1Every person is equal before the law.
2No person may be discriminated against, in particular on grounds of origin, race, gender, age, language, social position, way of life, religious, ideological, or political convictions, or because of a physical, mental or psychological disability.
3Men and women have equal rights. The law shall ensure their equality, both in law and in practice, most particularly in the family, in education, and in the workplace. Men and women have the right to equal pay for work of equal value.
4The law shall provide for the elimination of inequalities that affect persons with disabilities.
Overview
Article 8 of the Federal Constitution guarantees the legal equality of all people in Switzerland. This fundamental right applies to all persons, regardless of their nationality, and binds authorities at all levels.
The fundamental right consists of four parts: The general principle of equality requires that like cases be treated alike and unlike cases be treated differently according to their differences. Unequal treatment is only permissible if it is based on objective grounds. Example: A municipality may charge higher taxes for luxury villas, but not different tax rates for men and women.
The prohibition of discrimination prohibits disadvantages based on particularly reprehensible characteristics such as gender, origin, religion or disability. These prohibitions apply more strictly than the general principle of equality. Those who discriminate must prove weighty reasons.
Gender equality obliges the state to ensure legal and factual equality between men and women. Particularly important: women and men have a right to equal pay for work of equal value. This right can be enforced in court.
The promotion of persons with disabilities obliges the legislature to eliminate disadvantages faced by persons with disabilities. This led to the Disability Equality Act, which prescribes accessibility and compensation for disadvantages.
Violations of legal equality invalidate state decisions. In cases of wage discrimination, those affected can claim back the missing amount for a maximum of five years. The courts strictly examine whether unequal treatment is justified.
Art. 8 FC protects against both direct discrimination and hidden disadvantages. The fundamental right primarily operates against the state, but also influences private law through legislation such as the Gender Equality Act.
Art. 8 FC — Equality before the law
#Doctrine
#1. Legislative History
N. 1 Art. 8 FC replaces Art. 4 of the former Federal Constitution (aFC) and carries forward the principle of equality before the law enshrined therein in a modernised, systematically developed, and substantively expanded text. The Federal Council described the new provision as an «updating» of existing constitutional law within a broader framework: the guarantee of equality before the law was extended from a Swiss privilege to «all people», which, according to the Message, corresponded to «lived constitutional reality» (BBl 1997 I 141). Substantively new elements are the express enumeration of discrimination criteria in para. 2, the codification of de facto equality in para. 3, and the legislative mandate concerning persons with disabilities in para. 4 (BBl 1997 I 142 ff.).
N. 2 In the preliminary draft of 1995 (VE 1995), the present Art. 8 FC was not yet provided for in this form. The explanatory report on the VE 1995 treated the prohibition of arbitrariness and the protection of good faith separately as derivations from Art. 4 aFC. Only in the course of the parliamentary deliberations did the provision receive its current four-part structure.
N. 3 The parliamentary deliberations were contentious. In the Council of States, rapporteur Inderkum moved to include «age» as a discrimination criterion in para. 2. In the National Council, minority motions demanded the explicit mention of sexual orientation (minority motion Thür Hanspeter), age (minority motion Gysin Remo), and a paragraph on the substantive equality of the sexes in all areas of life (minority motion Goll Christine). National Councillor Fischer-Hägglingen, by contrast, moved to dispense with an enumeration altogether, on the grounds that «every enumeration also produces an exclusion». The Federal Council (Koller Arnold) rejected a direct third-party effect of the equality claim for persons with disabilities: «Proposals providing that the equality of persons with disabilities should be realised through a direct right of action [...] would certainly not have been capable of achieving consensus.» In the end, agreement was reached on the word «namentlich» (in particular) as a signal that the list was non-exhaustive, and on the inclusion of «age», «way of life» and «mental disability» as new discrimination characteristics.
N. 4 The longest struggle concerned para. 3. The Council of States initially wished only to enshrine legal equality; Federal Councillor Koller recommended staying with the «original text» and avoiding new concepts, as they would «only give rise to discussions and controversies». Councillor of States Brunner advocated for de facto equality as a «modern conception» that already corresponded to the Federal Tribunal's practice under Art. 4 para. 2 aFC. In the conciliation procedure, the National Council's version (legal and de facto equality) ultimately prevailed; rapporteur Frick noted that this merely signified the «continuation of the current practice of the Federal Tribunal» and was «not a call for absolute levelling». The final votes took place on 18 December 1998.
