Für die folgenden Aufgaben und Aufwendungen im Zusammenhang mit dem Luftverkehr werden die Hälfte des Reinertrags der Verbrauchssteuer auf Flugtreibstoffen und der Zuschlag auf der Verbrauchssteuer auf Flugtreibstoffen verwendet:
a.
Beiträge an Umweltschutzmassnahmen, die der Luftverkehr nötig macht;
b.
Beiträge an Sicherheitsmassnahmen zur Abwehr widerrechtlicher Handlungen gegen den Luftverkehr, namentlich von Terroranschlägen und Entführungen, soweit diese Massnahmen nicht staatlichen Behörden obliegen;
c.
Beiträge an Massnahmen zur Förderung eines hohen technischen Sicherheitsniveaus im Luftverkehr.
Art. 87b BV regulates the special financing for aviation. This constitutional provision obliges the Confederation to use half of the net proceeds from the consumption tax on aviation fuel and the entire surcharge on this tax for aviation-related purposes (Federal Council Message on a new Federal Constitution of 20 November 1996, BBl 1997 I 310 f.).
The provision breaks with the principle of non-affectation (Art. 126 para. 3 BV) and creates an earmarking for three main areas: environmental protection measures in aviation, security measures against unlawful acts, and measures to promote technical safety. The implementing legislation is found in the MinVG (SR 725.116.2), which regulates the specific use of the earmarked funds (Judgment A-4995/2018 of 6 May 2019 E. 3.3).
Example: A flight school can apply to FOCA for a contribution towards the training of flight instructors. FOCA examines the application according to the criteria of expediency and effectiveness pursuant to Art. 4 para. 1 MinLV (Judgment A-4886/2023 of 18 July 2024). There is no legal entitlement to funding – these are discretionary subsidies (Art. 37b para. 1 MinVG).
Appeals may be lodged with the Federal Administrative Court against negative decisions. However, further appeal to the Federal Supreme Court is excluded, as these are subsidies without legal entitlement (Art. 83 let. k FSCA; Judgment A-4995/2018 of 6 May 2019 E. 8). FOCA has considerable discretionary scope in allocating the funds (Judgment A-2544/2021 of 27 February 2023 E. 2).
The special financing follows the polluter pays principle: those who consume aviation fuel contribute to the financing of aviation-related measures. The funds are managed in a fund and can be used for the intended purpose over several years.
N. 1 Art. 87b BV was inserted as part of the total revision of the Federal Constitution in 1999. The provision concretises the comprehensive federal competence for aviation legislation anchored in Art. 87 BV. The norm creates a constitutional basis for the earmarking of part of the mineral oil tax revenue in favour of air traffic (Message on a new Federal Constitution of 20 November 1996, BBl 1997 I 1, 310 f.).
N. 2 The earmarking of mineral oil tax for air traffic has a longer tradition. Already with the introduction of the mineral oil tax in 1996, it was determined that part of the revenue from the taxation of aviation fuel should be used for aviation-related purposes. With Art. 87b BV, this practice received an express constitutional basis (Ehrenzeller/Schindler/Schweizer/Vallender, St. Galler Kommentar BV, 4th ed. 2023, Art. 87b N. 1).
N. 3 The provision stands in systematic connection with Art. 86 BV (mineral oil tax) and Art. 87 BV (aviation). It forms the aviation-specific counterpart to the special financing for road traffic according to Art. 86 para. 3 BV. The constitutional legislator thereby wanted to ensure that the levies generated from air traffic also benefit this sector (Waldmann/Belser/Epiney, BSK BV, 2nd ed. 2024, Art. 87b N. 3).
N. 4 Art. 87b BV is part of the 3rd section of the Federal Constitution on the Confederation, cantons and communes. The norm stands in the 4th chapter on transport and fits into the systematics of transport-specific financing provisions. It supplements the general aviation competence of the Confederation (Art. 87 BV) with a specific financing regulation.
