#1. Legislative history
No. 1 Art. 82 FC traces back to Art. 37bis of the former Federal Constitution, which was inserted into the Federal Constitution in 1958 (BBl 1957 II 585). The provision was intended to constitutionally anchor the comprehensive federal competence in motorised road traffic after the rapid development of automobile traffic made uniform nation-wide regulation necessary.
No. 2 The total revision of the Federal Constitution in 1999 adopted the provision with unchanged content (BBl 1997 I 1, 300). The constitutional legislator emphasised the necessity of comprehensive federal competence to guarantee road safety and smooth cross-border traffic.
No. 3 The principle of free use of roads in para. 3 has its roots in the medieval struggle against road tolls and was incorporated into the Constitution as a fundamental principle of modern transport policy (BBl 1957 II 590).
#2. Systematic classification
No. 4 Art. 82 FC stands in the 3rd Title on the Confederation, Cantons and Communes, 3rd Chapter on the division of tasks between the Confederation and the Cantons. The norm establishes exclusive federal competence in the area of road traffic law (Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, 10th ed. 2020, No 1098).
No. 5 The provision is to be distinguished from:
- → Art. 83 FC (Roads): regulates construction and maintenance of roads
- → Art. 85 FC (Heavy vehicle charge): special constitutional basis for the HVC
- → Art. 86 FC (Fuel consumption tax): financing of road infrastructure
- → Art. 88 FC (Footpaths and hiking trails): complementary cantonal competence
No. 6 In relation to fundamental rights, → Art. 10 para. 2 FC (freedom of movement) is particularly to be observed. Traffic restrictions must satisfy the requirements of → Art. 36 FC.
#3. Elements of the provision / Content of the norm
#a) Legislative competence over road traffic (para. 1)
No. 7 The term "road traffic" encompasses all aspects of traffic on public roads, namely:
- Traffic rules and signalisation
- Licensing of vehicles and drivers
- Road safety regulations
- Liability and insurance
- Traffic criminal law
No. 8 The federal competence is comprehensive and exclusive (Ehrenzeller/Schindler/Schweizer/Vallender, SGK BV, 4th ed. 2023, Art. 82 No 5). Only the regulatory authority for non-motorised traffic remains with the cantons, insofar as the Confederation has not issued regulations.
No. 9 New transport technologies such as automated driving or e-mobility also fall under federal competence, as the Federal Supreme Court has confirmed (Judgment 2C_847/2019).
#b) General supervision over roads of national importance (para. 2)
No. 10 "General supervision" does not grant the Confederation operational competence, but only a control function over cantonal road administration for roads of national importance (Rhinow/Schefer/Uebersax, Verfassungsrecht, 3rd ed. 2016, No 2847).
No. 11 "Transit roads" are roads that serve supra-regional traffic. The Federal Council may order their being kept open if this is in the national interest (BGE 122 I 279).
#c) Free use of roads (para. 3)
No. 12 The principle of free use prohibits direct usage charges for driving on public roads. Not covered are:
- Parking fees (temporary special use)
- Tunnel fees (special structures)
- Incentive charges (e.g. HVC according to Art. 85 FC)
- General traffic charges
No. 13 The Federal Assembly may authorise exceptions, which it has done for the motorway vignette (Art. 86 para. 2 FC) and the HVC (Art. 85 FC). However, the exceptions must remain narrowly limited.
#4. Legal consequences
No. 14 From para. 1 follows the exclusive legislative competence of the Confederation. Cantonal provisions on motorised road traffic are inadmissible insofar as they are not the enforcement of federal law.
No. 15 Para. 2 empowers the Confederation to designate transit roads and enforce their being kept open even against the will of the cantons. The cantons must comply with corresponding federal orders.
No. 16 Para. 3 establishes a directly applicable prohibition of road usage charges. Private parties may directly invoke this provision to challenge unlawful charges (BGE 118 Ia 46).
#5. Controversies
No. 17 The scope of federal competence for non-motorised traffic is disputed. While Müller/Schefer (Grundrechte, 4th ed. 2008, p. 456) favour a broad interpretation, the prevailing doctrine represents a restrictive interpretation (Ehrenzeller/Schindler/Schweizer/Vallender, SGK BV, Art. 82 No 6; Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, No 1099).
No. 18 The admissibility of city toll systems is controversially discussed. Biaggini (BV-Kommentar, 2nd ed. 2017, Art. 82 No 8) considers them admissible under certain conditions, while Griffel (Umweltrecht, 2019, § 12 No 45) views them as incompatible with Art. 82 para. 3 FC.
No. 19 The delimitation between prohibited usage charges and permissible incentive charges remains disputed. The Federal Supreme Court has developed a pragmatic line (BGE 125 I 182), which is partially criticised in legal doctrine (Vallender/Hettich, SJZ 2000, 241).
#6. Practice notes
No. 20 When examining cantonal traffic provisions, it must first be clarified whether they concern motorised or non-motorised traffic. Mixed regulations are fundamentally inadmissible.
No. 21 Municipalities that wish to introduce parking fees or traffic restrictions must be able to rely on a cantonal legal basis. Direct invocation of Art. 82 FC is insufficient.
No. 22 When introducing new mobility concepts (Mobility Pricing, Road Pricing), constitutional admissibility must be examined at an early stage. Genuine usage charges require a constitutional amendment, while incentive charges may under certain circumstances be based on Art. 74 FC (environmental protection).
No. 23 The advancing digitalisation of traffic (intelligent transport systems, automated driving) requires close coordination between the Confederation and the cantons. The federal competence according to Art. 82 para. 1 FC also encompasses these new technologies insofar as they concern road traffic.