Art. 78 FC — Protection of Nature and Cultural Heritage

#Doctrine

#1. Legislative History

N. 1 Art. 78 FC derives from Art. 24sexies of the Federal Constitution of 1874, which was inserted into that Constitution by Federal Decree of 13 March 1962 (BBl 1961 I 1109). The original version of para. 1 conferred on the Confederation a legislative competence in the fields of nature protection and cultural heritage protection. On that basis, the federal legislature enacted the Federal Act on the Protection of Nature and Cultural Heritage of 1 July 1966 (NCHA; SR 451).

N. 2 The decisive turning point for para. 5 (protection of peatlands) was the popular initiative «Rothenthurm» (Initiative for the Protection of Peatlands): the Swiss electorate adopted it on 6 December 1987 with 57.8% of votes in favour, thereby inserting Art. 24sexies para. 5 of the former Federal Constitution. According to the prevailing view, this provision is directly applicable and establishes a fundamentally absolute prohibition on alteration: a case-by-case balancing of interests between the constitutionally enshrined prohibition on alteration and competing use interests is excluded (BGE 117 Ib 243 consid. 3b).

N. 3 In the course of the total revision of the Federal Constitution in 1999, Art. 24sexies of the former Federal Constitution was carried over unchanged as Art. 78 FC. Para. 1 now expressly formulates a cantonal competence, which represents a linguistic clarification compared with the former law but no substantive change (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 697). The Dispatch on the total revision noted that the cantonal competence for nature and cultural heritage protection exists in addition to federal legislation (BBl 1997 I 243).

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#2. Systematic Classification

N. 4 Art. 78 FC is a competence norm: it governs the division of responsibilities between the Confederation and the cantons in the field of nature and cultural heritage protection. It does not establish subjective defensive rights for private individuals and is to that extent to be distinguished from the fundamental rights guarantees (Arts. 7–36 FC). Para. 1 confirms the residual cantonal competence under Arts. 3 and 43 FC; paras. 2–5 establish progressively more specific federal competences. The provision stands in close interplay with → Art. 75 FC (spatial planning) and → Art. 74 FC (environmental protection).

N. 5 Within the structure of Art. 78 FC, a clear distinction must be drawn between four normative levels:

• Para. 1: Declaratory allocation of competence to the cantons without any direct substantive obligation
• Para. 2: Duty of care and conservation incumbent on the Confederation when fulfilling federal tasks — this is the most practically relevant provision
• Para. 3: Discretionary («may») provision in favour of the Confederation (support for and acquisition of protected objects)
• Paras. 4–5: Direct federal competences with immediate effect (protection of biotopes/species and protection of peatlands)

N. 6 The implementing law for Art. 78 FC is centred in the NCHA (SR 451) and in numerous federal inventories (Federal Inventory of Sites of Local Character worth Protecting, ISOS, SR 451.12; Federal Inventory of Landscapes and Natural Monuments, BLN, SR 451.11; Mire Landscape Ordinance, SR 451.35). These inventories play a central role in the examination of federal tasks under para. 2. ↔ Art. 2 NCHA gives concrete form to the concept of «federal task» within the meaning of Art. 78 para. 2 FC.

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#3. Elements of the Provision / Normative Content

3.1 Para. 1: Basic Cantonal Competence

N. 7 Art. 78 para. 1 FC assigns to the cantons the basic competence for nature and cultural heritage protection. According to the prevailing doctrine, this norm is essentially declaratory in character: it recalls the cantonal competence that exists in any event under Arts. 3 and 43 FC, but contains no concrete substantive requirements and no directly applicable protection obligations (BGE 147 I 308 consid. 4.1, with reference to Marti, in: St. Galler Kommentar BV, 3rd ed. 2014, N. 4 on Art. 78 FC; Biaggini, BV, 2nd ed. 2017, N. 3 on Art. 78 FC). The cantons are free to establish protective measures and to define the concept of monument (BGE 121 II 8 consid. 3a).

N. 8 However, the cantons bear the task of creating the legal bases necessary for the preservation of objects worthy of protection and of deciding on their designation as protected objects in individual cases (BGE 147 I 308 consid. 4.2). This duty of cantonal legislators to act also follows from the Convention for the Protection of the Architectural Heritage of Europe of 3 October 1985 (Granada Convention; SR 0.440.4), which entered into force for Switzerland on 1 July 1996: under that Convention, the cantons are obliged to enact effective protective provisions for architectural monuments (Arts. 3(2) and 4(2) of the Granada Convention), while retaining considerable latitude (BGE 147 I 308 consid. 6.1–6.2).

