1The Confederation shall take measures to protect consumers.
2It shall legislate on the legal remedies available to consumer organisations. These organisations shall have the same rights under the federal legislation on unfair competition as professional and trade associations.
3The Cantons shall provide a conciliation procedure or a simple and rapid court procedure for claims of up to a certain sum. The Federal Council determines this sum.
Art. 97 BV obliges the Confederation to protect consumers. This constitutional provision concerns all persons who purchase goods or services for private purposes – not for business or professional use (Uhlmann, BSK BV, Art. 97 N. 3-5).
The article contains three main rules: First, the Confederation must take measures for consumer protection. This is done through laws such as the Consumer Credit Act (Art. 3 KKG), the Food Act (Art. 1 lit. a LMG) or the Unfair Competition Act (Art. 10 para. 2 lit. b UWG). Second, consumer organisations receive the right to sue in court when companies violate competition law. These associations have the same rights as professional associations. Third, the cantons must offer swift and simple court proceedings for smaller disputes.
The Federal Supreme Court has clarified that no one has a fundamental right to consume (Uhlmann, BSK BV, Art. 97 N. 7). However, the Constitution gives the Confederation the mandate to correct structural imbalances between suppliers and consumers (Brunner, SJZ 2001, 241).
A practical example: Anyone who takes out a consumer credit of over 15,000 francs is protected by special provisions. The bank must provide written information about all costs and grant a cooling-off period. For disputes up to 30,000 francs (Art. 243 ZPO), consumers can choose a simplified court proceeding that is cheaper and faster than ordinary civil proceedings.
Consumer protection complements the free market economy by enforcing fair rules of the game and protecting weaker market participants (Koller-Tumler, Grundlagen des Konsumentenschutzes, 12 ff.).
Art. 97 BV is based on the predecessor article 31sexies of the old Federal Constitution (aBV), which was inserted by referendum in 1981 (BBl 1981 II 745). The inclusion of consumer protection in the Constitution was a response to the increasing complexity of consumer goods markets and the structural information asymmetry between suppliers and consumers (Favre-Bulle, AJP 1993, 265). During the total revision in 1999, the provision was largely adopted unchanged as Art. 97 in the new Federal Constitution, but was systematically assigned to the economic provisions (BBl 1997 I 317).
Art. 97 BV is found in Chapter 3 (Economic System) of Title 3 (Confederation, Cantons and Communes) of the Federal Constitution. The provision is in close systematic connection with → Art. 95 para. 1 BV (private economic activity) and → Art. 96 para. 2 lit. a BV (competition policy). This classification emphasizes that consumer protection is understood as an integral component of the Swiss economic system, not as its counterpart (Uhlmann, BSK BV, Art. 97 N. 3). The norm supplements the fundamental rights protection duties of the state (→ Art. 35 BV) in the specific context of consumer relations and concretizes the social objectives (↔ Art. 41 BV) in the area of market economy.
Art. 97 BV contains three distinct regulatory areas. Paragraph 1 establishes a general protection duty of the Confederation in favour of consumers. The term «consumer» encompasses natural and legal persons who acquire goods or services for private purposes, as opposed to commercial or professional use (Uhlmann, BSK BV, Art. 97 N. 3-5). The «measures» may be of a legislative, administrative or informational nature. Paragraph 2 obliges the Confederation to introduce collective action rights for consumer organizations, whereby these must be placed on equal footing with professional and economic associations in the UWG area. Paragraph 3 transfers to the cantons the duty to provide for low-threshold procedures for disputes below a dispute value threshold set by the Federal Council.
The provision primarily establishes a legislative competence and duty of the Confederation. Paragraph 1 does not result in direct applicability or a subjective right to specific protective measures; the Federal Supreme Court has explicitly rejected a fundamental right to consumption (Uhlmann, BSK BV, Art. 97 N. 7). The legislature has considerable discretion in designing protective measures. However, the collective action rights under paragraph 2 must be effectively designed; whether minimal effectiveness is constitutionally guaranteed remains disputed (see N. 5). The cantonal obligation under paragraph 3 was concretized through Art. 243 ff. ZPO, whereby the Federal Council has set the dispute value threshold at CHF 30,000.
The question of whether Art. 97 para. 2 BV guarantees a minimum effectiveness of collective action rights is controversially discussed in legal doctrine. Uhlmann takes the position that at least in light of Art. 97 para. 1 and → Art. 170 BV, the federal legislature would have to correct a blatant inadequacy of collective action rights (Uhlmann, BSK BV, Art. 97 N. 12-15). However, the legislature did not consider these constitutional considerations in the revision of Art. 10 UWG (BBl 2009 6151). Disagreement also exists over the scope of the consumer concept: while the prevailing doctrine includes legal persons insofar as they act as end consumers (SG Komm. BV-Hettich, Art. 97 N. 4), a minority advocates for limitation to natural persons (Koller-Tumler, Grundlagen des Konsumentenschutzes, 15 f.).
