Art. 85a BV permits the Confederation to levy a charge for the use of national roads. This provision is the constitutional basis for the well-known motorway vignette.
Who is affected? All owners of motor vehicles and trailers who want to drive on Swiss motorways and expressways. Heavy trucks are excluded, as they already have to pay the heavy vehicle charge.
What does the provision regulate? The article gives the Confederation the power (authority) to require a flat annual fee for motorway use. The Confederation does not have to exercise this power, but has created corresponding regulation with the National Roads Charge Act.
What legal consequences arise? Anyone who drives on the motorway without a valid vignette commits a contravention and must pay a substitute charge of 200 francs plus the vignette costs. The vignette must be correctly attached to the windscreen - merely carrying it in the car is not sufficient.
Concrete example: The Müller family wants to drive from Zurich to Bern by car. They must buy an annual vignette for 40 francs and stick it to the inside of the windscreen. If they only carry the vignette loose in the car or attach it to transparent film, they face a fine.
The revenue from the vignette is earmarked and may only be used for road tasks. An increase in the vignette price is subject to the optional referendum and can thus be rejected by the people at the ballot box.
N. 1 Art. 85a FC dates back to the referendum of 26 February 1984, when the introduction of a national road charge (motorway vignette) was adopted together with the heavy vehicle fee (BBl 1983 I 445). The constitutional basis was initially incorporated into the old Federal Constitution as Art. 36quater oldFC and transferred materially unchanged to Art. 85a FC with the total revision (BGE 136 II 337 E. 2.1).
N. 2 The provision creates an earmarked charge to finance the national roads. The constitutional legislature intended to establish a user fee that takes account of the polluter pays principle and contributes to covering infrastructure costs (BBl 1982 III 505). The charge was deliberately conceived as a flat annual fee to ensure simple enforcement.
N. 3 Art. 85a FC is systematically classified in the section on federal competences in the field of road traffic (Section 3: Roads). The norm is closely related to:
→ Art. 83 FC (National roads): defines federal competence for national roads
→ Art. 85 FC (Heavy vehicle fee): regulates the performance-related heavy vehicle fee (LSVA)
→ Art. 86 FC (Petroleum tax and other charges): determines the use of revenues for road tasks
N. 4 The national road charge is part of the constitutional system of road financing. Together with the petroleum tax (Art. 86 FC) and the heavy vehicle fee (Art. 85 FC), it forms the third pillar of road traffic financing (Ehrenzeller/Schindler/Schweizer/Vallender, St. Gallen Commentary FC, 4th ed. 2023, Art. 85a N. 2).
N. 5Charge obligation: The constitutional norm establishes federal competence to levy a charge. The Confederation is not obliged to exercise this competence, but has done so with the National Road Charge Act (NSAG, SR 741.71).
N. 6Subject of charge: The charge covers "motor vehicles and trailers". The term encompasses all motorised vehicles within the meaning of road traffic law as well as their trailers. The precise definition is made at the legislative level (Art. 2 NSAG).
N. 7Use of national roads: The charge is linked to actual or potential use of the national roads. A differentiation according to frequency of use is not provided for under constitutional law (flat rate).
N. 8Heavy traffic exception: Vehicles subject to the heavy vehicle fee under Art. 85 FC are exempt from the national road charge. This systematic demarcation prevents double charging (Waldmann/Belser/Epiney, BSK FC, 2nd ed. 2024, Art. 85a N. 5).
N. 9 The constitutional norm grants the Confederation comprehensive legislative competence to design the national road charge. This includes:
Determination of chargeable vehicle categories
Setting of the charge amount
Regulation of exceptions and exemptions
Enforcement modalities including control and sanction mechanisms
N. 10 The revenues from the national road charge are to be used in a targeted manner for tasks and expenditure in connection with road traffic according to Art. 86 para. 3 lit. a FC. Use for general federal purposes is constitutionally excluded (JAAC 70.1 of 3 August 2005).
N. 11Flat rate vs. performance-based design: Academic literature discusses whether the constitutional conception as a flat rate is mandatory. The prevailing opinion (Ehrenzeller/Schindler/Schweizer/Vallender, St. Gallen Commentary FC, Art. 85a N. 6; Waldmann/Belser/Epiney, BSK FC, Art. 85a N. 8) holds that the historical and systematic interpretation speaks for a flat rate solution. A minority (Griffel, in: Environmental Law in Practice 2015, 234) considers a kilometre-based design to be constitutionally permissible.
N. 12Amount of the charge: It is disputed what constitutional limits exist for the charge amount. Rhinow/Schefer/Uebersax (Swiss Constitutional Law, 3rd ed. 2016, N. 2854) demand orientation to the equivalence principle. Häfelin/Haller/Keller/Thurnherr (Swiss Federal Constitutional Law, 10th ed. 2020, N. 2341) emphasise the political scope for manoeuvre of the legislature.
N. 13 The national road charge is levied in the form of an annual vignette (currently CHF 40). The vignette must be properly affixed to the vehicle; merely carrying it is not sufficient (BGE 112 IV 102).
N. 14 Manipulations to the vignette constitute the offence of counterfeiting official tokens of value under Art. 245 SCC. This also applies to affixing to transparent film for the purpose of multiple use (BGE 141 IV 336).
N. 15 When revising the charge amount, the optional referendum under Art. 141 para. 1 lit. c FC must be observed. Increases to the vignette flat rate are thus subject to potential referendum, which factually limits the political scope for action.
#Constitutional Foundations of Financial Equalisation
BGE 136 II 337 E. 2.1 of 19 April 2010
Date: 19 April 2010
Headnote: Art. 85a BV, like other financial equalisation provisions, constitutes a constitutional competence basis for federal legislative implementation.
Relevance: The Federal Court treats Art. 85a BV as part of the constitutional framework for earmarked levies and their use.
«Art. 36 quater of the old Federal Constitution (aFC), adopted in the referendum of 20 February 1994 (AS 1994 1096), gave the constitutional legislator the competence to levy a performance- or consumption-related charge (LSVA) on heavy traffic. This replaces the previous flat-rate heavy traffic charge [...] Art. 36 quater aFC was transferred materially unchanged to Art. 85 BV in the course of the total revision of the Federal Constitution.»
BGE 135 I 43 E. 1.2 of 27 November 2008
Date: 27 November 2008
Headnote: Financial equalisation systems affect municipal autonomy without, however, creating a protected sphere of autonomy.
Relevance: Shows the demarcation between constitutional financial equalisation competences and municipal self-government.
«The municipalities covered by intermunicipal financial equalisation can invoke municipal autonomy; however, there is no protected sphere of autonomy.»
BGE 150 II 321 E. 4 of 2 April 2024
Date: 2 April 2024
Headnote: Cases of double taxation can cause distortions in the National Financial Equalisation, but do not establish constitutional claims by individual cantons.
Relevance: Illustrates the complex interactions between tax law and the financial equalisation system.
«Distortions in the National Financial Equalisation (NFA) that can be caused by cases of double taxation are to be accepted, insofar as they remain within limits and do not lead to objectionable results.»
The Federal Court case law on Art. 85a BV is limited, as the provision primarily constitutes a competence basis for the legislative implementation of financial equalisation. The available case law deals with Art. 85a BV mainly in the context of general constitutional principles regarding financial equalisation systems, without specific constitutional disputes having developed regarding the provision itself. Practical application occurs primarily at the statutory and regulatory level through the Financial Equalisation Act and its implementing provisions.