3.2 Para. 2: Duty of Care and Conservation in Relation to Federal Tasks

N. 9 Art. 78 para. 2 FC establishes two duties of the Confederation: a general duty of care with respect to the concerns of nature and cultural heritage protection in the performance of federal tasks, and a qualified duty of conservation for landscapes, townscapes, historic sites and natural and cultural monuments where the public interest so requires. The duty of care requires the best possible protection; the duty of conservation requires unimpaired preservation, but permits a balancing of interests (BGE 135 II 209 consid. 2.1; Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, pp. 729 f.).

N. 10 The central concept of «the performance of a federal task» within the meaning of Art. 78 para. 2 FC has not been exhaustively defined in Art. 2 NCHA. The Federal Supreme Court has identified two categories of cases (BGE 139 II 271 consid. 9.3–9.4):

1. The contested ruling concerns a legal matter that falls within the Confederation's jurisdiction under federal law and is governed by federal law; or
2. The federal mandate entails a risk of impairment of natural features, townscapes or landscapes worthy of protection, such that compliance with the requirements of nature and cultural heritage protection must be ensured.

Not every application of federal law triggers the right of association appeal under Art. 12 NCHA; the federal task must have a concrete connection to nature, landscape and cultural heritage protection.

N. 11 In the field of spatial planning, the following applies: authorisations for development outside the building zone under Arts. 24 ff. of the Spatial Planning Act (SPA) consistently constitute federal tasks according to established case law (BGE 136 II 214 consid. 2; BGE 112 Ib 70 consid. 4). Differentiated rules apply to land use plans and building permits within the building zone: building permits for mobile telecommunications installations also constitute federal tasks within the building zone, because the Confederation has obliged the licence holders to build nationwide networks (BGE 131 II 545 consid. 2.2). New zonings pursuant to Art. 15 SPA in its version in force since 2014 also constitute federal tasks, since that provision is directly applicable and exhaustive (BGE 142 II 509 consid. 2.5). The federal inventories (ISOS, BLN) have an immediately qualified effect in the fulfilment of federal tasks: deviations from unimpaired preservation are only permissible where equally or more important interests of national significance are at stake (Art. 6 para. 2 NCHA; BGE 135 II 209 consid. 2.1).

N. 12 In the case of cantonal (and municipal) tasks — notably in land use planning — federal inventories such as the ISOS serve as binding planning bases for authorities pursuant to Art. 6 para. 4 SPA: they are equivalent to sectoral plans and concepts within the meaning of Art. 13 SPA and enter land use planning through cantonal structure plans. The cantons are obliged to take them into account, without the strict requirements of Art. 6 para. 2 NCHA applying directly (BGE 135 II 209 consid. 2.1, with reference to Marti, URP 2005, pp. 634 ff.; Rausch/Marti/Griffel, Umweltrecht, 2004, para. 527 ff.).

3.3 Para. 3: Competence to Support and Acquire

N. 13 Art. 78 para. 3 FC contains a discretionary («may») provision: the Confederation may support conservation efforts financially and acquire objects of national significance by contract or expropriation. This norm does not give rise to any entitlement to federal subsidies, but it is the constitutional basis for the subsidy system under the NCHA (Arts. 13–18 NCHA) as well as for the establishment of federal inventories. Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3182, classify this norm as a mere empowerment and promotion norm without direct protective effect.

3.4 Para. 4: Protection of Biotopes and Species

N. 14 Art. 78 para. 4 FC contains a concurrent legislative competence of the Confederation for the protection of animal and plant life and their habitats, and for the protection of threatened species from extinction. Federal legislation (Arts. 18 ff. NCHA) protects in particular raised bogs, fens, dry meadows, flood plains and hedgerows. The Federal Supreme Court has clarified that biotopes — notably hedgerows — are not directly protected under federal provisions but fall in principle within the cantonal legislative competence; the protection of biotopes under Arts. 18 ff. NCHA must, however, be characterised as a federal task delegated to the cantons (BGE 133 II 220 consid. 2.2).

3.5 Para. 5: Absolute Protection of Peatlands

N. 15 Art. 78 para. 5 FC is directly applicable (BGE 118 Ib 11 consid. 2e; BGE 123 II 248 consid. 3a) and establishes a fundamentally absolute prohibition on construction and alteration with respect to peatlands and mire landscapes of particular beauty and national significance. A case-by-case balancing of interests between the prohibition on alteration and use interests is ruled out (BGE 117 Ib 243 consid. 3b). The protection of peatlands takes precedence over cantonal law and cantonal spatial plans pursuant to Art. 49 para. 1 FC (BGE 127 II 184 consid. 5a).

