1Within the scope of their powers, the Confederation and Cantons shall endeavour to ensure a sufficient, diverse, safe, economic and environmentally sustainable energy supply as well as the economic and efficient use of energy.
2The Confederation shall establish principles on the use of local and renewable energy sources and on the economic and efficient use of energy.
3The Confederation shall legislate on the use of energy by installations, vehicles and appliances. It shall encourage the development of energy technologies, in particular in the fields of saving energy and the renewable energy sources.
4The Cantons shall be primarily responsible for measures relating to the use of energy in buildings.
5The Confederation shall take account in its energy policy of the efforts made by the Cantons, the communes and the business community; it shall take account of the conditions in the individual regions of the country and the limitations of what is economically feasible.
Art. 89 Federal Constitution regulates Switzerland's energy policy and divides competencies between the Confederation and the cantons (Kern, BSK BV, Art. 89 N. 4–5). The Confederation may issue regulations on the energy consumption of installations and vehicles and promote energy technologies. The cantons are primarily responsible for measures regarding buildings. Both levels of government must work together to ensure a secure, environmentally compatible and economic energy supply (BGE 138 I 454 E. 5.1).
This provision applies to Switzerland's entire energy policy. It covers both energy production (electricity, heat) and energy consumption. All public authorities of the Confederation, cantons and municipalities are obligated to pursue energy policy objectives (Kern, BSK BV, Art. 89 N. 9–11). Private energy companies must comply with government regulations but do not receive direct rights from the Constitution.
The Constitution names five equivalent objectives for energy supply: It must be sufficient (enough energy for all), diversified (various energy sources), secure (reliably available), economic (affordable) and environmentally compatible. Additionally, energy should be used sparingly and efficiently (Kern, BSK BV, Art. 89 N. 12–13).
Federal competencies: The Confederation may enact legislation on energy efficiency of appliances, vehicles and installations (Art. 89 para. 3 Federal Constitution). It may also promote research and development of new energy technologies. The Energy Act (EnA, SR 730.0) and the Electricity Supply Act (ESA, SR 734.7) are based on these competencies (BGE 138 I 454 E. 5.2).
Cantonal responsibilities: The cantons primarily regulate energy measures for buildings such as heating regulations or insulation standards (Art. 89 para. 4 Federal Constitution). The Federal Supreme Court has confirmed that cantons may also ban electric heating if this is proportionate (BGE 149 I 49 E. 8).
Exhaustive federal regulations: When the Confederation has completely regulated an area, cantons may not enact additional regulations. Thus, since 2009, cantons can no longer introduce their own compensation for solar electricity because the Confederation has exhaustively regulated this in the EnA (BGE 138 I 454 E. 5.3).
Practical example: A canton wants to promote new solar panels. It may issue building permits and pay subsidies (cantonal building competency). However, it may not require electricity suppliers to pay higher prices for solar electricity than provided for in the federal feed-in tariff system (exhaustive federal regulation).
N. 1 The current constitutional energy provision was introduced in 1990 as Art. 24octies of the old Federal Constitution and transferred unchanged to the new Federal Constitution in 1999 (BBl 1988 II 369, 397 ff.; BBl 1997 I 421). The constitutional article arose against the backdrop of the oil crises of the 1970s and the Chernobyl nuclear power plant disaster of 1986. It was intended to provide the Confederation with the necessary powers to design a sustainable energy policy (Kern, BSK BV, Art. 89 N. 1).
N. 2 When enacting the provision, the Federal Council deliberately refrained from creating a constitutional basis for levying energy taxes (Kern, BSK BV, Art. 89 N. 6). This decision continues to shape the allocation of powers today: According to prevailing doctrine, Art. 89 FC cannot be used as a basis for levying energy taxes (Jaag/Keller, URP 1998, 319 ff.; Kern, BSK BV, Art. 89 N. 6).
N. 3 Art. 89 FC is systematically located in Title 2 «Powers» of the Federal Constitution and regulates the allocation of powers between the Confederation and the cantons in the energy sector. The provision is closely linked with the neighbouring provisions → Art. 90 FC (nuclear energy) and → Art. 91 FC (transport of energy) as well as with the environmental provisions (→ Art. 73–74 FC).
N. 4 The energy constitution follows a cooperative federalism approach: the Confederation and cantons work together towards energy policy objectives (para. 1), with specific powers assigned to the Confederation (paras. 2–3) while the cantons remain primarily responsible for building energy (para. 4). This allocation of powers differs from the classic scheme of exclusive or concurrent federal powers (Waldmann, Volkswirtschaft 1/2-2005, 23; Kern, BSK BV, Art. 89 N. 4–5).
N. 5 Central to interpretation is the relationship to fundamental rights. According to Müller, FS Wahl 2001, 351 ff., public energy supply companies are also bound by fundamental rights insofar as they act with sovereign authority (→ Art. 35 FC). This applies particularly to the guarantee of property (→ Art. 26 FC) and economic freedom (→ Art. 27 FC) (Kern, BSK BV, Art. 89 N. 8).
