Art. 9 FC — Protection against Arbitrariness and Preservation of Good Faith

#Doctrine

#1. Legislative History

N. 1 Art. 9 FC codifies two constitutional rights that the Federal Supreme Court had derived from Art. 4 of the former Federal Constitution (aFC) prior to the total revision of the Federal Constitution. In its dispatch, the Federal Council described the prohibition of arbitrariness as an «indispensable foundation of the rule of law» and the principle of good faith as a means enabling the individual to require authorities to abide by their assurances (BBl 1997 I 144 f.). The recodification in a self-standing provision of the catalogue of fundamental rights was thus a deliberate decision, not a mere editorial reflex.

N. 2 In the preliminary draft of 1995 (PD 1995), Art. 8 PD did not yet contain a provision corresponding to the current Art. 9 FC — the structure was realigned in the draft of 1996 (Art. 8 PD 96). The dispatch emphasised that the prohibition of arbitrariness had already possessed independent fundamental-rights character before the total revision, unlike the principle of legality and the principle of proportionality, which the Federal Supreme Court had not qualified as independent constitutional rights (BBl 1997 I 144; confirmed in BGE 127 I 38 E. 2a).

N. 3 The Federal Council expressly rejected any restriction of the protection of legitimate expectations to the relationship between the State and private individuals, even though one canton and two organisations had requested this limitation during the consultation procedure (BBl 1997 I 145). The open formulation «to be treated by the state organs...» reflects this stance. In the Council of States, rapporteur Inderkum emphasised that the committee expected the Federal Supreme Court to develop its practice further in light of the now explicit prohibition of arbitrariness in the catalogue of fundamental rights (AB 1998 SR Separatdruck). The final parliamentary votes in both chambers took place on 18 December 1998; the Federal Constitution entered into force on 1 January 2000.

N. 4 Immediately after its entry into force, the Federal Supreme Court clarified that Art. 9 FC introduces no substantive changes compared to Art. 4 aFC: «An diesem aus Art. 4 aBV abgeleiteten Willkürbegriff hat sich durch den am 1. Januar 2000 in Kraft getretenen Art. 9 BV inhaltlich nichts geändert» (BGE 127 I 38 E. 2a). The Federal Supreme Court thereby confirmed continuity rather than rupture — Inderkum's expectation of a change in practice was not fulfilled.

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#2. Systematic Classification

N. 5 Art. 9 FC is situated in the second chapter of the Federal Constitution («Fundamental Rights», Arts. 7–36 FC) and is grouped there alongside a cluster of procedural fundamental rights: → Art. 29 FC (general procedural guarantees), → Art. 30 FC (judicial proceedings), → Art. 32 FC (criminal proceedings). The provision is not a programmatic norm but a subjective right of every person against state organs.

N. 6 Art. 9 FC stands in close tension with ↔ Art. 5 FC: whereas Art. 5(3) FC formulates the requirement of good faith as a constitutional principle of state conduct (which is not directly enforceable by individuals), Art. 9 FC establishes a subjective fundamental right to protection of legitimate expectations (BGE 129 I 161 E. 4.1: «Der in Art. 9 BV verankerte Grundsatz von Treu und Glauben verleiht einer Person Anspruch auf Schutz des berechtigten Vertrauens in behördliche Zusicherungen»). The two provisions protect the same substantive interest at different legal levels (cf. Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 807).

N. 7 A systematic distinction must be drawn: the prohibition of arbitrariness in Art. 9 FC is directed at all state organs and applies to every application of the law. → Art. 8 FC (equality before the law) protects against unequal treatment that is not objectively justified; Art. 9 FC protects against treatment that is simply untenable. Both fundamental rights may be violated concurrently, but they cover logically distinct constitutional defects (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1862).

