#1. Legislative History
N. 1 Art. 83 Federal Constitution was introduced in the course of the total revision of the Federal Constitution in 1999 and replaced the old provision of Art. 36ter old Federal Constitution (AS 1958 770). The provision codified the federal competence for national roads that had already existed since 1958, which originally went back to a constitutional amendment of 6 July 1958 (BBl 1958 I 1165, 1170). The constitutional article, together with the National Roads Act of 8 March 1960 (NSA, SR 725.11), forms the basis for the Swiss national roads network.
N. 2 The total revision of 1999 brought no material changes compared to Art. 36ter old Federal Constitution. The Federal Council's message on the new Federal Constitution stated that the federal competence for national roads should be adopted unchanged (BBl 1997 I 1, 252). The wording was merely modernised linguistically and systematically integrated into the section on Public Works and Transport.
N. 3 With the restructuring of fiscal equalisation and the division of tasks between the Confederation and the cantons (NFA) as of 1 January 2008, the Confederation assumed full responsibility for the national roads. This meant a disentanglement of the competences previously shared between the Confederation and the cantons (BBl 2001 2291, 2365). The cantons were relieved of their co-financing obligation, while the Confederation assumed sole responsibility for planning, construction, operation and maintenance.
#2. Systematic Classification
N. 4 Art. 83 Federal Constitution is located in Title 3 on the Confederation, Cantons and Communes, in Chapter 3 on the Competences of the Confederation and belongs to Section 7 on Public Works and Transport. The provision is in close systematic connection with Art. 82 Federal Constitution (Road traffic), Art. 84 Federal Constitution (Trans-alpine transit traffic) and Art. 86 Federal Constitution (Tax on fuels).
N. 5 The road competence of the Confederation under Art. 83 Federal Constitution is an exception to the principle of cantonal road construction sovereignty. While the cantons are generally responsible for all roads, Art. 83 Federal Constitution establishes an exclusive federal competence for national roads. This systematic position underlines the character of national roads as a federal task of national importance.
N. 6 Art. 83 Federal Constitution must also be read in the context of environmental law provisions, particularly Art. 73 Federal Constitution (Sustainability), Art. 74 Federal Constitution (Environmental protection) and Art. 78 Federal Constitution (Protection of nature and cultural heritage). Case law has repeatedly emphasised that national road projects require a comprehensive balancing of interests including all relevant constitutional goods (BGE 119 Ib 458 E. 6a; BGE 135 II 238 E. 3.2).
#3. Elements of the Provision / Normative Content
N. 7 Paragraph 1 establishes a joint responsibility of the Confederation and cantons for adequate road infrastructure "in all regions of the country". This guarantee obligation is of a programmatic nature and does not create subjective legal claims. The indeterminate legal concept "adequate" gives the authorities considerable discretion (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 1285).
N. 8 The wording "in all regions of the country" refers to the constitutional goal of basic services and is connected with Art. 2 para. 2 Federal Constitution (balanced development) as well as Art. 35 para. 2 Federal Constitution. It obliges the Confederation and cantons to consider peripheral regions in road planning (Griffel, Verkehrsverfassungsrecht, in: Müller [ed.], Schweizerisches Bundesverwaltungsrecht, Vol. IV, 2008, p. 27).
N. 9 Paragraph 2 sentence 1 establishes the exclusive federal jurisdiction for the national roads network. The concept "network" implies a connected system of roads of national importance. The concrete design is made by the network decree of the Federal Assembly according to Art. 11 NSA. The authorities are bound by this network decree (BGE 119 Ib 458 E. 6a).
N. 10 Paragraph 2 sentence 2 concretises the federal responsibility through the triad "construct, operate and maintain". This comprehensive competence includes planning, project development and financing (Häner, Strassenrecht, in: Müller [ed.], Schweizerisches Bundesverwaltungsrecht, Vol. IV, 2008, p. 180). Operation also includes traffic management and safety measures on national roads.
N. 11 Paragraph 2 sentence 3 establishes the full cost-bearing obligation of the Confederation. This financing responsibility flows from the exclusive substantive competence and distinguishes national roads from other infrastructure tasks with shared financing (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 3285).
N. 12 Paragraph 2 sentence 4 enables the transfer of tasks to "public, private or mixed entities". This delegation possibility allows public-private partnerships and the involvement of private actors, whereby responsibility remains with the Confederation. The transfer typically occurs through performance agreements according to Art. 49a NSA.
