1The Confederation shall legislate on the protection of animals.
2It shall in particular regulate:
the keeping and care of animals;
experiments on animals and procedures carried out on living animals;
the use of animals;
the import of animals and animal products;
the trade in animals and the transport of animals;
the killing of animals.
3The enforcement of the regulations is the responsibility of the Cantons, except where the law reserves this to the Confederation.
Art. 80 — Animal Protection
#Overview
Art. 80 Federal Constitution regulates federal competence for animal protection and originates from a popular initiative of 1973 (Schärmeli/Griffel, BSK BV, Art. 80 N. 1). The Constitution empowers the Confederation to enact provisions for the protection of animals.
Paragraph 1 grants the Confederation comprehensive legislative competence for animal protection. This has been exercised through the Animal Protection Act (TSchG) and the Animal Protection Ordinance (TSchV). The Confederation may regulate all aspects of animal protection, not only the areas mentioned in paragraph 2.
Paragraph 2 lists important areas of regulation: animal husbandry and care, animal testing, use of animals, importation of animals, animal trade and transport, as well as the killing of animals. In animal testing, research interests must be weighed against animal suffering (BGE 135 II 384 E. 4.3). Neither freedom of research nor animal protection takes precedence.
Paragraph 3 generally transfers enforcement of animal protection provisions to the cantons. However, the Confederation may reserve enforcement competences for itself, which it has done for animal testing and international trade.
The Constitution protects the welfare of animals, but not their lives (BBl 2003 674). This position is disputed in legal doctrine (Schärmeli/Griffel, BSK BV, Art. 80 N. 43). In cases of repeated violations of animal protection provisions, the cantons may confiscate animals and impose indefinite animal keeping bans (Urteil 2C_122/2019 E. 3).
Example: A farmer keeps his pigs under poor conditions. The cantonal veterinary service may confiscate the animals and issue an animal keeping ban to the keeper based on Art. 80 Federal Constitution and the TSchG. At the same time, the keeper may be prosecuted under criminal law.
Art. 80 — Animal Welfare
#Doctrine
#1. Legislative History
N. 1 Art. 80 FC traces its origins to Art. 25ter of the Federal Constitution of 1874 (aFC), which was adopted in the popular vote of 2 February 1973. That provision obliged the Confederation for the first time to legislate on the protection of animals. The constitutional foundation was a prerequisite for the enactment of the Animal Welfare Act of 9 March 1978 (aAWA; AS 1981 562), which entered into force on 1 July 1981.
N. 2 The Federal Council's dispatch of 9 February 1977 on the Animal Welfare Act (BBl 1977 I 1075) described the duty of protection as a comprehensive state obligation: animals were to be protected «for their own sake» from unnecessary pain, suffering, and harm, not merely as the property of their keepers. This teleological approach influenced the entire interpretive history of the provision and is reflected in the dispatch on the revision of the Animal Welfare Act of 2002 (BBl 2003 657, 663).
N. 3 In the course of the total revision of the Federal Constitution in 1999, Art. 25ter aFC was carried over without substantive change as Art. 80 FC; the dispatch on the new Federal Constitution (BBl 1997 I 1) expressly characterised the transfer as a purely editorial update with no change to the normative content. Art. 80 FC is therefore identical to the predecessor provision in both its legislative competence dimension (para. 1–2) and its enforcement dimension (para. 3).
N. 4 The current Animal Welfare Act of 16 December 2005 (AWA; SR 455) and the Animal Welfare Ordinance of 23 April 2008 (AWO; SR 455.1) are based directly on Art. 80 FC. According to the dispatch, the new AWA brought no «tightening» compared with the aAWA, but rather a modernisation and systematic revision (BBl 2003 657, 665).
#2. Systematic Classification
N. 5 Art. 80 FC is situated in Chapter 4 («Environment and Spatial Planning», Art. 73–80 FC) of the section on social goals and state objectives of the Federal Constitution. Its systematic placement alongside environmental protection (→ Art. 74 FC), water protection (→ Art. 76 FC), and nature conservation (→ Art. 78 FC) makes clear that animal welfare is conceived as part of the Confederation's overall ecological responsibility.
N. 6 Art. 80 FC constitutes a legislative competence of the Confederation with a delegation of enforcement to the cantons (para. 3). According to Errass, SGK BV, Art. 80 N. 10, this is an exclusive federal competence (exhaustively regulated under federal law in the area of animal welfare in the proper sense), leaving the cantons no independent legislative competence in the field of animal welfare. Schärmeli/Griffel, BSK BV, Art. 80 N. 12, draw a distinction: in the core area of animal welfare, the Confederation's competence is exclusive in nature; however, the cantons retain their police authority (Polizeihoheit) and may issue safety-police regulations for the protection of humans from animals (→ BGE 136 I 1 E. 3). The Federal Supreme Court established this demarcation between animal welfare law (federal competence) and safety-police law (cantonal competence) as binding in BGE 136 I 1.