#2. Systematic Classification
N. 5 Art. 8 FC is located in the second chapter of the second title («Fundamental Rights», Arts. 7–36 FC) and belongs to the classic defensive rights against state interference. It functions as a general principle of equal treatment (para. 1), as a qualified prohibition of discrimination (para. 2), as an equality guarantee with a legislative mandate (para. 3), and as an institutional constitutional mandate (para. 4). These four layers are functionally coordinated with each other, but are legally and dogmatically independent.
N. 6 ↔ Art. 7 FC (Human dignity): According to consistent case law, the prohibition of discrimination also encompasses aspects of human dignity, because it is linked to characteristics that constitute an essential component of the identity of the person concerned (BGE 126 II 377 E. 6a; BGE 129 I 217 E. 2.1). → Art. 9 FC (Prohibition of arbitrariness) remains applicable alongside Art. 8 para. 1 FC, but has no independent significance in cases of discrimination (BGE 129 I 217 E. 1.3). ↔ Art. 29 FC (General procedural guarantees): The prohibition of discrimination reinforces the duty to state reasons under Art. 29 para. 2 FC (BGE 129 I 232 E. 3.4). → Art. 35 FC (Binding effect of fundamental rights): Those who perform public duties are bound by Art. 8 FC, even where those persons are voters (BGE 129 I 217 E. 2.2.1). → Art. 36 FC (Restrictions on fundamental rights): Restrictions of the prohibition of discrimination require a qualified justification.
N. 7 In relation to international law, the prohibition of discrimination in Art. 8 para. 2 FC substantially corresponds in content to Art. 14 ECHR, but goes beyond it in one essential respect: Art. 14 ECHR is purely accessory (presupposing an infringement of another Convention right), whereas Art. 8 para. 2 FC may be invoked as an independent fundamental right. Protocol No. 12 to the ECHR, which contains an autonomous prohibition of discrimination, has not been ratified by Switzerland. Art. 3 ECHR (prohibition of degrading treatment) operates alongside Art. 8 para. 2 FC in cases of particularly severe discrimination.
#3. Normative Content
3.1 General Principle of Equality before the Law (Para. 1)
N. 8 Para. 1 is directed at all norm-setting and norm-applying authorities. Its command is: like cases must be treated alike, and unlike cases must be treated differently. A difference in treatment violates Art. 8 para. 1 FC if no reasonable ground can be found for it, or if it bears no reasonable relationship to the aim pursued (BGE 136 I 65). The applicable standard of review is freedom from arbitrariness: authorities enjoy a wide margin of discretion in the choice of criteria for differentiation, provided the distinction is objectively tenable (BGE 131 I 105 E. 3.1).
N. 9 In public employment relationships, the general principle of equality before the law also applies to matters of remuneration: a violation occurs where work of equal value is remunerated differently, without an objective ground — such as experience, training, length of service, or performance — justifying that differential (BGE 131 I 105 E. 3.1). However, the general principle of equality before the law gives rise only to a claim to correction of the inequality in an appropriate manner and within a reasonable period; it does not give rise to a direct claim to retroactive back-payment of wages. The latter claim exists only in the domain of equal pay under para. 3 (BGE 131 I 105 E. 3.6).
3.2 Prohibition of Discrimination (Para. 2)
N. 10 The prohibition of discrimination goes qualitatively beyond the general principle of equality before the law. Discrimination occurs where a person is treated unequally solely on account of membership of a particular group that has historically been, and in contemporary social reality tends to be, marginalised or treated as inferior (BGE 126 II 377 E. 6a; BGE 129 I 232 E. 3.4.1). Discrimination constitutes a qualified form of unequal treatment that is to be assessed as a degradation or exclusion, because it is linked to a characteristic that forms an essential and non-relinquishable — or only with great difficulty relinquishable — component of the identity of the person. This doctrinal content derives from Müller, Jörg Paul (Die Diskriminierungsverbote nach Art. 8 Abs. 2 der neuen Bundesverfassung, in: Zimmerli [ed.], Die neue Bundesverfassung, BTJP 1999/2000, p. 110) and was adopted by the Federal Tribunal.
N. 11 The enumeration of characteristics («in particular: origin, race, sex, age, language, social position, way of life, religious, ideological or political convictions, or bodily, mental or psychological disability») is, by the express intention of the legislature, non-exhaustive. The word «namentlich» (in particular) leaves room for analogical extensions through case law (BBl 1997 I 142; BGE 135 I 49 E. 4.3). This is uncontested in legal scholarship (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 711; Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1453).