N. 8 Art. 9 FC is regarded as a residual fundamental right (Müller/Schefer, Grundrechte in der Schweiz, 4th ed. 2008, p. 729): where a state act lacks a legal basis or violates a specific fundamental right, Art. 9 FC is subsidiarily applicable. Against the Confederation, Art. 9 FC cannot in particular be invoked independently as a ground of appeal in matters concerning the application of federal law — the Federal Supreme Court corrects the incorrect application of federal law directly (→ Art. 95 BGG); an independent plea of arbitrariness remains confined to the application of cantonal law.

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#3. Elements of the Provision / Normative Content

3.1 Prohibition of Arbitrariness

N. 9 «Every person» encompasses natural and legal persons of Swiss or foreign nationality; the right is universal and is not confined to citizens. «State organs» covers all bearers of state tasks — the legislature, executive, and judiciary at the federal, cantonal, and communal levels, as well as private bodies entrusted with public functions insofar as they act in a sovereign capacity.

N. 10 According to the Federal Supreme Court's formula, arbitrariness exists where a decision «is manifestly untenable, is in clear contradiction with the actual situation, grossly violates a norm or an undisputed legal principle, or is shockingly at odds with the sense of justice» (BGE 134 I 140 E. 5.4; BGE 129 I 8 E. 2.1). However, the Federal Supreme Court sets aside a decision only if it is untenable in its result — not merely in its reasoning; the mere fact that another solution appears defensible or even correct does not suffice.

N. 11 Arbitrariness thus requires a qualified degree of defectiveness. Simple unlawfulness, inexpediency, or substantive challengeability do not constitute arbitrariness. The Federal Supreme Court stated in BGE 129 I 8 E. 2.1: «l'arbitraire ne résulte pas du seul fait qu'une autre solution pourrait entrer en considération ou même qu'elle serait préférable». This high threshold is constitutionally necessary in terms of doctrine, as otherwise Art. 9 FC would be expanded into a general review of lawfulness, which would be incompatible with the system of legal remedies.

N. 12 Arbitrariness may manifest in various forms: arbitrary application of the law (incorrect interpretation or application of a norm), arbitrary establishment of facts (manifestly incorrect fact-finding), and arbitrary assessment of evidence (untenable conclusions drawn from the evidence adduced; BGE 127 I 38 E. 2a). The Federal Supreme Court also recognises arbitrariness in law-making: a legislative act is arbitrary if it cannot be supported by any serious objective grounds or is pointless and purposeless (BGE 129 I 1 E. 3).

3.2 Principle of Good Faith (Protection of Legitimate Expectations)

N. 13 The principle of good faith within the meaning of Art. 9 FC protects the legitimate reliance on official assurances or other conduct of the authorities that gives rise to specific expectations. In BGE 131 II 627 E. 6.1, the Federal Supreme Court described the conditions for the protection of legitimate expectations in its consistent case law as follows: (a) the authority acted in a concrete situation vis-à-vis specific persons; (b) in doing so it acted within the scope of its competence, or is regarded as having done so; (c) the person concerned could not easily have recognised the incorrectness of the conduct; (d) relying thereon, that person took dispositive steps that cannot be reversed without disadvantage; (e) the legal situation has not changed since the authority's act.

N. 14 If even one of these five conditions is absent, protection of legitimate expectations is excluded. In BGE 129 I 161 E. 4.2, the Federal Supreme Court already denied the existence of a sufficient basis for reliance, because the mere fact that an authority had accorded a certain treatment in a particular situation does not in itself constitute a basis for reliance. In BGE 131 II 627 E. 6.2, condition (d) was lacking: a person entitled to protection may invoke detrimental reliance only where the disposition was made on the basis of the official assurance — not the other way around.

N. 15 Good faith further encompasses the prohibition of contradictory conduct (venire contra factum proprium): state organs may not conduct themselves in an irreconcilably contradictory manner where private persons have legitimately relied on consistent conduct. BGE 132 II 485 E. 4.3 establishes that this prohibition also applies to procedural law: a party who fails to raise an alleged defect in composition of an authority at the first opportunity upon becoming aware of it forfeits the right to invoke it later — this too is an expression of good faith.

