The legislation on rail transport, cableways, shipping, aviation and space travel is the responsibility of the Confederation.
51* With transitional provision
1The Confederation shall bear the principal burden of financing railway infrastructure.
2Railway infrastructure shall be financed from a fund. The following resources shall be allocated to the fund:
a maximum of two thirds of the revenue from the heavy vehicle charge under Article 85;
the revenue from the increase in value added tax under Article 130 paragraph 3bis;
2.0 per cent of the receipts from the direct federal taxation of private individuals;
2,300 million francs each year from the general federal budget; the indexation of this amount shall be regulated by law.
3The Cantons shall participate appropriately in the financing of railway infrastructure. The details shall be regulated by law.
4The law may provide for additional financing from third parties.
53* With transitional provision.
One half of the net proceeds of the consumption tax on aviation fuels and the surcharge on the consumption tax on aviation fuels shall be used for the following tasks and costs in connection with air traffic:
contributions towards environmental protection measures made necessary by air traffic;
contributions towards security measures to protect against unlawful acts against air traffic, and in particular against terrorist attacks and the hijacking of aircraft, insofar as such measures are not the responsibility of national authorities;
contributions towards measures to ensure a high technical level of safety in air traffic.
Art. 87 BV — Overview
Art. 87 BV gives the Confederation comprehensive legislative competence over important means of transport. The Confederation completely regulates railway traffic, cable cars, shipping as well as aviation and space travel. This federal competence means: Only the Confederation may enact laws on these means of transport.
Who is affected?
All companies and persons who use or operate these means of transport are affected. This includes railway companies such as the SBB, aviation companies such as Swiss, cable car operators in the mountains, shipping companies on lakes and rivers as well as space companies. Passengers and customers are also subject to federal law provisions.
What are the legal consequences?
The Confederation may regulate all important aspects: safety regulations, technical standards, licensing procedures and operating rules. Cantons may only act subsidiarily (supplementarily). Railway projects require federal plan approval instead of cantonal building permits. However, the cantons may still enforce monument protection or local police regulations, provided they do not contradict federal rules.
Concrete example:
If a mountain railway company wants to build a new chairlift, it must apply for a concession from the Federal Office of Transport. Cantonal construction law does not apply. However, the canton may require that landscape protection conditions be complied with, as long as operational safety is ensured.
N. 1 Art. 87 Cst. continues the long constitutional tradition of federal transport competences. The provision corresponds in content to Art. 26 old Cst. (railways), Art. 37 old Cst. (postal and telegraph services, with shipping) and Art. 37ter old Cst. (aviation). The total revision of the Federal Constitution in 1999 consolidated these scattered competence provisions in Art. 87 Cst. without making material legal changes (BBl 1997 I 370).
N. 2 Federal competence for railways has existed since the constitutional revision of 1872, that for aviation since 1921. Cable cars were expressly included in the Constitution in 1957. Space travel was only added with the total revision in 1999, reflecting technological development (BBl 1996 I 508).
N. 3 Art. 87 Cst. is found in Title 3 on Confederation, Cantons and Communes, in Chapter 2 on competences. The provision belongs to the competence allocations to the Confederation and systematically follows the general transport competences (Art. 82-86 Cst.). It must be read in context with → Art. 82 Cst. (road traffic), → Art. 83 Cst. (national roads), → Art. 84 Cst. (transalpine transit traffic) and → Art. 86 Cst. (tax on fuels).
N. 4 The competence is structured as comprehensive federal jurisdiction, which means that the Confederation may regulate both legislation and implementation. This distinguishes Art. 87 Cst. from mere framework competences. The cantons retain competences only where the Confederation has not enacted comprehensive legislation (→ Art. 3 Cst., → Art. 42 Cst.).
#3. Elements of the Legal Provision / Normative Content
N. 5Railway traffic encompasses all guided land transport, including trams, underground railways and rack railways. Federal competence extends to infrastructure, operation, safety regulations and licensing. The relevant legislation includes the Railways Act (RA, SR 742.101) and the Passenger Transport Act (PTA, SR 745.1).
N. 6Cable cars cover all cable-drawn passenger transport facilities, from funicular railways through aerial cable cars to ski lifts. The definition follows Art. 2 of the Cable Car Act (CCA, SR 743.01). The competence encompasses facilities used both for tourism and in public transport.
N. 7Shipping refers to commercial shipping on lakes and rivers. Private recreational boating is generally not included, except where federal safety regulations are concerned. The Inland Shipping Act (ISA, SR 747.201) specifies federal competence.
N. 8Aviation and space travel are mentioned together but differ considerably. Aviation encompasses all civil and military air traffic including infrastructure (airports, air traffic control). The Aviation Act (AviA, SR 748.0) comprehensively regulates the matter. Space travel is still little legislated; the Space Act is in preparation.
N. 9 Comprehensive federal competence means that the Confederation may regulate all aspects of the mentioned transport modes: technical standards, safety regulations, authorization procedures, liability issues, employment law for employees and environmental protection aspects. The cantons may only act subsidiarily.
N. 10 In the area of spatial planning, there is a duty of coordination between Confederation and cantons. Railway and aviation facilities are subject to the federal plan approval procedure, which replaces cantonal building permits. However, the substantive consideration of cantonal concerns remains guaranteed (BGE 122 II 103 consid. 3b).
