official language of the Confederation in dealings with Romansh-speaking persons (para. 1 sentence 2) represents a significant innovation compared to the old constitution. This provision recognises the special position of the fourth national language and strengthens its constitutional protection.

#2. Systematic Classification

N. 4 Art. 70 FC, together with → Art. 4 FC (National languages) and → Art. 18 FC (Language freedom), forms the constitutional core of Swiss language law. The provision is systematically placed in Chapter 1 «Status of Confederation and Cantons», which emphasises its state organisational dimension.

N. 5 The connection to → Art. 8 para. 2 FC (Prohibition of discrimination based on language) is obvious. Further cross-references exist to → Art. 69 FC (Cultural promotion), → Art. 31 para. 2 FC (Language freedom in detention) and → Art. 175 para. 4 FC (Linguistic representation in the Federal Council).

N. 6 In the international context, the European Charter for Regional or Minority Languages, which Switzerland ratified in 1997, is of significance. Although Arts. 5 and 6 ECHR contain no explicit language rights, the ECtHR has derived linguistic protection obligations from the prohibition of discrimination (Art. 14 ECHR).

#3. Elements of the Offence / Normative Content

#Official Languages of the Confederation (Para. 1)

N. 7 The three main official languages German, French and Italian are equal. This equality means that federal authorities are obliged to communicate in all three languages. BGE 131 V 35 clarified, however, that this obligation only applies to external communication with citizens, not to internal communications between authorities.

N. 8 Romansh has a special position: it is only an official language in direct dealings with Romansh-speaking persons. This person-related regulation takes account of the numerical weakness of the fourth national language, but at the same time guarantees Romansh-speaking persons the right to communicate in their mother tongue with federal authorities.

#Cantonal Language Sovereignty (Para. 2)

N. 9 The cantons determine their official languages autonomously. This competence is an emanation of cantonal sovereignty and enables differentiated solutions. The limits of this autonomy lie in the territorial principle and minority protection.

N. 10 According to constant case law since BGE 100 Ia 462, the territorial principle serves to preserve the traditional areas of distribution of the national languages. Doctrine is divided on its exact scope: Papaux (FZR 2002, 157) emphasises the strict separation of language areas to preserve homogeneity, while Müller/Schefer (Grundrechte, 4th ed. 2008, 326) place linguistic peace and social cohesion in the foreground.

N. 11 «Traditional linguistic minorities» are historically rooted language groups in a specific area. The term is narrower than «linguistic minority» and does not include newly immigrated language groups. This was confirmed by BGE 122 I 236 for foreign-language immigrants.

#Promotion of Understanding (Para. 3)

N. 12 The obligation to promote understanding is directed equally at the Confederation and the cantons. It is programmatic in nature and does not create subjective rights. Some commentators take the view that no material regulatory competence of the Confederation for foreign language teaching can be derived from this provision.

#Support Obligations of the Confederation (Paras. 4 and 5)

N. 13 Para. 4 obliges the Confederation to support multilingual cantons (Bern, Fribourg, Valais, Grisons) in their special tasks. This provision recognises the increased costs of multilingualism in administration, justice and education.

N. 14 Para. 5 contains a specific promotion obligation for Romansh and Italian in the cantons of Grisons and Ticino. This provision concretises the general cultural promotion obligation of → Art. 69 FC for the threatened national languages.

#4. Legal Consequences

N. 15 For federal authorities, there is an obligation to work in all three main official languages. Federal laws, ordinances and official communications must be published simultaneously in all three languages. In dealings with private parties, they have the right to choose one of the official languages (BGE 142 III 521).

N. 16 The cantons must observe the territorial principle when determining their official languages. This means specifically that they may not draw arbitrary language boundaries, but must respect the historically developed language areas. In school language, the cantons have considerable scope for design according to BGE 139 I 229.

N. 17 The promotion and support obligations in paras. 3–5 are not justiciable claims. They oblige the legislator to create corresponding support programmes. The Languages Act of 5 October 2007 (LangA, SR 441.1) concretises these constitutional mandates.

#5. Controversies

N. 18 The central controversy concerns the scope of the territorial principle. While traditional doctrine (Thürer, ZBl 1984, 241; Biaggini, recht 1997, 112) favours a strict territorial assignment, newer voices (Guckelberger, ZBl 2005, 609; Burri/MacLaren, Jusletter 5.11.2007) plead for more flexible handling in view of increased mobility.

N. 19 The question of school language for migrants is also controversial. Achermann/Künzli (Welcome to Switzerland, 2011, 178) demand a right to mother-tongue supplementary instruction, while Fleiner (LeGes 1/1991, 93) rejects this with reference to the territorial principle.

N. 20 In interpreting the term «Romansh», there is disagreement as to whether this means Rumantsch Grischun or the five idioms. BGE 139 I 229 deliberately left this question open and granted municipalities freedom of choice. Parts of doctrine (Wyss, ZSR 1997 I 141) criticise this indeterminacy as problematic under the rule of law.

#6. Practice Notes

N. 21 When submitting applications to federal authorities, legal seekers can freely choose between the official languages. The chosen language then applies to the entire procedure. A language change during the procedure is only possible with the consent of the authority.