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#4. Legal Consequences

N. 16 A finding of a violation of Art. 9 FC results in the annulment of the contested decision and referral back to the competent authority for a fresh determination. The Federal Supreme Court does not as a rule substitute its own decision for the arbitrary one but refers the matter back — unless the facts are ripe for adjudication. In the case of protection of legitimate expectations, the legal consequence may also consist in a positive obligation on the authority to abide by its assurance, even if this conflicts with the applicable law — provided that no overriding public interest stands in the way (BGE 131 II 627 E. 6.1).

N. 17 Invoking Art. 9 FC before the Federal Supreme Court is subject to a qualified duty to raise and substantiate the complaint (→ Art. 106(2) BGG): the appellant must clearly and in detail substantiate the violation, i.e. demonstrate in what respect the contested decision is not merely incorrect but untenable in its result. Appellatory criticism of a decision does not suffice (BGE 136 I 229 E. 4.1; BGE 127 I 38 E. 3c).

N. 18 The prohibition of arbitrariness alone does not establish a legally protected position within the meaning of Art. 115(b) BGG entitling a person to lodge a subsidiary constitutional complaint. Standing to bring a subsidiary constitutional complaint requires a specific legal position protected by federal or cantonal statutory law or by a special fundamental right (BGE 136 I 229 E. 3.2). Exceptionally, a sufficiently clearly defined legal position — such as a system of grades regulated by statute in an examination regulation — may establish standing to raise a plea of arbitrariness.

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#5. Contested Issues

N. 19 Relationship between Art. 9 FC and Art. 5(3) FC regarding protection of legitimate expectations: It is disputed whether Art. 9 FC or Art. 5(3) FC is to be invoked as the basis for the protection of legitimate expectations. Häfelin/Haller/Keller/Thurnherr (Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N 807 f.) draw the following distinction: Art. 5(3) FC formulates the principle as an objective constitutional principle, whereas Art. 9 FC formulates it as a subjective right. In practice, the Federal Supreme Court often bases the protection of legitimate expectations on both norms cumulatively (BGE 151 II 364 E. 5.1; BGE 131 II 627 E. 6.1) or on Art. 9 FC alone. Rhinow/Schefer/Uebersax (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N 1862) regard the distinction as primarily relevant for appellants in proceedings, since Art. 5(3) FC alone does not establish standing to bring a constitutional complaint.

N. 20 The formula in practice and the standard of review: Academic commentary debates whether the Federal Supreme Court's arbitrariness formula — in particular the requirement that the decision must be untenable in its result — leads to an excessively narrow control. Müller/Schefer (Grundrechte in der Schweiz, 4th ed. 2008, pp. 729 f.) criticise this on the ground that the reasoning of a decision is thereby largely excluded from review; untenable reasoning that happens to produce a defensible result would go unsanctioned. The Federal Supreme Court adheres to its practice, justifying this by the primacy of cantonal cognition and the purpose of the constitutional complaint as an extraordinary remedy.

N. 21 Delimitation from Art. 8 FC (equality before the law): Whether a state act violates Art. 8 or Art. 9 FC is not always clearly distinguishable. In BGE 129 I 1 E. 3, the Federal Supreme Court applied both standards in parallel. Häfelin/Haller/Keller/Thurnherr (op. cit., N 759) regard Art. 8 FC as the lex specialis for cases of unequal treatment and Art. 9 FC as the residual provision for other simply untenable decisions. In practice, pleas are frequently cumulated, which can give rise to redundancy problems in the reasoning.

N. 22 Protection of legitimate expectations versus the principle of legality: In areas of law governed by a strict principle of legality — notably tax law — the protection of legitimate expectations is subordinated. In BGE 131 II 627 E. 6.1, the Federal Supreme Court held that tax law is dominated by the principle of legality, and that the protection of legitimate expectations can therefore have only limited scope there. In BGE 150 I 1 (2023), the Federal Supreme Court clarified that the protection of legitimate expectations in official information in tax law does not, unlike in other areas of law, require an additional balancing of interests — which represents a relaxation compared with the earlier case law. This decision shows that the delimitation between the principle of legality and the protection of legitimate expectations remains in flux.

