Doctrine

#1. Legislative History

N. 1 Art. 90 FC adopted the substance of Art. 24quinquies former FC during the total revision in 1999 (adopted in the popular vote of 23 September 1957). The constitutional basis was created to enable uniform federal regulation in the security-relevant area of nuclear energy (BBl 1957 I 721, 739). The constitutional legislator thus reacted to the beginning peaceful use of nuclear energy and the necessity of coherent safety legislation.

N. 2 The historical development shows three phases: (1) 1946–1957: Transitional order based on Art. 24quater former FC (water power); (2) 1957–1999: Comprehensive federal competence under Art. 24quinquies former FC; (3) since 1999: Continuation under Art. 90 FC with unchanged material content. The message on the new Federal Constitution stated that the existing competence order would be adopted "unchanged" (BBl 1997 I 350).

#2. Systematic Classification

N. 3 Art. 90 FC stands in Section 3 "Energy and Communication" of Chapter 3 on the competences of the Confederation and the cantons. The provision forms, together with → Art. 89 FC (energy policy) and → Art. 91 FC (energy transport), the constitutional energy regime. While Art. 89 FC establishes a concurrent competence, Art. 90 FC establishes an exclusive federal competence.

N. 4 The systematic connection with → Art. 118 para. 2 lit. b FC (protection against ionising radiation) and → Art. 74 FC (environmental protection) shows the dual regulatory approach: Art. 90 FC covers nuclear energy as technology, the other provisions regulate specific protective aspects. → Art. 196 No. 4 FC (transitional provision to Art. 90) constitutes the constitutional basis of the ten-year moratorium for new general licences (2000–2010).

#3. Elements of the Offence / Normative Content

N. 5 The term "nuclear energy" encompasses, according to prevailing doctrine, all aspects of the peaceful use of nuclear fission and nuclear fusion for energy generation (Kern, BSK BV, Art. 90 N. 4; Jagmetti, Energierecht, 2005, p. 467; Hänni/Stöckli, Wirtschaftsverwaltungsrecht, 2013, § 15 N. 32). Included are: research, construction, operation and decommissioning of nuclear installations, handling of nuclear fuels, disposal of radioactive waste, transport of nuclear material, liability and insurance.

N. 6 "Legislation" means comprehensive law-making competence at all normative levels: constitution, law, ordinance. The Confederation may regulate the area conclusively or leave partial areas to the cantons (Kern, BSK BV, Art. 90 N. 4). The competence encompasses both the promotion as well as the restriction or prohibition of nuclear energy use.

N. 7 "Matter of the Confederation" constitutes an exclusive federal competence. The cantons have no original competences in the nuclear energy area, but may perform tasks delegated by the Confederation or act within the framework of their general police competence (→ Art. 3 FC).

#4. Legal Consequences

N. 8 The exclusive federal competence leads to the displacement of any cantonal law in the nuclear energy area. The Federal Supreme Court held that the competence order should "prevent the use of nuclear energy, which lies in the national interest, from being hampered by inappropriate conditions and requirements" (BGE 108 Ib 485 E. 3a; cited in Kern, BSK BV, Art. 90 N. 8).

N. 9 The Confederation has exercised its competence through the Nuclear Energy Act (NEA) and the Nuclear Liability Act (NLA) as well as numerous ordinances. The licensing procedures are conclusively regulated by federal law, cantonal licences are excluded (Weber/Kratz, Elektrizitätswirtschaftsrecht, 2005, p. 234).

N. 10 From the police nature of the operating licence follows that time limitations are only permissible for safety police reasons (BGE 139 II 185 E. 5.2; Reich, ZBl 2013, 513–523). The Federal Administrative Court clarified that politically motivated time limitations would be impermissible (Judgment A-667/2010; Bütler/Schindler, Sicherheit & Recht 2012, 139–144).

#5. Disputes

N. 11 Constitutionality of a nuclear phase-out: The Federal Office of Justice takes the position in its opinion "Constitutional Questions Nuclear Energy Phase-out" that a legally ordered, safety police motivated phase-out from nuclear energy is "at least not excluded" (cited in Kern, BSK BV, Art. 90 N. 8). R.P. Müller (Energiewende: Neue Politik im alten Kleid?, ZBl 2013, 635–668, 666) takes a different view and considers a complete phase-out to be unconstitutional, as Art. 90 FC contains no prohibition competence.

N. 12 Scope of cantonal competences: While prevailing doctrine denies the cantons any independent regulatory competence (Jagmetti, Energierecht, 2005, p. 472; Weber/Kratz, Elektrizitätswirtschaftsrecht, 2005, p. 235), a minority recognises limited cantonal scope for action in purely local aspects without safety-technical reference (Buser, AJP 2006, 387–395, 392).

N. 13 Independence of the supervisory authority: The position of ENSI as an independent supervisory authority raises constitutional questions. Biaggini (legal opinion of 26.8.2013) affirms compatibility with the principle of democracy and legality, while critical voices criticise an overly extensive autonomisation (Scheiwiller, Sicherheit & Recht 2009, 125–140, 138).

#6. Practice Notes

N. 14 In licensing procedures, the conclusive federal regulation must be observed: Cantonal and municipal licences (construction, planning, environmental law) are consumed by the nuclear energy law licences. The coordination procedure according to Art. 62a NEA is mandatory.

