1The Confederation is responsible for postal and telecommunications services.
2The Confederation shall ensure the adequate, universal and reasonably priced provision of postal and telecommunications services in all regions of the country. The rates shall be fixed according to standard principles.
Art. 92 Cst. — Postal and telecommunications services
#Overview
Art. 92 Cst. confers exclusive jurisdiction over postal and telecommunications services on the Confederation. This comprehensive federal competence means: the Confederation regulates all matters from letter delivery to internet connections. The cantons may not enact their own legislation in this area.
The Constitution obliges the Confederation to ensure universal service (a minimum supply of essential services). This must be «adequate and affordable» and remain available throughout Switzerland. In concrete terms, this means: every household is entitled to postal services and telecommunications at affordable prices, including in remote areas.
Example: The postal service must deliver letters daily and maintain a network of post offices according to the Postal Act (Art. 13 para. 2 PostA). In telecommunications, universal service includes broadband connection with a minimum speed defined by the Telecommunications Act (Art. 16 TCA).
The Confederation may perform these tasks itself or transfer them to private companies. Thus the postal service continues to operate letter delivery, while various providers compete in the telecommunications sector. The state regulates prices and conditions to ensure universal service is maintained. The Federal Supreme Court has confirmed that such regulation is constitutionally required (BGE 127 II 8 consid. 3b).
The provision creates a tension between state responsibility and market liberalisation. Whereas the postal service and Swisscom were previously state monopolies, today there is regulated competition with guaranteed universal service.
#Doctrine
#1. Legislative History
N. 1 The federal competence in postal services dates back to Art. 33 of the Federal Constitution of 1848, which granted the Confederation the exclusive right to establish postal services (FedGaz 1997 I 1, 336). Telecommunications were gradually integrated: in 1851, the Confederation received sovereignty over telegraphy, though the constitutional basis was disputed. The Federal Council based the telegraph system on the postal monopoly, as «communications by telegraph correspond in essence to postal correspondence» (Kern, BSK BV, Art. 92 N. 3). The parliamentary commission vehemently objected: subordinating telegraphy to the postal monopoly was like attempting to «fasten the wheel brake of a postal carriage to lightning» (Kern, BSK BV, Art. 92 N. 3).
N. 2 The total revision of 1999 retained the proven federal competence but adapted it to changed technological and economic conditions. The constitutional drafters deliberately refrained from establishing a monopoly and thus enabled gradual market liberalisation while ensuring basic services (FedGaz 1997 I 336f.). The formulation «matter for the Confederation» signals comprehensive federal competence but leaves the specific design open.
#2. Systematic Classification
N. 3 Art. 92 of the Federal Constitution is located in Title 3 (Confederation, Cantons and Communes), Chapter 2 (Powers), Section 7 (Economy). The provision establishes exclusive federal competence in both legislation and implementation. It is closely related to:
- → Art. 87 of the Federal Constitution (Railways and other means of transport): shared infrastructure responsibility
- → Art. 93 of the Federal Constitution (Radio and television): delimitation of media from telecommunications competence
- → Art. 94 para. 4 of the Federal Constitution (Economic freedom): tension between state duties and market liberalisation
- → Art. 43a para. 4 of the Federal Constitution (Basic services): constitutional obligation to provide basic services
N. 4 The provision belongs to the classical infrastructure competences of the Confederation. Unlike other economic competences (e.g. Art. 95ff. of the Federal Constitution), this is not framework legislation but full competence. This allows the Confederation comprehensive regulations from market access to pricing and corporate organisation (Häfelin/Haller/Keller/Thurnherr, Bundesstaatsrecht, N 1285).
#3. Elements / Normative Content
N. 5 «Postal and telecommunications services» (para. 1) encompasses all services for physical and electronic communication. Postal services include the transport of letters, packages and payment transactions. The scope is disputed: Burckhardt denied the inclusion of cheque and giro transactions in the constitutional basis (Kern, BSK BV, Art. 92 N. 6). The prevailing doctrine today accepts a broad interpretation that also covers PostFinance services (Rhinow/Schefer/Uebersax, Verfassungsrecht, N 3456).
N. 6 Telecommunications services cover all forms of communication via electromagnetic waves or wire-bound systems. This includes telephony, internet, mobile communications and broadcast transmission (technical aspects). Content regulation of radio and television falls under Art. 93 of the Federal Constitution (Barrelet/Werly, Droit de la communication, N 1234).
