#1. Legislative History

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.

N. 2 When enacting the provision, the Federal Council deliberately refrained from creating a constitutional basis for levying energy taxes. 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.).

#2. Systematic Classification

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).

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).

#3. Elements of the Provision / Normative Content

N. 6 Energy 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).

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.).

N. 8 Framework 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.).

N. 9 Federal 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).

N. 10 Cantonal 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).

#4. Legal Consequences

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).

#5. Controversies

N. 14 Constitutional 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). 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).

N. 15 Scope 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. 16 Fundamental 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.

#6. Practical Guidelines

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.

#Scope of Application

#Constitutional Mandate for Energy Policy

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.»

#Elements of the Offence

#Energy Supply Mandate

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.»

#Principles of Energy Policy

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.»

#Legal Consequences

#Comprehensive Federal Regulation

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.»

#Property Protection in Energy Measures

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.»

#Procedure

#Jurisdiction of ElCom

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.»

#Plan Approval Procedure

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.»

#Environmental Impact Assessment

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.»

#Other Significant Decisions

#Municipal Energy Regulations

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.

#Current Developments

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.