N. 15 The liability regulation follows a special regime: Unlimited liability of the licence holder with mandatory insurance coverage of 1.2 billion francs and subsidiary federal liability up to 2.2 billion francs (Waldner, AJP 2012, 1103–1118, 1105; Debieux, La responsabilité civile des exploitants d'installations nucléaires, 1987, p. 89 ff.).

N. 16 For democratic participation, the optional referendum against general licences remains (Art. 48 para. 4 NEA). Cantonal veto rights or participation rights in site decisions are constitutionally excluded (Müller/Hösli/Vouilloz, Introduction au droit énergétique en Suisse, 1997, p. 178).

Art. 90 BV

#Case law

#I. Exclusive federal competence in nuclear energy

BGE 111 Ia 303 of 25 September 1985
Legislation in the field of nuclear energy is comprehensively a federal matter. The cantons no longer have any legislative authority in the area regulated by federal nuclear legislation. This division of competences is intended to ensure that all protective measures possible and necessary according to the latest state of science and technology are taken in the construction and operation of nuclear facilities and to prevent the use of nuclear energy, which is in the interest of the entire country, from being hampered by inappropriate conditions and requirements.

«According to Art. 24quinquies para. 1 BV, legislation in the field of nuclear energy is a federal matter [...]. The Federal Supreme Court has repeatedly held that the Confederation has comprehensive competence to legislate in the field of nuclear energy based on Art. 24quinquies BV. The cantons no longer have any legislative authority in the area regulated by federal nuclear legislation.»

BGE 111 Ib 102 of 24 April 1985
The comprehensive federal competence also extends to preparatory actions for the construction of storage facilities for radioactive waste. For preparatory actions for the construction of a storage facility for radioactive waste, federal council authorisation as well as cantonal permits of a spatial planning and building police nature are required.

«The Federal Supreme Court has repeatedly established the comprehensive competence of the Confederation, based on Art. 24quinquies BV, to legislate conclusively on nuclear facilities in the field of nuclear energy. The cantons no longer have any legislative authority in the areas regulated by federal nuclear legislation.»

#II. Relationship to cantonal competences

BGE 119 Ia 390 of 30 August 1993
The division of competences between the Confederation and the cantons in the field of nuclear law leaves the cantons with certain powers to regulate the use of the subsoil. The concession requirement for the use of the subsoil for the construction of storage facilities for radioactive waste is compatible with nuclear legislation.

«The appellant also considers the new provisions in the EGzZGB to be incompatible with federal nuclear legislation [...]. Therefore, the rule applies that a canton may not exercise the competences that belong to it in principle, insofar as this would make the fulfilment of a task assigned to the Confederation impossible or significantly more difficult.»

Judgment 1C_36/2011 of 8 February 2012
A comprehensive federal competence exists for legislation in the field of nuclear energy (Art. 90 BV). This does not exclude that municipalities, within the framework of their planning sovereignty, are in principle entitled to exclude the construction of installations with above-average CO2 emissions with corresponding zoning provisions in order to fulfil important concerns of spatial planning.

«A comprehensive federal competence exists for legislation in the field of nuclear energy (Art. 90 BV). The enactment of regulations on the transport and delivery of electrical energy is also a federal matter (Art. 91 para. 1 BV).»

#III. Energy regulation and conclusive federal regulation

BGE 138 I 454 of 27 October 2012
Federal energy regulation can be conclusive in nature. Unlike the regulation of former Art. 7 EnG, Art. 7 and 7a EnG, which entered into force on 1 January 2009, are conclusive in nature. Additional remuneration components that would be ordered by cantonal authorities and would affect electricity tariffs thus no longer have any scope.

«According to the principle of the derogatory force of federal law (Art. 49 para. 1 BV), the cantons can no longer engage in legislation in subject areas that federal legislation has regulated conclusively.»

#IV. Financing of disposal

Judgment A-1972/2021 of 18 January 2023
The financing of the decommissioning and disposal of nuclear installations is carried out through separate funds with legal personality. The owners of the nuclear installations make contributions to these two funds (Decommissioning Fund for Nuclear Installations and Disposal Fund for Nuclear Power Plants). Their contribution obligation ends with the completion of the decommissioning of the respective nuclear installation.

«The owners of Swiss nuclear power plants and other nuclear installations are obliged to decommission their installations at their own expense after final shutdown and to dispose of the radioactive waste arising therefrom (cf. Art. 26 and 31 of the Nuclear Energy Act of 21 March 2003 [KEG, SR 732.1]).»

#V. Federal Administrative Court case law

Judgment A-5647/2016 of 6 September 2018
Decisions on the financing of the decommissioning and disposal of nuclear installations fall within federal jurisdiction. Administrative court appeals against decisions concerning decommissioning funds are admissible before the Federal Administrative Court.

BVGE 2013/13 of 26 March 2012
In the field of nuclear energy, where Art. 90 BV assigns comprehensive legislative competence to the Confederation, the construction and operation of nuclear power plants is undisputedly a matter for private enterprises. The Constitution does not address the question of public or private task fulfilment where it assigns comprehensive competence to the Confederation.