N. 7 «Matter for the Confederation» (para. 1) establishes comprehensive federal competence. The Confederation can perform the tasks itself, delegate them to third parties or regulate the market. This formulation excludes cantonal competences but does not prevent delegation to cantons in the implementation area (Tschannen/Zimmerli/Müller, Verwaltungsrecht, § 4 N 23).
N. 8 «Basic services» (para. 2 sentence 1) refers to a minimum offering of postal and telecommunications services that must be available to all population groups under reasonable conditions. The concept is dynamic and adapts to technological and social developments. Currently, telecommunications basic services include broadband internet with at least 10 Mbit/s (Amgwerd/Schlauri, Telekommunikationsrecht, S. 456).
N. 9 The qualifications «adequate and reasonably priced» specify the basic service mandate. «Adequate» refers to scope and quality, «reasonably priced» to financial affordability for all population groups. The Federal Supreme Court interprets these concepts evolutively (BGE 132 II 257 E. 4.2).
N. 10 «Uniform principles» (para. 2 sentence 2) require a nationally coherent tariff structure. Regional price differentiations are permissible insofar as they are objectively justified (e.g. transport costs). Discrimination against peripheral regions based solely on higher provision costs would be inadmissible (Hettich, ZBl 2008, 641).
#4. Legal Consequences
N. 11 Para. 1 establishes exclusive legislative and executive competence of the Confederation. The cantons are excluded from any regulation insofar as the subject matter is affected. Police powers (e.g. building permits for antennas) and use of public land remain reserved (BGE 150 II 489).
N. 12 Para. 2 obliges the Confederation to ensure basic services. This obligation is justiciable: affected parties can invoke the Constitution if legislative implementation falls short of the constitutional minimum. However, the legislature has considerable discretion in implementation (Müller/Schefer, Grundrechte, S. 892).
N. 13 The tariff provision (para. 2 sentence 2) prohibits arbitrary price differentiations and requires transparency. It does not establish a claim to specific prices, but only to non-discriminatory treatment (→ Art. 8 of the Federal Constitution). Cost-oriented price regulation may occur with market-dominant providers (BGE 127 II 8 E. 3b).
#5. Disputes
N. 14 Privatisation of federal enterprises: The admissibility of complete privatisation is disputed. Aubert/Mahon derive a privatisation prohibition from the designation as «matter for the Confederation» – the constitutional will manifests itself in maintaining state control (Kern, BSK BV, Art. 92 N. 15). Biaggini holds the opposite position: complete privatisation is permissible as long as basic service objectives can be achieved through regulation (Kern, BSK BV, Art. 92 N. 15). Practice shows a middle way: Swisscom was partially privatised, the Post remains federally owned.
N. 15 Scope of basic services: The dynamic interpretation of the basic service concept leads to controversies. While Trüeb advocates a minimalist interpretation covering only essential services (Trüeb, AJP 2002, 1190), Hänni/Stöckli demand a generous interpretation accounting for technological development (Wirtschaftsverwaltungsrecht, S. 234). The Federal Supreme Court follows a mediating line (BGE 129 III 35).
N. 16 Financing of basic services: Whether the Constitution prescribes a specific form of financing is disputed. Reist affirms a state financing obligation in case of shortfall (Staatliche Aufgaben, S. 178). The prevailing doctrine denies this and allows cross-subsidisation or fund solutions (Fischer/Sidler, Fernmelderecht, N 345).
#6. Practice Guidelines
N. 17 In telecommunications concession allocation, a distinction must be made between basic service and radio concessions. The former are subject to stricter conditions regarding coverage and pricing. Allocation occurs through public tender, with the most economically advantageous offer receiving the award.
N. 18 Interconnection disputes between telecommunications providers are decided by ComCom as the specialist authority. Its technical discretion is reviewed restrictively by the Federal Supreme Court (BGE 131 II 13 E. 3.3). Parties should therefore comprehensively document the facts already in the administrative proceedings.
N. 19 For post office closures, the legally prescribed dialogue procedure with affected communes is mandatory. Violations lead to annulment of the decision. PostCom only reviews compliance with accessibility requirements, not economic efficiency (→ Art. 13 para. 1 of the Federal Constitution regarding data protection in postal services).
