#1. Legislative History

N. 1 Art. 81 Cst. goes back to Art. 23 old Cst. and was adopted largely unchanged in the total revision of 1999. The Federal Council Message of 20 November 1996 on a new Federal Constitution (BBl 1997 I 1, 270) characterises the provision as a «general clause for all areas of infrastructure», which grants the Confederation a «comprehensive subsidiary competence for public works». The formulation «in the interest of the country as a whole or of a large part of it» was taken over from the old Federal Constitution and serves as a barrier against purely local or regional projects.

N. 2 Historically, the norm emerged in the 19th century as a reaction to the necessity of large infrastructure projects such as railway lines, alpine transversals and watercourse corrections, which exceeded the financial and organisational possibilities of individual cantons. The Linth correction (1807-1823) is considered the first significant public work under federal leadership (Hauser, Vom öffentlichen Werk des Bundes zur interkantonalen Anstalt, 2011, p. 45 ff.).

#2. Systematic Classification

N. 3 Art. 81 Cst. stands in Title 3 on «Confederation, Cantons and Communes» under Chapter 3 «Tasks of the Confederation and the Cantons». The norm functions as a subsidiary general clause to the more specific infrastructure competences in Art. 82-93 Cst. (transport and energy). It is an expression of cooperative federalism: the Confederation can erect, operate or support the erection of works by third parties.

N. 4 In relation to cantonal competences, the principle of subsidiarity applies (→ Art. 5a Cst.). Only works that lie «in the interest of the country as a whole or of a large part of it» fall under federal competence. The delimitation from purely cantonal or regional works occurs according to material criteria: significance for the whole of Switzerland, coordination needs, financial scope.

#3. Elements of the Provision

N. 5 Public works: The concept is disputed. Traditional doctrine advocates a narrow understanding of the concept: one view in the literature quotes Burckhardt approvingly, according to whom for the work characteristic «particularly the corporeality of the facility, its connection to the ground, the artificial character as well as the alteration or restoration of a natural state» are decisive. In contrast, Lendi/Vogel, SG Komm. BV, Art. 81 N. 23 advocate for a broader understanding of the concept, «which also includes non-ground-bound facilities such as satellites or virtual facilities».

N. 6 In the interest of the country as a whole or of a large part of it: This formulation delimits federal competence from cantonal and communal works. Covered are works of supra-regional significance that affect several cantons or are of national strategic importance. Practice shows a generous interpretation for transport, energy and communication infrastructures (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1089).

N. 7 Erect, operate or support: The Confederation has three options for action: (1) Own erection and operation by the federal administration or federal institutions; (2) Operation of existing works; (3) Financial or organisational support of private or cantonal carriers. The choice of form of action lies within the political discretion of the Confederation.

#4. Legal Consequences

N. 8 Art. 81 Cst. grants the Confederation a facultative competence («may»). It establishes neither an obligation to act nor subjective rights of private persons to the erection of specific works. The provision authorises the Confederation to legislate on the respective works (→ Art. 164 para. 1 Cst.) and to approve the necessary credits (→ Art. 167 Cst.).

N. 9 When erecting public works, the Confederation has the right of expropriation (→ Art. 26 Cst.). The exercise is governed by the Federal Act on Expropriation (ExpropA). A prerequisite is always that the concrete work actually lies in the public interest.

N. 10 Financing occurs from general federal funds or through special financing. When supporting cantonal or private works, subsidies, loans or guarantees come into consideration. The modalities are to be regulated in special legislation (Ruch, Umwelt – Boden – Raum, SBVR VI, 2010, p. 234 ff.).

#5. Disputes

N. 11 Concept of works: The main point of dispute concerns the scope of the concept of «public works». The traditional position (Burckhardt, Kern) restricts it to physical, ground-bound facilities. The modern view (Lendi/Vogel) wants to include immaterial infrastructures such as data networks or satellite systems. Biaggini, Komm. BV, Art. 81 N. 3 takes a mediating position: The concept of works should be interpreted in a development-open manner, but must have a reference to physical infrastructures.

N. 12 Delimitation from special competences: The relationship of Art. 81 Cst. to sectoral competences is disputed. While Aubert/Mahon, Art. 81 N. 4 assume strict subsidiarity, others advocate parallel applicability, provided that the factual prerequisites of both norms are fulfilled (Auer/Malinverni/Hottelier, Vol. I, § 892).

#6. Practice Notes

N. 13 When planning public works, it should be clarified early whether the prerequisites of Art. 81 Cst. are fulfilled or whether more specific constitutional foundations are applicable. The choice of legal basis has effects on the procedure, financing and supervision.

N. 14 For political feasibility, proof of the «interest of the country as a whole or of a large part of it» is central. This typically occurs through cost-benefit analyses, traffic forecasts or strategic significance proofs. The Federal Council's message must substantiate the supra-regional significance.

N. 15 When supporting cantonal or private works, the subsidy law requirements (Subsidies Act) and the principles of economic freedom (→ Art. 27 Cst.) must be observed. Public-private partnerships require careful legal structuring, particularly regarding risk allocation and supervision.

Art. 81 FC has so far rarely been directly applied in Federal Supreme Court case law. In practice, the provision is implemented through special legislation, which is why most disputes rely on these sectoral regulations. Nevertheless, fundamental principles can be derived from the general case law on federal tasks and public works.

#Concept of Federal Task

BGE 139 II 271 E. 9.1 of 22 May 2013
Fundamental for delimiting federal tasks in the constitutional law sense. The decision confirms that federal tasks are not only those that the Confederation performs itself, but also those in which it acts in a coordinating or supporting capacity.

«What is to be understood by the performance of a federal task within the meaning of Art. 78 para. 2 FC is set out in a non-exhaustive manner in Art. 2 para. 1 NPA: This includes in particular the planning, construction and modification of works and installations by the Confederation, such as buildings and installations of the federal administration, national roads or buildings and installations of the Swiss Federal Railways.»

BGE 138 II 281 E. 4.4 of 12 June 2012
Implementation in the area of transport infrastructure: Even cantonal planned transport facilities may constitute federal tasks if essential federal interests are affected.

«It must be examined more closely whether a federal task exists. [...] If a federal task therefore exists, an expert opinion on the impairment of the Federal Landscape and Natural Monument Inventory object would have had to be obtained without fail.»

#Aviation Infrastructure

BVGE 2011/59 of 1 December 2011
The designation of mountain airstrips as a federal task clarifies the broad interpretation of the concept "public works" within the meaning of Art. 81 FC.

«A mountain airstrip is to be classified as a transport facility and leads to an environmentally and spatial planning relevant use of the corresponding area.»

#Delimitation from Cantonal Competences

Case law shows that the competence under Art. 81 FC is subsidiary to more specific constitutional provisions. For transport infrastructure, Art. 82-87 FC apply primarily, for energy infrastructure Art. 89-90 FC.

The absence of direct case law on Art. 81 FC to date is explained by the fact that the Confederation exercises its infrastructure competences primarily on the basis of special legislation and thereby relies on more concrete constitutional provisions. Art. 81 FC serves primarily as a catch-all competence for public works of national importance that are not otherwise regulated.