#1. Legislative History
N. 1 Art. 88 Cst. represents the successor provision to Art. 37quater old Cst., which was inserted into the Federal Constitution in 1979. The constitutional article formed the basis for the Federal Act on Pedestrian and Hiking Trails (FAPT) of 4 October 1985. The constitutional revision of 1999 adopted the substance of the predecessor provision largely unchanged.
N. 2 With the acceptance of the direct counter-proposal to the cycling initiative on 23 September 2018, Art. 88 Cst. was extended to include cycling networks (BBl 2018 7891). This extension led to the adoption of the Federal Act on Cycling Paths (FACP) of 18 March 2022, which realises the equal treatment of pedestrian, hiking and cycling paths at constitutional level.
#2. Systematic Classification
N. 3 Art. 88 Cst. is located in the 3rd section of the Federal Constitution on Confederation, Cantons and Communes under Title 4 «Environment and Spatial Planning». The provision is in close systematic connection with the transport constitution (Art. 82 ff. Cst.), but differs through its focus on non-motorised transport.
N. 4 The provision shows cross-connections to other constitutional norms: → Art. 75 Cst. (spatial planning) requires the appropriate and economical use of land, which includes the provision of path networks for non-motorised transport. ↔ Art. 78 Cst. (protection of nature and cultural heritage) stands in tension with the construction of new paths, which must be considered in the interpretation of Art. 88 Cst. (Griffel, Verkehrsverfassungsrecht, 2008, p. 45).
#3. Elements of the Offence / Normative Content
N. 5 Pedestrian and hiking trails: The FAPT defines pedestrian paths as connections that primarily serve pedestrian traffic (Art. 2 FAPT). Hiking trails, in contrast, are pedestrian connections that primarily serve recreation (Art. 3 FAPT). The distinction is relevant for the requirements for construction and maintenance.
N. 6 Cycling paths: With the constitutional revision of 2018, cycling paths were made equal to pedestrian and hiking trails. The FACP defines these as traffic routes intended for bicycles and other muscle-powered vehicles that are separated as far as possible from motorised traffic.
N. 7 Network character: The term «networks» implies connected, continuous path connections. Isolated path sections do not meet the requirements of Art. 88 Cst. (Keller/Hauser, Verfassungsgrundlagen des Langsamverkehrs, 2006, p. 23).
#4. Legal Consequences
N. 8 Basic competence (para. 1): The Confederation receives competence to establish principles, but not for comprehensive regulation. The cantons remain responsible for the concrete planning, construction and maintenance of path networks. The federal legislator has made use of this competence through the enactment of the FAPT and the FACP.
N. 9 Support and coordination task (para. 2): The Confederation can act subsidiarily by financially supporting or coordinating cantonal and private measures. This power is optional («may») and expressly preserves cantonal competences.
N. 10 Duty to give consideration (para. 3): The Confederation is subject to a qualified duty to give consideration in the performance of its tasks. The replacement obligation upon abolition of paths concretises this duty. In BGE 130 III 182 E. 5.5.1, the Federal Court held that the replacement obligation exists independently of ownership of the path ground and is governed by the functional criterion of network preservation.
#5. Controversial Issues
N. 11 Scope of replacement obligation: In doctrine, it is disputed whether the replacement obligation under para. 3 applies only to formally classified paths or to all connections that factually serve non-motorised transport. Schmid (FS Kaufmann, 1989, p. 334) advocates a broad interpretation, while Häner (Strassenrecht, 2008, p. 190) argues for restriction to inventoried paths. The Federal Administrative Court tends towards extensive interpretation (Judgment A-4598/2022 of 29.1.2025).
N. 12 Relationship to environmental protection: The weighting between path expansion and nature conservation is controversially discussed. Griffel (Verkehrsverfassungsrecht, 2008, p. 47) emphasises the precedence of environmental protection, while Keller/Hauser (Verfassungsgrundlagen, 2006, p. 45) advocate for equal ranking of constitutional goods. Practice shows case-by-case balancing of interests (BGE 1C_217/2023 of 21.11.2024).
#6. Practice Notes
N. 13 In planning infrastructure projects, early involvement of cantonal specialist offices for pedestrian and hiking trails as well as for cycling traffic is essential. The replacement obligation under para. 3 also applies to temporary construction site installations, which makes diversion concepts mandatory.
N. 14 Municipalities must observe the requirements of Art. 3 para. 3 lit. c SPA in land use planning, which prescribes consideration of pedestrian and hiking trails. The legal securing of path rights ideally occurs through registration in the land register as an easement (OGVE 2018/19 No. 73).
N. 15 The coordination duty under para. 2 manifests itself in practice through Swiss Hiking Trails and SwitzerlandMobility as national coordination centres. Federal contributions require compliance with quality standards according to Art. 6 para. 2 FAPT or the corresponding provisions of the FACP.