N. 16 The concept of «mire landscape» is not determined solely by natural-science criteria but requires normative concretisation through Art. 23b NCHA and the Federal Council's Mire Landscape Ordinance (SR 451.35). Under Art. 23b para. 1 NCHA, a mire landscape is a near-natural landscape characterised to a particular degree by peatlands, whose peatland-free parts stand in a close ecological, visual, cultural or historical relationship with the peatlands. The demarcation in individual cases falls primarily to the Federal Council, which is afforded a margin of appreciation to be respected by the courts; courts may not simply substitute a different plausible delimitation for that of the Federal Council (BGE 127 II 184 consid. 5a–5b). However, the qualification of an area as a mire landscape may not depend on a balancing of interests taking account of use interests (BGE 127 II 184 consid. 5a). The fact that an area has building zone status is irrelevant for the purposes of defining the mire landscape perimeter; what is permissible and required, however, is a particularly careful examination in the case of building zones that comply with the SPA (BGE 127 II 184 consid. 5b).

N. 17 The exception for «installations serving the protection or the previous agricultural use of peatlands and mire landscapes» must be interpreted restrictively. The conversion of an existing building to a different use does not, as a rule, fall within this exception (BGE 123 II 248 consid. 3a). Infrastructure installations that do not fall under Art. 23d para. 2 lit. d NCHA are also impermissible within the mire landscape; this applies equally to tunnels built by open-cut construction (BGE 138 II 281 consid. [headnote]).

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#4. Legal Consequences

N. 18 A breach of the duty of care under para. 2 may result in an authorisation being annulled by the Federal Supreme Court. The right of association appeal under Art. 12 NCHA ensures judicial enforcement: nationwide nature and cultural heritage protection associations may challenge rulings relating to federal tasks by way of appeal, without any inventoried protected object needing to be concretely affected (BGE 139 II 271 consid. 9.3). The right of appeal requires only that provisions serving the fulfilment of federal tasks in the field of nature and cultural heritage protection are violated.

N. 19 Breaches of the absolute prohibition on alteration under para. 5 give rise to an obligation to restore the lawful state of affairs. This restoration obligation applies even where unlawful structural alterations in mire landscapes have already been carried out; subsequent legalisation is excluded (BGE 123 II 248 consid. 3b–c).

N. 20 The right of appeal under Art. 12 NCHA is only very restrictively applicable to cantonal heritage protection norms (para. 1), because purely cantonal tasks do not constitute federal tasks within the meaning of para. 2. Cantonal heritage protection provisions may be challenged directly before the Federal Supreme Court by way of abstract norm review, provided that landowners are virtually affected and a violation of higher-ranking law (Granada Convention, federal law) is alleged (BGE 147 I 308 consid. 2; → Art. 189 FC).

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#5. Contested Issues

5.1 Normative Character of Para. 1

N. 21 It is disputed whether Art. 78 para. 1 FC obliges the cantons to meet minimum standards in cultural heritage protection. The prevailing doctrine denies this: Marti (in: St. Galler Kommentar BV, 3rd ed. 2014, N. 4 on Art. 78 FC) and Biaggini (BV, 2nd ed. 2017, N. 3 on Art. 78 FC) regard para. 1 as a purely declaratory competence norm without any concrete substantive binding force on the cantons. The Federal Supreme Court endorses this view in relation to domestic Swiss constitutional law in principle, but leaves open whether a more far-reaching duty to act could be derived in the light of the Granada Convention (BGE 147 I 308 consid. 4.2–4.3). Zufferey (in: Kommentar NHG, 2nd ed. 2019, pp. 11 and 20) advocates, from a legal policy perspective, that para. 1 should be understood as a genuine protection obligation — a minority view that has not yet prevailed.

5.2 Scope of the Concept of «Federal Task» in Para. 2

N. 22 It is contested whether ordinary building permits and land use plans within the building zone constitute federal tasks. Case law draws distinctions: the mere application of framework federal law (e.g. the type and extent of use within the building zone) does not suffice; a federal task only exists where federal law has provided for «exhaustive and directly applicable» regulation (new zonings under Art. 15 SPA; mobile telecommunications installations; second homes under Art. 75b FC) (BGE 139 II 271 consid. 10.1–10.3; BGE 142 II 509 consid. 2.5). Critical of this expansion: Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3182 ff., who warn against a creeping displacement of cantonal planning autonomy through an extensive interpretation of the concept of federal task.