When applying Art. 97 BV, it should be noted that the constitutional norm itself does not establish direct legal claims. It develops practical relevance mainly as an interpretative aid in the interpretation of consumer protection provisions of ordinary federal law. Courts regularly consider the constitutional protection mandate when interpreting general clauses in the UWG, KKG or when assessing general terms and conditions (cf. BGE 139 III 201 E. 2). For consumer organizations, Art. 97 para. 2 BV is of central importance as it forms the constitutional basis for their standing to sue. With cantonal procedural codes, it must be examined whether these meet the requirements of Art. 97 para. 3 BV; mere reference to ordinary civil procedure is insufficient (Huguenin, SJZ 1995, 420).
Case law on Art. 97 FC is relatively sparse, as it is a competence norm that mandates the Confederation to take consumer protection measures. Most decisions do not concern the constitutional provision itself, but rather its legislative implementation in special acts such as the Consumer Credit Act (CCA) or the Federal Act against Unfair Competition (UCA). The Federal Supreme Court has clarified the constitutional foundations of consumer protection mainly in the context of standing to sue by consumer organisations and in the interpretation of consumer protection provisions.
BGE 120 IV 154 of 17 May 1994
Legitimacy of consumer protection organisations in unfair competition
Landmark decision on procedural enforcement of consumer protection by associations
«The termination of proceedings for lack of objective elements may affect the assessment of such a civil claim (recital 3c/bb). Professional and trade associations as well as consumer protection organisations are entitled to file federal nullity appeals in the field of unfair competition in their capacity as private prosecutors.»
BGE 126 III 239 of 31 March 2000
Standing to sue of a tourism organisation in competition law
Confirmation of active legitimacy of interest groups in consumer protection
«Active legitimacy under competition law of the Bernese Oberland Tourism Association (recital 1). Internet domain names must maintain the required distance from absolutely protected third-party marks and are subject to the fairness requirement of competition law.»
Consumer credit law as implementation of Art. 97 FC
BGE 139 III 201 of 26 February 2013
Scope of application of the Consumer Credit Act for student loans
Distinction between consumer credit and professional financing
«Anyone who takes out a loan to finance studies does so for a purpose that can be attributed to their professional activity. The CCA is therefore not applicable (recital 2).»
Unfair competition and consumer protection
BGE 123 IV 211 of 7 November 1997
Freedom of expression in statements about the dangerousness of goods
Constitutional interpretation of the UCA taking consumer protection into account
«For third-party statements in leaflets about the dangerousness of a product for human health, when applying the required constitutional interpretation of the UCA, taking into account in particular the fundamental right to freedom of expression, criminal unfair defamation should only be assumed with restraint.»
BGE 133 III 431 of 27 April 2007
Relationship of the UCA general clause to specific offences
Methodological approach to consumer protection in competition law
«Unfair competition. Relationship of the general clause of Art. 2 UCA to the specific offences in Arts. 3 to 8 UCA; methodological approach (recital 4.1-4.3). Application to the concrete case (recital 4.4-4.6).»
Food law as consumer protection
Judgment 2C_413/2015 of 10 March 2016
Package labelling for toothpastes under the Food Act
Administrative enforcement of consumer protection provisions
Judgment 2C_761/2017 of 25 June 2018
Food labelling as preventive consumer protection
Information obligations to protect consumer interests
ZK 2012 706 of 28 January 2013 (Civil Court of Bern)
Formal requirements for consumer credit contracts
Concrete application of the protective principles enshrined in Art. 97 FC
«Art. 9 para. 1 CCA requires that credit contracts be concluded in writing. The contract must additionally contain the information mentioned in para. 2. This is based on the consideration that the consumer should be comprehensively and as precisely as possible informed when concluding the consumer credit contract.»
ZK 2012 269 of 3 September 2012 (Civil Court of Bern)
Inclusion of education loans under the CCA
Systematic interpretation of consumer protection legislation
«From the aspect of social protection, the cases can hardly be compared. From systematic considerations, it appears questionable whether an education loan can be subsumed under the category of 'non-consumer goods' and excluded from the scope of consumer protection legislation.»
Food police measures
VB.2005.00203 of 13 July 2005 (Administrative Court of Zurich)
Declaration of the country of production for iced tea drinks
Preventive consumer protection through information obligations
«Based on the legal foundations in the Food Act and the Food Ordinance, the Cantonal Laboratory considered the declaration 'Made in the EU' as insufficient and required clarification.»
Recent case law shows a tendency towards increased enforcement of consumer protection provisions in the digital sphere. Decisions on telecommunications mediation and online business practices reflect the adaptation of consumer protection to new technologies.
Particularly relevant is the ECtHR decision 41723/14 of 22 December 2020 (SRG/Publisuisse v. Switzerland), which clarified the limits of freedom of expression in consumer protection-relevant advertising and emphasised the importance of the information mandate in broadcasting.
Administrative court practice also shows consistent application of the threshold values according to Art. 97 para. 3 FC, whereby the cantons pursue different approaches in designing simple and expeditious procedures.