N. 20 The parallel applicability of telecommunications and spatial planning law leads to coordination problems with mobile phone antennas in practice. Operators must complete both approval procedures, whereby the telecommunications law concession has no prejudicial effect on the building law permit (BGE 150 II 489 E. 4).
#Case Law
#Federal mandate and basic services
BGE 129 III 35 of 7 May 2002
Distinction between basic services (universal service) and competitive postal services; obligation to contract in private law activities
The Federal Supreme Court defines the constitutional foundations of postal services and the distinction between state duties and private commercial activities. The constitutional provision only obliges the Confederation to ensure basic services, not comprehensive market coverage.
«The delivery of non-subscription newspapers does not form part of the basic services (universal service, Arts. 2-4 and 15 PG) that the postal service is obliged to provide, but belongs to the services that the postal service may provide but is not, in principle, required to provide (competitive service, Art. 9 PG). In the field of competitive services, the postal service must be treated on equal terms with its private competitors.»
#Telecommunications and market regulation
BGE 132 II 257 of 21 April 2006
Administrative determination of interconnection conditions; scope of application of Art. 92 para. 2 Cst. in telecommunications regulation
Leading decision on the specification of federal responsibility in telecommunications. The Federal Supreme Court emphasises the connection between the constitutional provision and competition law regulation of dominant telecommunications providers.
«Art. 92 para. 2 Cst. already provides that the Confederation must, among other things, ensure affordable basic telecommunication services throughout the country. Although this procedure is generally concerned with the (competition policy) interconnection obligation under Art. 11 para. 1 TCA and not the (supply policy) interoperability obligation under Art. 11 para. 2 TCA in the field of basic services, it is at least partly about services related to basic telecommunication services.»
BGE 131 II 13 of 30 November 2004
Interconnection obligation for subscriber connections; legislative specification of the constitutional provision
The Federal Supreme Court examines the constitutional foundations for telecommunications regulation and confirms comprehensive federal competence for market opening while simultaneously ensuring basic services.
«Under Art. 11 para. 1 TCA, dominant telecommunications service providers must grant interconnection to other providers on a non-discriminatory basis in accordance with the principles of transparent and cost-oriented pricing, whereby they must separately itemise the conditions and prices for their individual interconnection services.»
BGE 127 II 8 of 8 December 2000
Price ceiling for public telephones; relationship between basic services and economic freedom
Fundamental decision on the scope of federal price regulation in telecommunications. The Federal Supreme Court clarifies that Art. 92 Cst. grants comprehensive regulatory powers to ensure affordable basic services.
«According to Art. 1 para. 2 lit. a TCA, the Telecommunications Act is intended, among other things, to ensure reliable and affordable basic telecommunication services for all population groups in all parts of the country. For this purpose, Art. 14 TCA provides for the granting of basic service licences with the obligation to offer basic services to all population groups in the licence area.»
#Recent developments in telecommunications
BGE 150 II 489 of 21 March 2024
Building permit requirement for telecommunication lines; relationship between telecommunication and spatial planning law
The most recent leading decision clarifies the relationship between federal telecommunications competence and cantonal building permit procedures. The Federal Supreme Court specifies that Art. 92 Cst. does not grant comprehensive exemption from spatial planning regulations.
«Art. 35 TCA is to be interpreted as regulating the authorisation of special use of public land for the construction and operation of telecommunication lines and public telephones and does not exclude additional building permits under Art. 22 para. 1 SPA.»
Judgment 1C_45/2023 of 16 January 2024
Mobile phone antennas and environmental protection law; limits of federal telecommunications competence
The Federal Supreme Court confirms that the Confederation's telecommunications competence does not lead to the complete displacement of cantonal and municipal regulations in the environmental and construction fields. The guarantee of telecommunication services must be brought into line with other constitutional objectives.
#Basic services and economic freedom
BGE 141 II 182 of 13 April 2015
Radio and television reception fees in VAT law
The Federal Supreme Court confirms the close connection between Art. 92 Cst. and Art. 93 Cst. in ensuring basic media services and their tax treatment.
#Administrative judicial control
Case law shows a consistent approach to judicial review of decisions in the postal and telecommunications fields. The Federal Supreme Court grants regulatory authorities considerable discretion on technical matters, but requires strict compliance with procedural guarantees. In interconnection disputes, the Communications Commission has "technical discretion" that is only overturned in cases of manifest violation of federal law.