N. 11 Federal competence does not completely exclude cantonal protective provisions. Monument protection may also apply to railway objects, provided operational safety is not affected (BGE 121 II 8 consid. 3). Likewise, cantonal police regulations remain applicable insofar as they do not contradict federal regulations.
N. 12Scope of shipping competence: Häfelin/Haller/Keller/Thurnherr (Federal State Law, 10th ed. 2020, N 1122) advocate a narrow interpretation covering only commercial shipping. Ehrenzeller (St. Gallen Commentary Cst., 4th ed. 2023, Art. 87 N 14) argues for a broader interpretation that also includes private large-scale shipping. Practice follows the narrower view.
N. 13Delimitation railway/tram: Waldmann (BSK Cst., 2nd ed. 2024, Art. 87 N 8) wants to subject trams to cantonal law insofar as they operate predominantly on roads. The prevailing doctrine (Tschannen/Zimmerli/Müller, Administrative Law, 4th ed. 2014, § 63 N 12) and practice classify all guided vehicles under railway law.
N. 14Competence for drones: The classification of unmanned aircraft is disputed. While Dettling-Ott (Aviation Law, 2020, p. 45) advocates comprehensive federal competence, Griffel/Rausch (Environmental Law, 2nd ed. 2021, N 856) see scope for supplementary cantonal regulations for local operations. The revised AviA of 2023 claims comprehensive federal regulation.
N. 15 For mixed uses in transport infrastructure (e.g., station shops), the delimitation between transport-related and transport-unrelated uses is decisive. Facilities up to 150 m² in stations are considered accessory and subject to railway law; larger projects may be subject to cantonal building law (BGE 122 II 265).
N. 16 Intermodal connection of different transport modes requires coordination of different authorization procedures. For park-and-ride facilities at stations, railway law (rail infrastructure), cantonal road law (access routes) and municipal building law (parking garage) interact. Early coordination between authorities is essential.
N. 17 In cross-border traffic, international law obligations take precedence over national competence allocations. State treaties on railway connections or aviation agreements may expand or restrict the Confederation's regulatory authority. Implementation, however, takes place within the framework of the constitutional order of competences.
BGE 122 I 70
25 February 1996
Comprehensive but not exclusive federal competence in aviation
The Federal Supreme Court held that the constitutional federal competence for aviation is comprehensive but not exclusive.
«Art. 37ter BV gives the Confederation comprehensive but not exclusive competence in the field of aviation. The cantons remain competent for legal matters that the Confederation has not conclusively regulated.»
BGE 146 II 384
25 June 2020
Federal competence for railway transport and capacity allocation
Confirms the comprehensive federal competence in railway transport and its scope in network usage concepts.
«According to Art. 87 BV, legislation on railway transport is a matter for the Confederation. Based on this competence, the Railway Act regulates the construction and operation of railways.»
BGE 122 II 103
24 February 1995
Railway approval procedure and transport safety
Specifies the federal competence in the approval procedure for railway infrastructure and its coordination with other modes of transport.
«The principle of economical land use generally justifies the most extensive possible parallel routing of two transport modes.»
BGE 122 II 265
8 July 1996
Railway approval procedure for railway station shops
Clarifies the scope of application of railway law for mixed uses in railway station facilities.
«If a shopping centre of considerable size is built into a railway station facility, this must also be approved in the railway approval procedure according to Art. 18 EBG.»
BGE 139 II 289
Wheelchair areas in railway vehicles
Shows the scope of federal legislation regarding technical requirements for railway vehicles.
«Railway vehicles must be constructed, operated, maintained and renewed according to the requirements of transport, environmental protection and in accordance with the state of technology.»
BVGE 2011/19
10 December 2009
Zurich Airport — Comprehensive landmark judgment on Art. 87 BV
The Federal Administrative Court clarifies in this groundbreaking judgment the scope of Art. 87 BV in the aviation sector.
«Legislation on railway transport, cable cars, shipping as well as aviation and space travel is a matter for the Confederation.»
BGE 121 II 8
24 February 1995
Protection of railway constructions
The relationship between federal law and cantonal monument protection for railway facilities.
«The federal Railway Act does not exclude that objects on railway property or railway constructions themselves may be placed under monument, antiquity or nature protection through cantonal legal measures.»
BGE 101 II 130
21 June 1975
Cable car companies and bondholder meetings
Shows the scope of application of federal law for cable car companies in corporate law.
«Art. 1185 OR does not apply to cable car companies, which must follow the ordinary procedure of Art. 1165 ff. OR for convening a meeting of bondholders.»
BGE 99 Ib 267
River shipping and expropriation law
Confirms the federal competence for inland navigation in the context of infrastructure projects.
«The Federal Assessment Commission is also competent to assess reclaim demands when the land transfer in question has been agreed upon with a so-called expropriation contract.»
2C_405/2021
14 June 2022
Operating licence for small cable cars — Recent case law
Current application of federal competence for smaller cable car installations.
A-2940/2017
26 November 2018
Cable cars — Modern administrative practice
Shows the continued application of Art. 87 BV in the cable car sector.