N. 12 The prohibition of discrimination does not render reliance on a proscribed characteristic absolutely impermissible. Such reliance initially raises the «suspicion of an inadmissible distinction» (Kälin/Caroni, in: Kälin [ed.], Das Verbot ethnisch-kultureller Diskriminierung, ZSR-Beiheft 29, p. 78), which can only be rebutted by a qualified justification. The standard of review is therefore stricter than that applicable to the general principle of equality before the law (BGE 126 II 377 E. 6a; BGE 135 I 49 E. 6.1).
N. 13 The Federal Tribunal distinguishes between direct and indirect discrimination:
- Direct discrimination: A rule expressly links to a proscribed characteristic.
- Indirect discrimination: A rule is neutral on its face but disproportionately affects members of a protected group in its practical consequences, without objective justification (BGE 126 II 377 E. 6c; BGE 129 I 217 E. 2.1; BGE 135 I 49 E. 4.1). In individual cases the distinction can be difficult to draw (BGE 135 I 49 E. 4.3, referring to Rieder, Form oder Effekt?, 2003, pp. 100 ff.).
N. 14 The prohibition of discrimination applies not only vis-à-vis authorities in administrative proceedings, but also binds voters where they perform public duties — as in the case of votes on naturalisation applications (BGE 129 I 217 E. 2.2.1). In this context it combines with the right to a statement of reasons under Art. 29 para. 2 FC: negative naturalisation decisions taken at the ballot box are by their very nature incapable of being reasoned and are therefore unconstitutional (BGE 129 I 232 E. 3.4–3.7; BGE 129 I 217 E. 3.3).
N. 15 For the proof of discrimination in the case of secret, collective decisions (in particular ballot-box votes), relaxed requirements apply: circumstantial evidence suffices where direct proof is factually impossible (BGE 129 I 217 E. 2.2.3–2.2.4). The prohibition of discrimination can, where a disadvantage is rendered plausible, trigger a form of shift in the burden of proof; a complete reversal of the burden of proof has not yet been generally recognised in administrative law (cf. Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, pp. 693 f.).
3.3 Equality of Men and Women (Para. 3)
N. 16 Para. 3 contains three interrelated guarantees: (1) the principle of equal rights («men and women have equal rights»), (2) the mandate to achieve equality (legal and de facto equality, in particular in the family, in education, and in the workplace), and (3) the guarantee of equal pay («equal pay for work of equal value»). The guarantee of equal pay is a directly applicable, justiciable subjective right: where discrimination is established, there is a direct claim to remuneration free of discrimination, which may also be claimed retroactively within the five-year limitation period (BGE 131 I 105 E. 3.3–3.5; cf. also BGE 124 II 436 E. 10).
N. 17 The mandate to achieve equality binds the legislature: it must bring about de facto — not merely formal — equality of opportunity. The parliamentary agreement on «legal and de facto equality» was deliberate; it builds on the practice already developed by the Federal Tribunal under Art. 4 para. 2 aFC. The mandate is given concrete expression in particular by the Federal Act of 24 March 1995 on Gender Equality (GEA; SR 151.1), which provides for procedural facilitation in private employment law (Art. 6 GEA). In contrast to para. 1, para. 3 sentence 3 establishes a stricter regime of equal treatment that considerably restricts the margin of discretion of the authorities (BGE 131 I 105 E. 3.1).
3.4 Legislative Mandate concerning Persons with Disabilities (Para. 4)
N. 18 Para. 4 is a legislative mandate directed at the Confederation (→ Art. 190 FC), not a directly enforceable norm. It does not give rise to a direct entitlement to benefits on the part of individuals; the granting of benefits depends on legislative implementation (BGE 131 V 9 E. 3). The mandate was fulfilled by the Federal Act of 13 December 2002 on the Elimination of Disadvantages faced by People with Disabilities (DisA; SR 151.3), which expressly refers to the constitutional mandate (BGE 133 V 450). Federal Councillor Koller explicitly rejected a right of direct action against private parties during the parliamentary deliberations.
#4. Legal Consequences
N. 19 A violation of para. 1 or para. 2 by norm-setting authorities results in the annulment of the relevant provision in the context of abstract or concrete judicial review (→ Art. 190 FC: Federal Acts remain binding). A violation by norm-applying authorities results in the annulment of the decision and its referral back for a new decision.
N. 20 In the domain of equal pay (para. 3 sentence 3), there is a direct claim to back-payment within the five-year limitation period pursuant to Art. 128 no. 3 CO (BGE 131 I 105 E. 3.3 ff.). This claim is more far-reaching than that arising under the general principle of equality before the law (para. 1), which requires only correction «in an appropriate manner and within a reasonable period».