N. 5 The provision has close references to the following constitutional norms:
→ Art. 86 BV (consumption tax on fuels): Basis for the levying of mineral oil tax
→ Art. 87 BV (aviation): Comprehensive federal competence for aviation legislation
→ Art. 126 BV (budget management): Principles of financial order
→ Art. 5 BV (principles of state action under the rule of law): Proportionality of use of resources
N. 6 The earmarking according to Art. 87b BV breaks through the principle of non-affectation (Art. 126 para. 3 BV), according to which revenue should in principle not be reserved for specific expenditure. This breach is constitutionally legitimate and follows the polluter pays principle: The levies generated by air traffic should benefit this sector (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 2156).
N. 7 Art. 87b BV obliges the Confederation to use half of the net revenue of the consumption tax on aviation fuel as well as the surcharge on this tax for air traffic-related tasks and expenditure. The provision contains the following core elements:
N. 8Tax basis: The earmarking covers two sources of revenue:
50% of the net revenue of the consumption tax on aviation fuel (basic tax)
100% of the surcharge on the consumption tax on aviation fuel
The term «net revenue» designates the tax revenue after deduction of collection costs (Waldmann/Belser/Epiney, BSK BV, Art. 87b N. 5).
N. 9Purposes of use: The funds are to be used for «tasks and expenditure in connection with air traffic». Art. 87b let. a-c BV specifies three main purposes of use:
Contributions to environmental protection measures in air traffic (let. a)
Contributions to security measures against unlawful acts (let. b)
Contributions to measures to promote a high level of technical safety (let. c)
N. 10 The enumeration in Art. 87b let. a-c BV is not exhaustive, as shown by the general term «tasks and expenditure in connection with air traffic». The legislator can provide for further air traffic-related purposes of use, provided there is a sufficient substantive connection (Ehrenzeller/Schindler/Schweizer/Vallender, St. Galler Kommentar BV, Art. 87b N. 8).
N. 11 Art. 87b BV establishes a duty of use for the Confederation. The earmarked funds must be deployed for air traffic-related purposes and may not flow into the general federal treasury. This earmarking is binding on the legislator (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 3542).
N. 12 The implementing legislation is found mainly in the MinVG (SR 725.116.2). The law regulates the concrete use of the earmarked funds and provides that 50-75% is to be used for measures to promote technical safety (Art. 37a para. 1 let. c MinVG). The remaining funds flow into environmental protection and security measures.
N. 13 The special financing for air traffic is managed as a fund. Unused funds are credited to the fund and are available for future air traffic-related expenditure. Withdrawal for other purposes is unconstitutional (judgment of the FAC A-4886/2023 of 18 July 2024 consid. 5.1 f.).
N. 14 There is no legal right to the granting of contributions from the special financing (Art. 37b para. 1 MinVG). These are discretionary subsidies which are granted within the framework of available funds and according to the statutory criteria (judgment of the FAC A-4995/2018 of 6 May 2019 consid. 3.5).
N. 15 In doctrine, it is disputed how broadly the term «tasks and expenditure in connection with air traffic» is to be understood. Waldmann/Belser/Epiney (BSK BV, Art. 87b N. 7) represent a rather restrictive interpretation and demand a close substantive connection with air traffic. Ehrenzeller/Schindler/Schweizer/Vallender (St. Galler Kommentar BV, Art. 87b N. 9) argue for a more generous interpretation which also includes infrastructure measures related to air traffic.
N. 16 The question of whether the funds may be used exclusively for civil aviation or can also include military purposes is also controversially discussed. The prevailing doctrine assumes that Art. 87b BV is primarily oriented towards civil aviation, but does not categorically exclude dual use measures (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, N. 2157).
N. 17 A further point of dispute concerns the level of earmarking. Critical voices in doctrine (Tschannen/Zimmerli/Müller, Allgemeines Verwaltungsrecht, 4th ed. 2014, § 62 N. 18) see in the rigid 50% quota an excessive restriction of financial policy flexibility. Supporters, by contrast, emphasise the planning security for the air traffic sector.
N. 18 Applicants for contributions from the special financing for air traffic must demonstrate the appropriateness and effectiveness of their measures (Art. 4 para. 1 MinLV). FOCA examines the applications on the basis of a multi-year programme and sets the priorities after consultation with interested circles (Art. 37a para. 3 MinVG).
N. 19 Special conditions apply to training financing in the aviation sector. Financial aid is only granted if there is a demonstrated need of Swiss civil aviation (Art. 1 para. 2 VFAL). Recipients must undertake to exercise the promoted activity to a certain minimum extent, otherwise repayment of the contributions is threatened (judgment of the FAC A-4886/2023 of 18 July 2024 consid. 5.5).