5.3 Absolute Character of Peatland Protection under Para. 5 and Exceptions for Existing Buildings

N. 23 Legal scholarship debates whether Art. 78 para. 5 FC is truly absolute or whether a balancing of interests may nonetheless take place in individual cases. The Federal Supreme Court consistently rejects any balancing of interests with regard to interventions within the protection perimeter (BGE 117 Ib 243 consid. 3b). Waldmann (Der Schutz von Mooren und Moorlandschaften, doctoral thesis Fribourg 1997, pp. 171 f.) and Fahrländer (Kommentar NHG, 1997, para. 38 on Art. 18a NCHA) have argued, however, that in the delimitation of the perimeter — as distinct from the protection as such — interpretations consistent with the principle of proportionality are required. The Federal Supreme Court has absorbed this approach to the extent that, in the drawing of the perimeter, the benefit of the doubt may be given in favour of the landowner where there is no clear ecological, visual, cultural or historical connection with the peatland (BGE 127 II 184 consid. 5b), without affecting the absolute character of the prohibition itself.

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#6. Practical Guidance

N. 24 In practice, the qualification of an official act as a «federal task» within the meaning of Art. 78 para. 2 FC / Art. 2 NCHA is the decisive first step in the analysis. Where a federal task is present, two consequences follow: (1) the competent authority must ensure the protection of landscapes, townscapes, historic sites and natural and cultural monuments (Art. 3 NCHA); (2) nationwide conservation organisations may subject the proceedings to judicial review by way of an association appeal under Art. 12 NCHA.

N. 25 When applying the ISOS inventory, a distinction must be drawn: in the case of federal tasks, Art. 6 para. 2 NCHA applies — deviations from unimpaired preservation require equally or more important interests of national significance. In the case of cantonal tasks, the ISOS serves as a binding planning basis for authorities pursuant to Art. 6 para. 4 SPA; the cantons are obliged to take it into account, without the strict requirements of the NCHA applying directly. This distinction must be observed with particular care in land use planning (BGE 135 II 209 consid. 2.1–2.3).

N. 26 For projects in mire landscapes under para. 5, it is essential to first clarify whether the area concerned is listed in the Federal Council's inventory (Mire Landscape Ordinance). The perimeter is binding on authorities; building zone status affords no protection against the prohibition on alteration. Any proposed interventions must be limited to the available exceptions (protective installations; previous agricultural use). In case of doubt, a prior request to the competent specialist authority (FOEN) is advisable.

N. 27 The right of association appeal under Art. 12 NCHA applies even where no object listed in a federal inventory is affected — what is decisive is solely the existence of a federal task with a connection to nature and cultural heritage protection. Planning authorities and project developers must therefore reckon with appeals from nationwide conservation organisations even outside inventoried objects, as soon as a federal competence (e.g. telecommunications, second home law, building zone dimensioning) is engaged (BGE 139 II 271 consid. 9.3; BGE 142 II 509 consid. 2.5; BGE 131 II 545 consid. 2.2).

N. 28 Art. 78 para. 1 FC forms the constitutional basis for the entirety of cantonal heritage and townscape protection law. Owners of properties worthy of protection may challenge cantonal heritage protection regulations directly before the Federal Supreme Court by way of abstract norm review, where they call into question compatibility with the Granada Convention or with requirements of federal law (BGE 147 I 308 consid. 2–3; → Arts. 82 lit. b, 87 BGG).

Art. 78 BV

#Case Law

#Principles of Competency Demarcation

BGE 139 II 271 (22 May 2013) — Federal Tasks and Association Standing

Determination of federal tasks in cantonal decisions in the field of spatial planning. Building permits for second homes under federal second home regulation constitute federal tasks.

«According to Art. 78 para. 1 Cst., the cantons are primarily responsible for the protection of nature and cultural heritage; federal competencies exist only in the area of biotope and species protection (para. 4) and for the protection of moors and moorlands of national importance (para. 5). According to Art. 78 para. 2 Cst., however, the Confederation takes into account the concerns of nature and cultural heritage protection when fulfilling its tasks.»

BGE 147 I 308 (1 April 2021) — Cantonal Monument Protection Competencies

Confirmation of the primary responsibility of the cantons for monument protection and abstract judicial review of cantonal monument protection provisions.