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#6. Practical Notes

N. 23 Duty to raise and substantiate the complaint: A party wishing to invoke Art. 9 FC before the Federal Supreme Court must substantiate the plea clearly. Blanket accusations of arbitrariness or mere criticism of the lower court's assessment of evidence do not suffice. What is required is an engagement with the specific result of the decision and a demonstration that that result — not merely the reasoning — is untenable (→ Art. 106(2) BGG; BGE 136 I 229 E. 4.1).

N. 24 Protection of legitimate expectations in practice: To successfully invoke the protection of legitimate expectations under Art. 9 FC, affected persons must establish cumulatively the five conditions (→ N. 13). Particular attention must be paid to the specific basis for reliance: a general administrative practice without a specific assurance does not suffice. Likewise, the dispositive act must have occurred after the assurance was given and must be causally linked to it. Where the assuring authority actually or presumably lacked competence, protection is excluded.

N. 25 Raising challenges to the composition of an authority: Under BGE 132 II 485 E. 4.3, any possible ground for recusal must be raised as early as possible, i.e. at the first opportunity after becoming aware of it. Reliance on Art. 9 FC (prohibition of contradictory conduct) is precluded for a party who engaged in the proceedings without raising a known defect.

N. 26 Arbitrariness in cantonal law: Art. 9 FC has its greatest practical significance in the review of the application of cantonal law by the Federal Supreme Court, since the Federal Supreme Court reviews cantonal law in principle only for arbitrariness (→ Art. 95(a) BGG e contrario). In matters of federal law, the Federal Supreme Court reviews the application of the law freely (Art. 95(a) BGG), so that a separate plea of arbitrariness is unnecessary.

N. 27 Standing: The prohibition of arbitrariness alone does not establish standing to bring a subsidiary constitutional complaint under Art. 115(b) BGG. The appellant must demonstrate an interest protected by statute or by a special fundamental right. Only where such a legal position exists may Art. 9 FC — as the standard for the manner in which that legal position is exercised — be invoked (BGE 136 I 229 E. 3.2 f.).

#Case Law

#Foundations and Standard of Review

BGE 134 I 140 E. 5.4 of 1 April 2008
The Federal Court developed the fundamental standards for reviewing complaints of arbitrariness. An authority acts arbitrarily when its conduct cannot be based on serious substantive grounds or appears senseless and purposeless.

«A decision is not arbitrary merely because it appears erroneous or inexpedient, but only a decision that cannot be based on any serious interpretation, deprives a legal provision of any practical significance, leads to shocking results, or is otherwise untenable.»

BGE 129 I 1 E. 3 of 6 November 2002
Arbitrariness in legislation: Cantonal provision on advance alimony payments does not violate Art. 9 FC. The Federal Court examined the constitutional conformity of a norm that takes into account the income of a cohabitation partner in advance alimony payments.

«An enactment is arbitrary if it cannot be based on serious substantive grounds or is senseless and purposeless; it violates the principle of legal equality if it makes legal distinctions for which no reasonable ground is apparent in the circumstances to be regulated.»

#Standing to Invoke the Prohibition of Arbitrariness

BGE 126 I 81 E. 3 of 3 April 2000
Principle of lack of independent standing: The general prohibition of arbitrariness alone does not establish a protected legal position that entitles one to file a constitutional complaint. The introduction of Art. 9 FC does not lead to a change in this case law.

«The general prohibition of arbitrariness alone does not establish a protected legal position that entitles one to file a constitutional complaint.»

BGE 133 I 185 E. 2.2 of 30 April 2007
No standing for discretionary decisions without legal entitlement: In foreign nationals' permit procedures, there is no standing for a subsidiary constitutional complaint for violation of the prohibition of arbitrariness when there is no legal entitlement to the permit.