#4. Legal Consequences
N. 13 Art. 83 para. 1 Federal Constitution does not create an enforceable duty to expand the road network. The provision creates neither subjective rights nor a claim to certain expansion standards. Rather, it is a constitutional mandate that leaves the political authorities wide discretion.
N. 14 Art. 83 para. 2 Federal Constitution, however, establishes an exclusive federal competence with the following legal consequences: The Confederation alone is responsible for planning, construction, operation and maintenance of national roads. The cantons no longer have their own competences, but are obliged to participate in planning (Art. 11 ff. NSA). They can also be entrusted with operational tasks (Art. 49a NSA).
N. 15 The financing responsibility of the Confederation is comprehensive. The Confederation bears all costs for the creation and operation of national roads, including costs for land acquisition, expropriation compensation and replacement measures (Griffel, Verkehrsverfassungsrecht, 2008, p. 42 ff.). Financing occurs primarily through the special financing for road traffic according to Art. 86 Federal Constitution.
N. 16 The delegation possibility under para. 2 sentence 4 does not change the responsibility of the Confederation. Even when tasks are transferred, the Confederation remains responsible for proper fulfilment and must exercise supervision (Schaffhauser, Grundriss des schweizerischen Strassenverkehrsrechts, Vol. 1, 2nd ed. 2002, N 156).
#5. Controversial Issues
N. 17 Scope of the guarantee obligation under para. 1: In legal doctrine, it is disputed to what extent Art. 83 para. 1 Federal Constitution establishes a duty to expand road infrastructure. While some authors emphasise that no substantive requirements can be derived from the constitutional provision, other authors hold the view that more concrete obligations may arise from the interplay with other constitutional provisions (SG Komm. BV-Lendi, Art. 83 N. 24).
N. 18 Relationship to modal shift policy: The tension between road construction competence and modal shift policy under Art. 84 Federal Constitution is controversially discussed. One view in the literature states that modal shift policy is not constitutionally required outside the Alpine region, but can be based on the interplay of constitutional provisions. Other authors see more far-reaching restrictions on road construction competence in Art. 73 and 74 Federal Constitution (Sollberger, Konvergenzen und Divergenzen im Landverkehrsrecht, 2003, p. 89).
N. 19 Claim to expansion standards: It is disputed whether Art. 83 Federal Constitution creates a claim to a certain expansion standard for national roads. One view in the literature denies a claim to the highest possible expansion and safety standard. In contrast, Lendi (SG Komm. BV, Art. 83 N. 24) argues that claims for improvements could indeed exist in cases of existing capacity bottlenecks.
N. 20 Second tube at Gotthard: The constitutional admissibility of a second road tube at Gotthard was long disputed. While critics saw a violation of Art. 84 Federal Constitution (Alpine protection), supporters argued with the guarantee obligation under Art. 83 Federal Constitution. The Federal Supreme Court has not yet definitively clarified this question. The referendum of 28 February 2016 approved the second tube for safety reasons (Kern, Zwischen Alpenschutz und freiem Verkehr, AJP 2012, 1285 ff.).
#6. Practice Guidelines
N. 21 In the planning of national road projects, an early and comprehensive balancing of interests must be undertaken. The Federal Administrative Court requires a "comprehensive consideration of the overall situation" including all affected public and private interests (Judgment A-5466/2008 of 3.6.2009 E. 4.3; Judgment A-5843/2022 of 23.6.2023 E. 7.2).
N. 22 The environmental impact assessment (EIA) is mandatory for all major national road projects. Noise protection, air quality control and nature conservation must be particularly considered. The Federal Supreme Court has clarified that a complete EIA must be conducted even for constitutionally anchored infrastructure projects (BGE 119 Ib 458 E. 8d).
N. 23 When transferring operational tasks to third parties according to para. 2 sentence 4, clear performance agreements must be concluded. Responsibility for ensuring traffic safety and compliance with environmental regulations remains with the Confederation. FEDRO has issued corresponding guidelines (FEDRO Guideline 16010).
N. 24 Expropriations for national road projects are carried out under the Expropriation Act. It should be noted that land acquisition for real replacement for affected farmers counts as a public task and therefore does not trigger an agricultural right of pre-emption (BGE 90 II 62). In land readjustment procedures, cantonal procedures must be coordinated with national road law (BGE 97 I 715).