N. 7 The provision relates to further constitutional provisions that complement animal welfare: → Art. 120 para. 2 FC (dignity of living beings in the field of genetic engineering), → Art. 74 FC (environmental protection), → Art. 79 FC (fishing and hunting). According to Federal Supreme Court case law, the «dignity of living beings» within the meaning of Art. 120 para. 2 FC constitutes a general constitutional principle that must be taken into account in interpreting Art. 80 FC beyond the field of genetic engineering (BGE 135 II 384 E. 3.1).
N. 8 Art. 80 FC does not confer subjective rights on individuals. The provision is structured as an objective federal competence; animals themselves do not hold constitutional fundamental rights. Steiger/Schweizer, SGK BV, Art. 80 N. 6, emphasise that Art. 80 FC nevertheless goes beyond the mere conferral of competence and produces a substantive protective direction that is binding on the interpretation of implementing legislation.
#3. Normative Content
3.1 Para. 1: Comprehensive Legislative Competence
N. 9 Art. 80 para. 1 FC confers on the Confederation the competence to enact provisions «on the protection of animals». The concept of «protection» is to be understood broadly: it encompasses not only protection from pain, suffering, and harm (Art. 1 AWA), but also protection from behavioural disorders and the safeguarding of the animal's dignity. Errass, SGK BV, Art. 80 N. 8, derives from this that the Confederation may regulate every aspect of human interaction with animals, provided that a protective concern underlies the regulation.
N. 10 In principle, all animals in the biological sense are subject to protection. The AWA limits its immediate protection within its scope of application to vertebrates (Art. 1 AWA), but enables the Federal Council to extend protection to invertebrates (Art. 2 para. 3 AWA), meaning that the constitutional framework of competence has not been fully exhausted.
3.2 Para. 2: Non-Exhaustive Catalogue of Subject Matters
N. 11 Art. 80 para. 2 FC contains a non-exhaustive illustrative catalogue of subject matters («in particular»). The enumeration serves both as a clarification and as a historical signal: the particular emphasis on animal experimentation (lit. b) and the killing of animals (lit. f) underscores the political significance of these areas during the 1973 constitutional revision.
N. 12 Keeping and care of animals (lit. a): The Confederation regulates the species-appropriate keeping and care of all animals. Based on Arts. 3 ff. AWA and Arts. 2 ff. AWO, detailed minimum standards exist. Violations may lead to a ban on keeping animals under Art. 23 AWA; seizure and bans on keeping animals must in every case satisfy the principle of proportionality (→ Art. 5 para. 2 FC) (Judgment 2C_576/2021 of 8 September 2022, E. 4.3, 9.1).
N. 13 Animal experimentation and interventions on living animals (lit. b): Animal experiments may only be carried out under Art. 17 AWA if they are limited to the indispensable minimum. Art. 80 para. 2 lit. b FC, together with the freedom of research (→ Art. 20 FC), forms the constitutional framework for the authorisation of animal experiments. Neither the animal welfare interest nor the freedom of research takes precedence (BGE 135 II 384 E. 4.3; BGE 135 II 405 E. 4.3.1; discussed in detail at N. 19–21).
N. 14 Use of animals (lit. c): The use of animals in circuses, for sporting purposes, as therapy animals, or in agriculture falls under this regulatory power. The concept is broad and encompasses all forms of purposive use of animals by humans.
N. 15 Import of animals and animal products (lit. d): This federal competence overlaps with foreign trade constitutional law (→ Art. 101 FC) and food law. Its primary purpose is to prevent the importation of goods from establishments operated in breach of animal welfare standards and to prevent the spread of disease.
N. 16 Trade in animals and animal transport (lit. e): The Confederation regulates minimum requirements for transports and the commercial trade in animals. Arts. 13 ff. AWA and Arts. 149 ff. AWO contain corresponding provisions.
N. 17 Killing of animals (lit. f): The killing of animals is covered in its entirety, including slaughter, killing in the context of pest control, and euthanasia. Arts. 177 ff. AWO regulate the slaughter rules; the slaughter of animals without prior stunning (ritual slaughter) is in principle prohibited under Art. 21 AWA, which the Federal Supreme Court has characterised as a proportionate restriction of freedom of religion (→ Art. 15 FC).