N. 6Energy policy objectives (para. 1): The Constitution names two equal objectives: an «adequate, diversified, safe, economic and environmentally sustainable energy supply» as well as «economical and efficient energy consumption». These objectives are to be understood as optimization requirements that must be balanced in concrete legal application (BGE 138 I 454 E. 5.1; Kern, BSK BV, Art. 89 N. 9–11).
N. 7 The five criteria for energy supply are sometimes in tension with each other. «Adequate» means quantitative coverage of demand. «Diversified» requires diversification of energy sources. «Safe» encompasses both security of supply and technical safety. «Economic» demands cost efficiency. «Environmentally sustainable» integrates ecological aspects (Jagmetti, Energierecht, 32 ff.; Kern, BSK BV, Art. 89 N. 12–13).
N. 8Framework legislation (para. 2): The Confederation has framework legislative power for the use of domestic and renewable energies as well as for economical energy consumption. «Framework principles» are broad guidelines that must leave implementation discretion to the cantons. However, practice shows a tendency towards detailed federal regulation (Müller, ZBl 2013, 635 ff.; Kern, BSK BV, Art. 89 N. 14–16).
N. 9Federal powers (para. 3): The Confederation has two specific powers: First, it may enact regulations on the energy consumption of installations, vehicles and equipment (regulatory power). Second, it promotes the development of energy technologies (promotional power). The regulatory power is designed as a comprehensive federal power (BGE 138 I 454 E. 5.2; Kern, BSK BV, Art. 89 N. 17–18).
N. 10Cantonal building power (para. 4): The cantons are responsible «primarily» for energy-related measures in buildings. This primary cantonal power is coordinated through the MuKEn (Model Provisions of the Cantons in the Energy Sector). However, the Confederation may also enact building regulations based on para. 3 insofar as installations and equipment are concerned (Hänni/Stöckli, Wirtschaftsverwaltungsrecht, 685; Kern, BSK BV, Art. 89 N. 19).
N. 11 Art. 89 FC does not create subjective rights for private parties. The provision is directed at the legislators of the Confederation and cantons and obliges them to pursue energy policy objectives. A direct claim to specific energy policy measures cannot be derived from the constitutional provision (Weber/Kratz, Elektrizitätswirtschaftsrecht, 45).
N. 12 The allocation of powers is mandatory: Insofar as the Confederation has exercised its powers, the cantons are bound by federal law (→ Art. 49 FC). The Federal Supreme Court has confirmed this for feed-in tariffs: With the comprehensive federal regulation in the EnA, there is no longer room for additional cantonal tariffs (BGE 138 I 454 E. 5.3).
N. 13 Energy policy measures must respect fundamental rights, particularly the guarantee of property and economic freedom. The Federal Supreme Court applies a strict proportionality standard but recognizes the high importance of energy policy objectives as a public interest (BGE 149 I 49 E. 8).
N. 14Constitutional basis for energy taxes: Prevailing doctrine holds that Art. 89 FC does not provide a sufficient basis for energy taxes (Jaag/Keller, URP 1998, 319, 385; Kern, BSK BV, Art. 89 N. 6). The contrary view argues that the grid surcharge introduced with the ElSA could be based on Art. 89 FC. However, Kern points out that the support should correctly be based on Art. 74 FC (environmental protection) (Kern, BSK BV, Art. 89 N. 6).
N. 15Scope of federal power: The extent of the Confederation's framework legislative power is disputed. Müller, ZBl 2013, 640, criticizes extensive federal legislation as undermining the principle of federalism. Waldmann, Volkswirtschaft 1/2-2005, 25, however, defends comprehensive federal regulation as necessary for a functioning energy market.
N. 16Fundamental rights obligations in the liberalized electricity market: The fundamental rights obligations of energy supply companies after market opening are controversially discussed. Müller, FS Wahl 2001, 360 ff., affirms fundamental rights obligations when acting with sovereign authority. Häner, AJP 2002, 1150, advocates for a differentiated approach depending on the area of responsibility.
N. 17 When planning energy projects, the complex allocation of powers must be observed. In principle, three levels must be distinguished: (1) installations for energy generation are primarily subject to federal law (EnA, ElSA), (2) building energy falls under cantonal jurisdiction, (3) municipal energy planning must operate within the framework of higher-level law.
N. 18 For the permissibility of cantonal energy regulations, it is decisive whether the Confederation has legislated comprehensively. This must be examined on a case-by-case basis. As a rule of thumb: the more detailed the federal regulation, the narrower the cantonal scope. The MuKEn provide guidance for constitutionally compliant cantonal regulations.
N. 19 For interventions in property rights (e.g. heating replacement obligations, solar obligations), a careful proportionality assessment is required. While the Federal Supreme Court recognizes energy policy objectives as a significant public interest, it requires appropriate transitional periods and hardship provisions (BGE 149 I 49 E. 8.4).