N. 21 The prohibition of discrimination reinforces the duty to state reasons and may thereby heighten procedural requirements: decisions linked to a proscribed characteristic require a qualified and substantiated justification. The absence of reasons violates Art. 8 para. 2 FC in conjunction with Art. 29 para. 2 FC (BGE 129 I 232 E. 3.4.1).
N. 22 Unlike the prohibition of arbitrariness under Art. 9 FC, a violation of the prohibition of discrimination in itself establishes a protected legal position for the purposes of standing to appeal. Upon an allegation of discrimination, an appeal to the Federal Tribunal is admissible, even without there being a substantive entitlement in the matter itself (BGE 129 I 217 E. 1.1).
#5. Contested Issues
N. 23 Doctrinal relationship between para. 1 and para. 2. It is disputed whether the prohibition of discrimination represents a quantitative or a qualitative difference vis-à-vis the general principle of equality before the law. The prevailing scholarship (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, pp. 684 ff.; Waldmann, Das Diskriminierungsverbot von Art. 8 Abs. 2 BV, 2003, pp. 327 ff.) advocates a qualitative difference: the prohibition of discrimination protects only groups exposed to a specific stereotype of degradation or marginalisation. Peters (in: Handbuch der Grundrechte, § 211, para. 7 ff.) and Rieder (Form oder Effekt?, 2003, pp. 52 ff.), by contrast, place greater emphasis on the effects of state action, leading to a broader application of indirect discrimination. The Federal Tribunal has endorsed the qualitative difference, but described its contours as «so far only outlined in rudimentary form» (BGE 135 I 49 E. 4.3).
N. 24 Open catalogue and sexual orientation. The legislature expressly declined to include sexual orientation in para. 2; instead, «way of life» was adopted as a compromise formula (National Councillor Deiss, AB 1998 NR Separatdruck). Whether sexual orientation falls within the scope of protection under «way of life» or through the open catalogue («in particular») has not been conclusively settled in legal scholarship. Rhinow/Schefer/Uebersax (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1456) affirm protection on the basis of an analysis of the protective purpose; Häfelin/Haller/Keller/Thurnherr (Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 771) are more cautious. Federal Tribunal precedents expressly establishing discrimination on grounds of sexual orientation under Art. 8 para. 2 FC are still lacking.
N. 25 Binding effect on private parties (third-party effect). Art. 8 FC binds primarily the State (→ Art. 35 para. 2 FC). A direct third-party effect was deliberately rejected by the legislature in respect of para. 4 (Koller). In the domain of para. 3 (equal pay), the guarantee has an indirect effect on private parties through the GEA. There is no general direct third-party effect of para. 2; Waldmann (Diskriminierungsverbot, pp. 327 ff.) advocates an indirect effect through the general clauses of private law, while Müller/Schefer (op. cit., p. 700) take a more critical view. The Federal Tribunal has so far left open the question of a direct third-party effect of Art. 8 para. 2 FC.
N. 26 Dependence on social assistance as a discrimination characteristic. Whether persons dependent on social assistance constitute a group protected by Art. 8 para. 2 FC («social position») has been expressly left open by the Federal Tribunal. The Court negated such a classification in its reasoning, but nevertheless found a violation of the prohibition of discrimination because the naturalisation requirement in question specifically affected a person with a disability as a member of an explicitly listed group (disability) (BGE 135 I 49 E. 5–6.3). Amstutz (Das Grundrecht auf Existenzsicherung, 2002, pp. 350 f.) had affirmed the entitlement to protection of persons dependent on social assistance; the Federal Tribunal deliberately left the question open.
#6. Practical Guidance
N. 27 Order of examination. Where a state act treats a person attributable to one of the characteristics listed in para. 2, it must first be examined whether there is a direct link to that characteristic. If absent, it must be examined whether there is indirect discrimination, i.e. whether members of the group are particularly affected in terms of the practical consequences of the measure. In both cases a qualified justification is required, the standard for which is stricter than that applicable under para. 1.
N. 28 Equal pay claims in public employment. Employees in public employment may assert equal pay claims under para. 3 sentence 3 retroactively for five years, without having had to miss an earlier time limit for challenge. By contrast, the claim under the general principle of equality before the law (para. 1) does not encompass retroactive remuneration, but only correction in an appropriate manner from the time of assertion (BGE 131 I 105 E. 3.6–3.7). In practice, reliance on para. 3 sentence 3 combined with the GEA is recommended.