3.3 Para. 3: Cantonal Enforcement Competence
N. 18 Art. 80 para. 3 FC establishes a delegation of enforcement to the cantons in accordance with the model of federal enforcement federalism (→ Art. 46 FC). The cantons implement federal animal welfare law as their own task; the Confederation may reserve enforcement competences for itself, as it has done notably in the area of animal experimentation (Federal Food Safety and Veterinary Office, FSVO) and import controls (Federal Office for Customs and Border Security). The Federal Supreme Court confirmed in Judgment 2C_958/2014 of 31 March 2015 that the cantons enjoy considerable discretion in organising their enforcement authorities.
#4. Legal Consequences
N. 19 Art. 80 FC as such does not produce direct legal effects vis-à-vis private individuals; the legal consequences arise from the implementing legislation enacted on the basis of Art. 80 FC (AWA, AWO). The key instruments at the statutory level include: the ban on keeping animals (Art. 23 AWA), seizure (Art. 24 AWA), criminal provisions (Arts. 26 ff. AWA), and the authorisation requirement for animal experiments (Art. 17 AWA).
N. 20 The constitutional balancing of interests between freedom of research and animal welfare in the context of animal experimentation was elaborated by the Federal Supreme Court in two leading judgments issued simultaneously but substantively independent of each other: In BGE 135 II 384 E. 4.3 (Dossier 2C_422/2008, «Neocortex Case», severity level 2), the Federal Supreme Court held that freedom of research and animal welfare are of equal rank, and that the task of balancing interests in the individual case was delegated to the administration. In BGE 135 II 405 E. 4.3.1 (Dossier 2C_421/2008, «Perceptual Learning Case», severity level 3), the Federal Supreme Court confirmed these principles for a parallel case and additionally emphasised that the duty to balance interests applies without restriction even to applications concerning fundamental life processes («basic research»). The difference lies in the established severity level: in BGE 135 II 384 severity level 2 was confirmed; in BGE 135 II 405 the Federal Supreme Court considered severity level 3 (or possibly 2) to be appropriate. In both cases, the animal welfare interest prevailed owing to the particularly close proximity of non-human primates to humans.
N. 21 The balancing of interests in the context of animal experiments must be carried out on the basis of the following elements: (1) weighting of the expected gain in knowledge (seriousness of the experimental purpose, clinical applicability, timeframe); (2) weighting of animal pain and suffering (severity level 0–3); (3) consideration of the dignity of living beings and the hierarchical position of the animal in the animal order (BGE 135 II 384 E. 4.6; BGE 135 II 405 E. 4.3.4). The cantonal animal experimentation committee must be involved as an independent specialist body; its assessment may only be departed from for compelling reasons (BGE 135 II 384 E. 3.4).
N. 22 The seizure of animals and the imposition of a ban on keeping animals constitute, according to settled case law, serious interferences with the guarantee of property (→ Art. 26 FC) and economic freedom (→ Art. 27 FC). They presuppose substantial deficiencies in the keeping of animals; proportionality must be rigorously examined (Judgment 2C_576/2021 of 8 September 2022, E. 4.3, 9.1; Judgment 2C_122/2019 of 6 June 2019, E. 4.2–5). An indefinite ban on keeping animals is permissible in cases of repeated violations (Judgment 2C_122/2019, E. 5.3).
#5. Contested Issues
N. 23 Nature of the competence: exclusive or concurrent? Between Errass, SGK BV, Art. 80 N. 10, who takes the view that the federal competence is inherently exclusive, and Schärmeli/Griffel, BSK BV, Art. 80 N. 12, who draw a distinction, there exists a methodological nuance: the latter acknowledge the federal competence as exclusive in the core area of animal welfare, but accept a residual cantonal safety-police competence. The Federal Supreme Court drew the boundary in BGE 136 I 1 E. 3: the competence to enact provisions «for the direct protection of humans from dangerous dogs falls within the jurisdiction of the cantons». This demarcation based on the protective purpose (animal welfare = Confederation; protection of humans from animals = cantons) is the prevailing view, but is not uncontested: Steiger/Schweizer, SGK BV, Art. 80 N. 15, point to overlaps that are particularly apparent in the regulation of dog-keeping.
N. 24 Dignity of living beings as an interpretive standard for Art. 80 FC: Whether the «dignity of living beings» within the meaning of Art. 120 para. 2 FC also applies as a general interpretive principle to Art. 80 FC is disputed. Steiger/Schweizer, SGK BV, Art. 80 N. 8, answer in the affirmative on the ground that Art. 120 para. 2 FC recognises dignity as a presupposed, pre-existing constitutional principle. The Federal Supreme Court aligned with this view in BGE 135 II 384 E. 3.1:
«The observance of the dignity of living beings is expressly mentioned only in the competence provision concerning genetic engineering in the non-human sphere, but is there presupposed as something existing. Account can only be taken of something that exists.»