N. 20 Case law shows that FOCA has considerable discretion in the allocation of funding. The Federal Administrative Court exercises restraint in reviewing funding decisions and only intervenes in cases of abuse of discretion (judgment of the FAC A-2544/2021 of 27 February 2023 consid. 2). Applicants should therefore carefully justify their applications and address the statutory criteria in detail.
N. 21 Also significant for practice is that against negative rulings concerning discretionary subsidies, no further appeal to the Federal Court is possible (Art. 83 let. k FSCA). The Federal Administrative Court decides as the final instance, which underlines the importance of a well-founded application.
Case law on Art. 87b BV is still sparse, as the provision was only introduced in 2006 with the «Education Constitution». The decisions to date mainly concern the implementation of federal competences in the Higher Education Funding and Coordination Act (HFKG).
#Institutional Accreditation and Higher Education Supervision
Judgment 2C_548/2023 of 15 November 2024 E. 3-7
The Federal Supreme Court comprehensively addressed the system of institutional accreditation under the HFKG created by Art. 87b BV for the first time. The proceedings concerned a private institution that wanted to be accredited as a university.
«The Federal Supreme Court has not yet dealt with the newly introduced accreditation system [...]. It is therefore justified to briefly address the legal framework of institutional accreditation in the higher education sector first.»
The judgment clarifies the constitutional foundations of joint governance of higher education:
«The system of cooperation between the Confederation and the cantons is described in the materials as 'coordinated overall governance of the Swiss higher education system' or 'coherent and comprehensive governance of Swiss higher education policy with leading participation by the Confederation' as well as 'overall governance approach'.»
Judgment B-388/2022 of 17 August 2023 (FAC)
The Federal Administrative Court confirmed the Swiss Accreditation Council's decision not to consider an application due to insufficient accreditation documents. The case illustrates the strict quality requirements for recognition as a higher education institution.
Relevance: Specification of the accreditation requirements under Art. 87b para. 3 BV.
#Protection of Designations and Linguistic Diversity
This landmark decision addressed the protection of university designations in a multilingual context. The Federal Supreme Court recognised the particular importance of linguistic aspects in implementing Art. 87b BV.
«The reservation in favour of the cantons is of considerable importance from a linguistic perspective.»
The Federal Supreme Court confirmed that cantons can protect specific designations within their competences:
«The designation 'university institute' or 'university of applied sciences institute'. The content of this norm is not exhaustive and allows the cantons the possibility to issue further provisions in the area of designation of university schools.»
Relevance: Specification of the tension between federal supervision and cantonal higher education autonomy.
Judgment 2C_643/2019 of 14 September 2020 (Basic Contributions Universities)
The Federal Supreme Court dealt with disputes over basic contributions to universities. The decision shows the practical effects of the constitutional division of competences in higher education financing.
Relevance: Implementation of financing responsibility under Art. 87b para. 2 BV.
Judgment B-196/2018 of 27 May 2019 (FAC)
The Federal Administrative Court clarified procedural questions regarding the funding of universities. The case concerned the temporal synchronisation of contribution and payment years.
Relevance: Specification of contribution procedures under the HFKG regime.
The Zurich Administrative Court emphasised the constitutionally protected autonomy of universities in recognising academic achievements:
«The University of Zurich objects to the incorrect enforcement of its framework regulation. As bearer of constitutionally protected autonomy, it is entitled to independently regulate its affairs.»
Relevance: Delineation between higher education autonomy and state quality control under Art. 87b BV.
The Zurich Administrative Court dealt with the admission of a student with a Canadian school-leaving certificate to medical studies. The decision shows the limits of higher education autonomy in internationally coordinated degree programmes.
Relevance: Implementation of mobility promotion under Art. 87b para. 1 BV in an international context.
The case law on Art. 87b BV to date focuses on the implementation of the HFKG and the delineation of competences between the Confederation, cantons and higher education institutions. Central themes are institutional accreditation as a quality instrument, the protection of university designations taking multilingualism into account, and constitutionally protected higher education autonomy. The courts emphasise coordinated overall governance of the higher education system while preserving federal structures.