N. 29 Naturalisation proceedings. Naturalisation decisions — including those taken by voters — are subject to the prohibition of discrimination and the duty to state reasons. Ballot-box votes on naturalisation applications are by their very nature incapable of being reasoned and are therefore unconstitutional (BGE 129 I 232; BGE 129 I 217). Negative decisions must be reasoned and must be subject to judicial review. Discrimination may be proved by circumstantial evidence — including statistical patterns in the voting results.
N. 30 Disability law and para. 4. No direct individual entitlements may be derived from the legislative mandate in para. 4; the DisA legislature has determined the framework. For questions of accessibility, integration, and protection from discrimination, the DisA must first be consulted. Under para. 2, reliance on protection from discrimination on grounds of disability may be considered where a state measure specifically disadvantages a person on account of their disability (BGE 135 I 49; BGE 133 V 450).
N. 31 Relationship to Art. 14 ECHR. Art. 14 ECHR operates only in an accessory manner (in conjunction with another Convention right). Art. 8 para. 2 FC, by contrast, may be invoked independently. In practice, in relevant constellations, Art. 14 ECHR should always also be invoked in conjunction with the applicable Convention right (in particular Art. 8 ECHR in cases of discrimination in family and immigration law), since the case law of the ECtHR shifts additional burdens of justification onto the State.
Case Law
#Legal Equality (Art. 8 para. 1 Const.)
#Principles of Legal Equality
BGE 129 I 161 of 19 March 2003
Legal equality in public employment regarding different remuneration for kindergarten substitutes.
The judgment clarifies the standard of review for Art. 8 para. 1 Const. in cases of administrative differentiation.
«The principle of legal equality and thus Art. 8 para. 1 Const. is violated when equivalent work in public employment is remunerated unequally. Within the limits of the prohibition on arbitrariness and the requirement of legal equality, authorities have the power to select from the multitude of conceivable criteria those that shall be decisive for the remuneration of civil servants.»
#Equal Pay Between the Sexes
BGE 131 I 105 of 16 February 2005
Equal pay in public employment between men and women; retroactive claim.
Landmark judgment on the enforcement of constitutional equal pay.
«The right to equal remuneration of men and women according to Art. 8 para. 3 Const. can be claimed within the five-year limitation period also for the period before filing the pay claim. From the general requirement of legal equality in Art. 8 para. 1 Const., however, only a right to correction of the unequal remuneration in an appropriate manner and within a reasonable time period arises.»
#Prohibition of Discrimination (Art. 8 para. 2 Const.)
#Discrimination Based on Origin
BGE 129 I 217 of 9 July 2003
Discriminatory ballot vote on naturalisation applications by persons from the former Yugoslavia.
Fundamental decision on direct discrimination based on origin.
«Discrimination within the meaning of Art. 8 para. 2 Const. exists when a person is treated unequally solely because of their membership in a particular group that has been historically and in present social reality tendentially marginalised or treated as inferior. Discrimination represents a qualified type of unequal treatment of persons in comparable situations, causing a disadvantage to a person that must be classified as degradation or exclusion.»
BGE 135 I 49 of 16 December 2008
Refusal of naturalisation due to social welfare dependency of a disabled applicant.
The judgment specifies the protection of disabled persons from indirect discrimination.
«The requirement of economic self-sufficiency for naturalisation affects persons with a physical, intellectual or psychological disability in a specific way. A disability can not only impair earning capacity, but also limit the possibilities of job searching and professional career. The prohibition of discrimination forbids excluding disabled persons from citizenship solely because of their disability or its consequences.»
#Indirect Discrimination
BGE 137 V 334 of 8 July 2011
Mixed method of disability assessment and possible indirect discrimination against women.
The judgment clarifies the requirements for proving indirect discrimination.
«The mixed method violates neither the right to respect for private and family life according to Art. 13 para. 1 Const. and Art. 8 ECHR nor the principles of equal treatment and prohibition of discrimination according to Art. 8 Const. Indirect discrimination would only exist if the regulation, in its actual effects, particularly disadvantages members of a group protected against discrimination without this being factually justified.»
#Discrimination in Education
BGE 147 I 73 of 27 July 2020
Equality principle and prohibition of discrimination in examinations; refusal of compensatory measures.
Current judgment on disability-appropriate examination conditions.