Saladin/Schweizer, Kommentar aBV, N. 119 to Art. 24novies aFC, had already argued this with respect to the predecessor provision. Schärmeli/Griffel, BSK BV, Art. 80 N. 45 ff., agree in outcome but emphasise that the dignity of living beings does not confer subjective rights on animals.
N. 25 Basic research and animal experimentation: A specific controversy arose over the question of whether animal experiments in basic research, without proof of clinical applicability, are permissible per se. The applicant researchers in the proceedings leading to BGE 135 II 384 and BGE 135 II 405 argued that basic research fulfils the requirement of «final indispensability» per se and that no weighing of the gain in knowledge is required. The Federal Supreme Court expressly rejected this view in both judgments: a weighing of the gain in knowledge is always required; there is no precedence of the research interest (BGE 135 II 384 E. 4.3; BGE 135 II 405 E. 4.3.1). Zenger, Das «unerlässliche Mass» an Tierversuchen, Beihefte zur ZSR Nr. 8, 1989, pp. 42 ff., had already argued for an equal balancing of interests prior to these Federal Supreme Court decisions; the Federal Supreme Court expressly relied on his analysis.
N. 26 Cantonal Primates Initiative: The question of whether a cantonal popular initiative may introduce fundamental rights for non-human primates was the subject of BGE 147 I 183 (1C_105/2019 of 16 September 2020). The Federal Supreme Court declared the Basel popular initiative «Fundamental Rights for Primates» invalid: cantonal constitutions cannot establish rights that conflict with federal law. The initiative would have resulted in a de facto restriction of animal experiments going beyond federal law, thereby encroaching on the federal competence under Art. 80 para. 2 lit. b FC. The decision illustrates the reach of the exclusive federal competence even vis-à-vis cantonal constituent powers.
#6. Practical Notes
N. 27 Demarcation between animal welfare law and safety-police law in relation to dogs: Authorities wishing to enact regulations on «dangerous dogs» must observe the boundary of competences: animal welfare provisions (torture breeding, keeping conditions) fall within the federal competence and are exhaustively regulated in the AWA. Safety-police provisions (prohibitions on acquisition, breeding, and importation for the protection of humans) fall within the cantonal police authority, but must respect federal animal welfare law (BGE 136 I 1 E. 3). The Confederation has not introduced a separate constitutional provision for the «protection of humans from animals» (cf. the rejected parliamentary initiative, BBl 2009 3547).
N. 28 Authorisation of animal experiments: Applicants must conduct a concrete balancing of interests for each animal experiment and demonstrate that the gain in knowledge of the specific experiment (not the overarching project) justifies the animal pain and suffering involved. The gain in knowledge must be weighed according to timeframe, clinical applicability, and experimental purpose. The standard of scrutiny intensifies with increasing severity of the burden placed on the animals and with the proximity of the experimental animals to humans (BGE 135 II 384 E. 4.4–4.6; BGE 135 II 405 E. 4.3.2–4.3.4). The cantonal animal experimentation committee must be involved at an early stage as a specialist body.
N. 29 Ban on keeping animals and seizure: Enforcement authorities are bound by the principle of proportionality when ordering bans on keeping animals and effecting seizures (Judgment 2C_576/2021 of 8 September 2022, E. 4.3, 9.1–9.2). Milder measures (time-limited prohibitions, conditions, inspections) must be examined before an indefinite ban on keeping animals is imposed. However, repeated violations may justify an indefinite ban (Judgment 2C_122/2019 of 6 June 2019, E. 5.3). Seizure presupposes substantial neglect or entirely unsuitable keeping conditions (Art. 24 para. 1 AWA).
N. 30 Cantonal enforcement organisation: Art. 80 para. 3 FC affords the cantons considerable discretion in organising enforcement. However, they must ensure compliance with federal law requirements and the existence of adequate supervisory structures. The Federal Supreme Court reviews compliance with federal law with full cognition (Art. 95 BGG); the proportionality of enforcement measures is likewise reviewed with full cognition (Judgment 2C_576/2021 of 8 September 2022, E. 9.1).
Cross-references: → Art. 5 para. 2 FC (proportionality); → Art. 20 FC (freedom of research); ↔ Art. 74 FC (environmental protection); → Art. 79 FC (fishing and hunting); → Art. 120 para. 2 FC (dignity of living beings); → Art. 190 FC (applicable law).
