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.
#Leading Federal Supreme Court decisions
#Standing to sue of consumer organisations
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
#Lower courts and specialised case law
#Consumer Credit Act in practice
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 developments
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.