«A legal provision that grants the authority discretion in application regularly does not provide affected persons with a legal entitlement and thus no standing to file a subsidiary constitutional complaint.»

BGE 138 I 305 E. 1.4.5 of 12 June 2012
Exception for sufficiently clearly defined legal position: Art. 14 BüG provides a person seeking naturalisation with a sufficiently clearly defined legal position that enables them to invoke the prohibition of arbitrariness.

«Art. 14 BüG ultimately provides a person seeking naturalisation with a sufficiently clearly defined legal position that enables them to invoke the prohibition of arbitrariness (Art. 9 FC) and the principle of legal equality (Art. 8 para. 1 FC) in subsidiary constitutional complaint proceedings.»

#Concrete Applications

BGE 127 I 97 E. 4 of 30 January 2001
Deregistration confirmation in case of tax debts: It violates the prohibition of arbitrariness to refuse to confirm a person's police deregistration because they have outstanding tax debts. The refusal of deregistration confirmation has no substantive connection with the purpose of tax collection.

«It violates the prohibition of arbitrariness to refuse to confirm a person's police deregistration because they have outstanding tax debts.»

BGE 133 I 178 E. 3.1 of 23 January 2007
Procedural errors in legislation: Non-compliance with the requirement of second reading by the cantonal parliament can be challenged based on the general prohibition of arbitrariness. Disregard of procedural legal provisions constitutes a serious formal defect.

«Disregard of the requirement of second reading appears as a serious formal defect of the parliamentary legislative procedure, which, although for reasons of legal certainty cannot absolutely prevent the binding nature of the relevant enactment, must nevertheless - if challenged within the deadline with an available legal remedy - lead to its annulment.»

BGE 134 I 153 E. 4 of 1 April 2008
Proportionality review: Outside of fundamental rights interferences, the Federal Court only intervenes for violation of the proportionality requirement when the cantonal legal order is obviously disproportionate and thus simultaneously violates the prohibition of arbitrariness.

«Outside of fundamental rights interferences, the Federal Court only intervenes for violation of the proportionality requirement when the cantonal legal order is obviously disproportionate and thus simultaneously violates the prohibition of arbitrariness.»

#Good Faith

BGE 138 I 321 E. 4.2 of 30 August 2012
Salary differences among judges: The differential remuneration of members of different courts does not violate the prohibition of arbitrariness, provided there are substantive differences in functions. The principle of good faith requires consistent treatment of comparable situations.

«The principle of good faith requires coherent behaviour from authorities and excludes contradictory conduct.»

BGE 142 V 513 E. 4.1 of 6 September 2016
Social assistance and cohabitation crediting: The crediting of a cohabitation contribution in the social assistance budget does not violate Art. 9 FC when it is based on substantive considerations and reflects actual cohabitation.

«A regulation that takes into account actual cohabitation and the resulting economic circumstances cannot be described as arbitrary.»

#Administrative Adjudication

BGE 133 I 201 E. 4 of 6 July 2007
Service of decisions: A decision on child allowances must be served directly on the entitled employee. Service on the employer with a request for forwarding does not suffice and violates the prohibition of arbitrariness as well as the right to be heard.

«The decision on child allowances to which the employee is entitled must be served on them. Service on the employer with a request to forward the decision to the employee does not suffice.»

#Recent Case Law (2020-2024)

BGE 144 I 113 E. 5.2 of 4 July 2018
Maternity leave and holiday regulations: The cantonal interpretation of a personnel ordinance whereby holidays can fall within maternity leave violates neither the principle of legal equality nor the prohibition of arbitrariness when it is based on a defensible interpretation of the law.

Judgment 2C_582/2009 E. 4.2 of 5 March 2010
Fact-finding: When an authority declares that a person has become a criminal offender but obviously relies on incorrect facts in doing so, it acts arbitrarily. Arbitrariness exists when fact-finding is untenable based on the evidence gathered.

«A fact-finding or assessment of evidence is arbitrary only when it is obviously incorrect or based on a violation of law.»