#Case Law
#Animal Testing
BGE 135 II 384 E. 4.3-4.6 (7 October 2009): Animal testing with non-human primates The constitutional competence provision of Art. 80 para. 2 lit. b Cst. regarding animal testing represents a balancing of interests already undertaken by the legislature between freedom of research and animal protection, in which neither one nor the other interest takes precedence. The administration must undertake this balancing of interests in individual cases.
«The provisions on animal testing are an expression of both freedom of research (Art. 20 Cst.) and the constitutional interest of animal protection (Art. 80 para. 2 lit. b Cst.). [...] Therefore, the administration has been entrusted with the task of undertaking this balancing of interests. In doing so, neither freedom of research nor animal protection takes precedence. Rather, both are equal in rank.»
BGE 135 II 405 E. 4.3 (7 October 2009): Balancing of interests in animal testing Art. 80 para. 2 lit. b Cst. always requires a concrete balancing of interests between the intended gain in knowledge and the pain and suffering of animals. With non-human primates, their particular proximity to humans and the dignity of creatures must be taken into consideration.
«Art. 61 para. 3 lit. d former AniWO requires for the permissibility of an animal test a balancing of interests between the intended gain in knowledge and the associated pain and suffering. [...] In the balancing of interests, the particular proximity of non-human primates to humans and the dignity of creatures must be taken into consideration.»
#Dog Ownership and Breeding Regulations
BGE 136 I 1 E. 3 (13 January 2010): Cantonal jurisdiction for security police dog regulations The cantons are entitled, based on their police authority, to enact security police-motivated breeding regulations for dogs with increased potential for danger. Art. 80 Cst. does not stand in the way of this, since the Confederation has limited its competence to the protection of animals as such.
«The competence to enact provisions for the direct protection of humans from dangerous dogs falls within the jurisdiction of the cantons.»
BGE 136 I 1 E. 4 (13 January 2010): Breed types as differentiation criteria Cantonal provisions that rely on breed types for regulating acquisition, breeding and immigration bans for dogs with increased potential for danger do not violate the principle of equality before the law. The cantons have wide scope for design in this area.
«Cantonal provisions that rely on breed types for regulating an acquisition, breeding and immigration ban for dogs with increased potential for danger do not violate the principle of equality before the law.»
#Animal Husbandry and Animal Protection Enforcement
Urteil 2C_122/2019 E. 3 (6 June 2019): Animal keeping ban for repeated violations In cases of repeated violations of animal protection provisions, an indefinite animal keeping ban may be imposed. The cantons are responsible for the enforcement of animal protection provisions and must take appropriate enforcement measures.
«In cases of repeated contraventions of legal provisions and official orders, an animal keeping ban for an indefinite period may be lawful.»
Urteil 2C_576/2021 E. 4 (8 September 2022): Confiscation and animal keeping ban The confiscation of animals and the ordering of an animal keeping ban are serious interference with the guarantee of property and economic freedom, which are only justified in cases of significant deficiencies in animal husbandry. Proportionality must be strictly examined.
«The confiscation of animals constitutes a serious interference with the constitutionally guaranteed freedom of property and is only permissible when significant public interests exist.»
#Breeding and Torture Breeding
Urteil 7H 19 141 (Kantonsgericht Luzern) (25 March 2020): Breeding ban for genetic burden A breeding ban due to detrimental heredity is only to be ordered in cases of significant genetic burden. As a variant of the animal keeping ban, the breeding ban is permissible in cases of incapacity of the keeper if this is the only way to ensure animal protection-compliant husbandry.
«A breeding ban due to detrimental heredity is only to be ordered in cases of significant genetic burden.»
#Enforcement Organisation
Urteil 2C_958/2014 (31 March 2015): Cantonal enforcement of federal law The cantons are generally responsible for the enforcement of animal protection provisions, insofar as the Confederation has not expressly reserved enforcement competences for itself. In doing so, they must comply with the requirements of federal law and create appropriate organisational structures.
«The cantons are responsible for the enforcement of the provisions, insofar as the law does not reserve enforcement to the Confederation.»
#Recent Developments
Urteil 2C_541/2023 (26 November 2024): Current enforcement practice Recent case law shows an increased emphasis on animal welfare in the interpretation of animal protection provisions. Enforcement authorities are required to incorporate developments in animal husbandry and new scientific knowledge about animal welfare into their decisions.
«Animal protection is a dynamic area of law that evolves with societal ideas and scientific knowledge.»