N. 20 The energy transition requires close coordination between levels of government. Art. 89 para. 5 FC obliges the Confederation to take into account the efforts of the cantons and municipalities. In practice, this means: early involvement of all actors, consideration of regional particularities and coordination of support programmes (Kern, BSK BV, Art. 89 N. 20–21).
BGE 138 I 454 of 27 October 2012
According to Art. 89 para. 1 FC, the Confederation and the cantons shall endeavour, within the scope of their respective powers, to ensure a sufficient, diversified, safe, economic and environmentally sustainable energy supply as well as economical and rational energy consumption.
Central constitutional basis for federal energy regulation.
«According to Art. 89 para. 1 FC - and formerly identically Art. 24octies para. 1 former FC - the Confederation and the cantons shall endeavour, within the scope of their respective powers, to ensure a sufficient, diversified, safe, economic and environmentally sustainable energy supply as well as economical and rational energy consumption.»
BGE 137 II 266 of 5 April 2011
Confirms the principle of economical and rational energy use as part of the Federal Constitution.
Efficient energy transport with minimal losses belongs to the constitutional objective.
«Principle of economical and rational energy use (Art. 89 para. 1 FC; Art. 3 EnA); this includes efficient energy transport with minimal losses.»
#Division of Powers between Confederation and Cantons
BGE 149 I 49 of 23 March 2023
Cantonal energy regulations for promoting renewable energies are constitutional as long as they are proportionate.
Heating replacement obligation in the Canton of Zurich does not violate the guarantee of property.
«The prohibition of electric heating and the associated criminal penalty in case of violation therefore pursue concerns of environmental protection and adequate energy supply and thus have sufficient public interest.»
BGE 140 II 262 of 2 April 2014
The comprehensive balancing of interests for hydroelectric power projects must consider the statutory goal of promoting renewable energies.
Concession duration of 80 years for small hydroelectric power plants is permissible.
«Comprehensive balancing of interests taking into account in particular the statutory goal of promoting electricity generation from renewable energies.»
BGE 143 II 87 of 17 October 2016
The CO2 emissions trading system is in accordance with Art. 89 FC.
Energy efficiency as a central criterion for promoting renewable energies.
«The CO2 Act of 23 December 2011 aims to reduce greenhouse gas emissions with the goal of contributing to limiting global temperature rise to less than 2 degrees Celsius.»
BGE 138 I 454 of 27 October 2012
With the revision of the Energy Act in 2009, a comprehensive federal regulation for feed-in tariffs was created.
Cantonal additional costs for grid operators are no longer permissible.
«Unlike the regulation of former Art. 7 EnA, the provisions of Art. 7 and 7a EnA that came into force on 1 January 2009 have a comprehensive character. Additional remuneration components ordered by cantonal authorities and affecting electricity tariffs thus no longer have scope.»
BGE 149 I 49 of 23 March 2023
Judgment 1C_37/2022 of 23 March 2023
Cantonal obligations to remove electric heating systems interfere with the guarantee of property but are permissible if proportionate.
Has sufficient public interest in the sense of environmental and energy law.
«The obligation to remove such systems associated with the prohibition of electric heating and the related criminal penalty in the Canton of Zurich restrict the property of owners of corresponding heating systems. The statutory regulation provides a sufficient basis for the interference with the guarantee of property, is based on sufficient public interest and is proportionate.»
BGE 138 I 454 of 27 October 2012
After electricity market liberalisation, enforcement of feed-in tariffs lies with ElCom.
Cantonal authorities are no longer competent for remuneration issues regulated by federal law.
«An additional remuneration component ordered by cantonal authorities and affecting electricity tariffs no longer has scope.»
BGE 137 II 266 of 5 April 2011
Plan approvals for high-voltage power lines require comprehensive balancing of interests considering energy efficiency.
Underground cables may be preferable to overhead lines when considering total costs.
«The considerably higher power loss costs of the overhead line largely offset the higher investment costs of the cable installation. In the present case, the balancing of interests favours partial underground cabling of the high-voltage line.»
BGE 140 II 262 of 2 April 2014
Small hydroelectric power plants require a proper environmental impact assessment.
The promotion of renewable energies must be considered in the balancing of interests.
«The small hydroelectric power plant in question does not require a basis in the structure plan. Subject of examination of the first stage of the environmental impact assessment within the framework of the concession decision.»
Judgment 7H 21 5 of the Cantonal Court of Lucerne of 16 May 2022
A municipal initiative obliging renewable heating systems is proportionate.
The principle «in dubio pro populo» applies to validity review.
Judgment 1C_129/2025 of the Federal Supreme Court of 31 July 2025
Cantonal decrees for implementing the energy transition must observe federal legal requirements.
Energy planning reports 2022 as a basis for cantonal measures.
Decision 810 2024 72 of the Cantonal Court of Basel-Landschaft of 11 September 2024
Abstract review of norms regarding amendment of the Energy Act based on the Energy Planning Report 2022.
Cantonal energy regulations in the area of tension between climate protection and property rights.