N. 22 In multilingual cantons, the language of proceedings is often determined by special rules. In the canton of Fribourg, for example, according to BGE 136 I 149, one can freely choose between German and French before the cantonal court, regardless of the first instance language of proceedings.

N. 23 The translation obligation is significant for practice. According to BGE 128 V 34, cantonal authorities can require that documents be translated into the cantonal official language. The costs are usually borne by the submitting party, unless it concerns evidence in criminal proceedings.

N. 24 Companies should note that the language regulation also applies to private parties entrusted with public tasks who perform sovereign functions. This affects, for example, licensed transport companies or organisations entrusted with public tasks.

#Official languages of the Confederation (para. 1)

BGE 131 V 35 (8 December 2004) Obligation of federal authorities to use the official language when communicating with citizens. The Federal Supreme Court clarified that internal communications by federal authorities are not subject to the same language requirements as communication with citizens.

«Neither the principle of equality of languages nor the principle requiring the use of the official language prohibit employees of a federal authority (in this case the IV office for insured persons abroad) from drafting internal communications in a national language which is not the official language used when dealing with the citizen concerned.»

BGE 142 III 521 (7 September 2016) Procedural language before the Federal Supreme Court in international arbitration proceedings. The Federal Supreme Court confirmed that despite English-language arbitral awards, appeal proceedings must be conducted in an official language of the Confederation.

«Even if the challenged arbitral award was drafted in English, the appeal brief and any additional submissions by the parties must be drafted in an official language of the Confederation.»

#Cantonal linguistic sovereignty and territoriality principle (para. 2)

BGE 136 I 149 (18 January 2010) Freedom of language and procedural language in bilingual cantons. The Federal Supreme Court decided that persons seeking justice in bilingual cantons have the right to address the authorities in the official language of their choice.

«Art. 17 para. 2 of the Constitution of the Canton of Fribourg allows the person seeking justice to address the cantonal court in the official language of their choice - French or German. This applies regardless of the procedural language. The cantonal court may not make the entry into proceedings on a legal remedy dependent on a legal brief drafted in the other official language being translated into the procedural language.»

BGE 128 V 34 (11 September 2002) Territoriality principle and translation obligation. The case concerned the translation of a medical expert opinion from Italian to French in the Canton of Geneva.

«In view of the linguistic territoriality principle (Art. 70 para. 2 Fed. Const.), it is entirely permissible for the cantonal appeal authority to require the IV office to translate a MEDAS expert opinion (drafted in Italian in this case) into the official language of the canton (French).»

#Romansh and linguistic diversity

BGE 139 I 229 (12 July 2013) School language in Graubünden: Rumantsch Grischun versus idioms. Central decision on the question of whether Art. 70 Fed. Const. grants a right to instruction in Romansh idioms instead of Rumantsch Grischun.

«Individual freedom of language guarantees the right to speak both Rumantsch Grischun and a Romansh idiom. [...] The constitutional concept of 'Romansh' leaves open whether 'Rumantsch Grischun' or the idioms are meant. [...] The government's decision [...] does not affect the scope of protection of freedom of language.»

BGE 141 I 36 (15 December 2014) Municipal autonomy and school language in Graubünden. Supplementary judgment to BGE 139 I 229, which examined municipal autonomy in language choice.

«The municipalities of the Canton of Graubünden enjoy relatively considerable discretion and thus autonomy in determining the school language. [...] The objectively justified regulation does not violate municipal autonomy.»

#Freedom of language and territoriality principle

BGE 138 I 123 (25 July 2012) Private schools and territoriality principle in Ticino. The Federal Supreme Court confirmed the authority of cantons to require instruction in the official language for private schools.

«Case law also traces the authority of cantons to make instruction in the official language mandatory for private schools back to the territoriality principle. The possibility for cantons to legislate in this sense while restricting freedom of language is based on the principle of unity of the language area.»

BGE 122 I 236 (15 July 1996) Freedom of language and German-language school in the Canton of Bern. Fundamental decision on the relationship between freedom of language and territoriality principle regarding school language.

«Freedom of language does not oblige public authorities to provide school instruction in the language of newly immigrated linguistic minorities. [...] The territoriality principle fundamentally justifies providing school instruction in the official language of the relevant area.»

#Historical development

BGE 100 Ia 462 (30 October 1974) Early fundamental decision on freedom of language as an unwritten constitutional right. Groundbreaking case law before the explicit codification of freedom of language.

«Freedom of language as an unwritten fundamental right of the Federal Constitution; cantonal competence to regulate the language of instruction in public schools; territoriality principle. [...] The territoriality principle also applies to instruction at state schools.»

BGE 121 I 196 (3 May 1995) Procedural language in criminal proceedings in the Canton of Fribourg. Balancing freedom of language and territoriality principle in criminal justice.

«Foundations and scope of freedom of language and the territoriality principle under the constitutional law of the Confederation and the Canton of Fribourg. [...] Balancing freedom of language and the territoriality principle and the opposing interests of the administration of justice.»