«Based on the equality principle, universities are generally obliged to establish conditions that are as uniform as possible for all candidates when conducting their examinations. If certain persons or groups of persons are thereby unjustifiably disadvantaged, there may exceptionally be an obligation to take compensatory measures. A violation of the equality principle or prohibition of discrimination only exists when the refusal of a compensatory measure could decisively influence the examination result.»
#Gender Equality (Art. 8 para. 3 Const.)
#Maternity Leave and Equality
BGE 144 I 113 of 4 July 2018
Holiday arrangements during maternity leave for teaching staff.
The judgment shows the scope of gender equality in labour law.
«The lower court's interpretation, according to which holidays that fall during maternity leave can be taken before or after in the non-teaching period, violates neither the requirement of equal treatment under the law (Art. 8 para. 1 Const.) nor the prohibition of discrimination (Art. 8 para. 2 Const.) or the requirement of gender equality (Art. 8 para. 3 Const.).»
#Retirement Age and Equal Rights
BGE 134 V 131 of 3 January 2008
Different retirement age in accident insurance after adjustment of the OASI retirement age.
The judgment addresses the constitutional limits of gender-specific differentiations.
«The OASI retirement age for women, raised gradually to the completed 64th year of age with the 10th OASI revision, finds no corresponding consideration in Art. 22 APIA - due to an obvious oversight by the legislature. Art. 8 para. 3 Const. requires legal and factual equality of men and women and thus also prohibits unjustified gender-specific differentiations to the detriment of men.»
#Disability and Disadvantage (Art. 8 para. 4 Const.)
#Benefits for People with Disabilities
BGE 133 V 450 of 1 January 2007
Practical life support as a measure to eliminate disadvantages of disabled persons.
Fundamental judgment on the specification of constitutional mandates in favour of disabled persons.
«Practical life support represents an additional and independent institute of assistance and serves to realise the constitutional mandate anchored in Art. 8 para. 4 Const., according to which the law provides for measures to eliminate disadvantages of the disabled. It includes neither direct nor indirect third-party assistance with the six daily life activities nor care nor supervision.»
BGE 131 V 9 of 30 September 2004
Obligation of disability insurance to provide electronic communication devices for children with Trisomy 21.
The judgment shows the limits of state benefit obligations for disability-related additional costs.
«Art. 8 para. 4 Const. obliges the legislature to provide for measures to eliminate disadvantages of the disabled. However, this provision does not establish a direct benefit claim for the individual. The granting of benefits depends on the legal framework, which leaves the legislature considerable discretion.»
#Tax Law and Legal Equality
#Tax Equality
BGE 136 I 65 of 25 September 2009
Dividend taxation and requirement of legal equality with different tax rates.
Important decision on tax equality for different types of income.
«The requirement of legal equality demands that equal things be treated equally according to their equality and unequal things unequally according to their inequality. Unequal treatment violates legal equality if no reasonable ground can be found for it or if it bears no reasonable relationship to the purpose pursued by the regulation.»
#Family Reunification and Reverse Discrimination
BGE 136 II 120 of 22 January 2010
Partial family reunification with naturalised Swiss and the problem of "reverse discrimination".
Landmark judgment on the application of the prohibition of discrimination in aliens law.
«Art. 8 Const. guarantees the requirement of legal equality and prohibits any kind of discrimination. Art. 14 in connection with Art. 8 ECHR establishes an accessory prohibition of discrimination. Different treatment of naturalised and native-born Swiss in family reunification can constitute discrimination based on origin if it is not factually justified.»
#Procedural Aspects
#Obligation to Give Reasons in Discriminatory Decisions
BGE 129 I 232 of 9 July 2003
Invalidity of an initiative to introduce ballot votes on naturalisation applications.
Fundamental judgment on the connection between prohibition of discrimination and obligation to give reasons.
«Negative naturalisation decisions are subject to the obligation to give reasons according to Art. 29 para. 2 Const. (right to be heard) in connection with Art. 8 para. 2 Const. (prohibition of discrimination). In ballot voting, reasoning that meets constitutional requirements is not possible. The initiative is therefore invalid because it seeks to introduce a procedure that systematically leads to violations of fundamental rights.»
#Standing to Appeal
BGE 147 I 1 of 1 January 2020
Non-re-election of an administrative judge for reasons of age; contestability of political decisions.
Current judgment on the justiciability of discrimination allegations in political decisions.
«The prohibition of discrimination must also be observed in electoral acts that are predominantly political in character. Unjustified disadvantage based on age or other prohibited characteristics can be unconstitutional even when it occurs within the framework of political discretion. The political character of a decision does not exempt from the obligation to respect fundamental rights.»