«Art. 78 para. 1 Cst. establishes primary cantonal responsibility for the protection of nature and cultural heritage. The cantons are entitled and obligated to act legislatively in this area.»

#Federal Tasks under Art. 78 para. 2 Cst.

BGE 135 II 209 (25 March 2009) — ISOS Inventory and Federal Tasks

Significance of the Federal Inventory of Swiss Heritage Sites in cantonal planning tasks. Protection of townscapes when fulfilling federal tasks.

«The Confederation, its institutions and enterprises as well as the cantons ensure when fulfilling federal tasks that the traditional landscape and townscape, historical sites as well as natural and cultural monuments are protected and, where the general interest in them prevails, are preserved unimpaired.»

BGE 136 II 214 (22 February 2010) — Exceptional Permits as Federal Tasks

Granting of an exceptional permit for a mountain restaurant outside the construction zone. Federal task requires protection of the landscape and examination of alternatives.

«The granting of an exceptional permit within the meaning of Art. 24 SPA constitutes according to consistent case law a federal task within the meaning of Art. 2 para. 1 lit. b NCHA.»

BGE 131 II 545 (7 November 2005) — Mobile Phone Installations and Federal Tasks

Building permits for mobile phone installations constitute federal tasks even within the construction zone, as they fall under the Confederation's telecommunications competency.

«The granting of a building permit for a mobile phone installation is, even within the construction zone, a federal task within the meaning of Art. 2 NCHA, which is why the competent authorities are obligated to protect the objects protected under Art. 3 para. 1 NCHA.»

#Moorlands under Art. 78 para. 5 Cst.

BGE 127 II 184 (4 April 2001) — Demarcation of Moorlands

Fundamental judgment on the demarcation of the Pfäffikersee moorland. Legal criteria and procedures for moorland demarcation.

«Art. 78 para. 5 Cst., however, does not define what is to be understood as a moorland. This specification is made by the corresponding implementing provisions in the Nature and Cultural Heritage Protection Act (Art. 23b ff. NCHA).»

BGE 123 II 248 (15 April 1997) — Rothenthurm Moorland Protection

Direct applicability of Art. 78 para. 5 Cst. and permissible uses in moorlands. Obligation to restore unlawful constructions.

«Art. 24sexies para. 5 Cst. is directly applicable. The conversion undertaken by the appellant does not constitute a permissible use within the meaning of Art. 23d NCHA.»

BGE 138 II 281 (12 June 2012) — Moorland Demarcation and Infrastructure Construction

Zurich Highland Motorway and moorland protection. Inadmissibility of open-cut tunnels in moorlands. Correct demarcation of moorland perimeters.

«Infrastructure installations that do not fall under Art. 23d para. 2 lit. d NCHA are inadmissible within the moorland. This also applies to tunnels constructed by open-cut methods; these contradict the objectives of moorland protection.»

#Association Standing under Art. 12 NCHA

BGE 142 II 509 (16 June 2016) — Association Standing for Zonings

Standing of nature and cultural heritage protection associations to appeal against zonings under the revised Spatial Planning Act as federal tasks.

«New zonings that rely on Art. 15 of the revised SPA are to be qualified as federal tasks within the meaning of Art. 78 para. 2 Cst.»

BGE 144 II 218 (12 February 2018) — Association Standing for Plant Protection Products

Extension of association standing to abstract proceedings without concrete spatial reference in the review of plant protection products.

«The targeted review of plant protection products by the licensing authority constitutes a federal task within the meaning of Art. 78 para. 2 Cst. The right of appeal of nature protection organizations under Art. 12 NCHA does not require that the contested decision has a concrete spatial reference.»

#Cantonal Biotope Protection Competencies

BGE 133 II 220 (2 July 2007) — Hedge Protection and Competency Demarcation

Demarcation between federal law and cantonal law in the area of biotope protection. Hedges are not directly protected by federal law.

«Biotopes - notably hedges - are not directly protected under the provisions of federal law, but fall primarily under cantonal legislative competency.»

#Other Important Decisions

BGE 143 II 77 (30 November 2016) — Riparian Zone and Townscape Protection

Exceptional permit for constructions in the riparian zone of Lake Zurich in an ISOS object. Densely built areas in water protection.

Judgment 1C_375/2020 (5 May 2021) — Recent Developments

Model aircraft field and nature protection interests. Application of the principles of Art. 78 Cst. to newer infrastructures.

Judgment 1C_649/2012 (22 May 2013) — Second Home Construction

Concretization of federal tasks in the context of the Second Homes Act and its implementation by the cantons.