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II.Principles of Administrative Action
1. CONSTITUTIONAL PRINCIPLES IN ADMINISTRATIVE LAW
The relationship between constitutional and administrative law may be characterized as one of mutual influence. Administrative law and practice give real substance to the meaning of the Constitution. Some constitutional provisions can be best understood through the lens of the relevant administrative statutes, especially in areas where independent constitutional thinking remains underdeveloped, for example the area of state liability. On the other hand, constitutional principles are essential for the proper application of administrative law.
The key principles of legality, public interest, and proportionality are laid down in Art 5 Constitution (Article 36 Constitution in respect to the restriction of fundamental rights).2 Article 9 Constitution constitutes the protection against arbitrary conduct and principle of good faith and therewith the basis for the doctrine of legitimate expectations.
a)Legal Basis for Administrative Action
The principle of legality (or the rule of law) is prone to many different understandings and, more problematically, many misunderstandings. Most legal traditions foster distinct traits of this principle, and even when internationally understood terms like “the rule of law” are used, the precise meaning often differs from country to country. In essence, the principle of legality refers to the idea of restraining governmental power through law.
It seems that the principle of legality is more comprehensively applied in Switzerland than in other countries, though in a rather flexible manner. The cornerstone of the Swiss concept of legality is that every form of administrative action must be traceable back to a statutory provision: “All activities of the state are based on and limited by law” (Article 5 I Constitution). This provision’s emphasis is on finding a basis that justifies state actions within the law.3
It is important to realize that the principle of legality is not only a challenge to administrative action without a sufficient legal basis but is also a powerful tool directed against the law itself. The principle requires that the legal basis satisfies minimal qualitative requirements.4 There are two key qualitative requirements in Switzerland: first, the legal basis may not be unduly vague and second, important decisions must be taken by the legislator.
The first prohibition which prevents the creation of unduly vague law under the principle of legality is a commonly accepted principle. The Swiss Federal Supreme Court requires that the law must be precise enough to allow citizens to adjust their behaviour according to the legal requirements and to foresee the legal consequences of their behaviour.5 May the legislator, e.g., just stipulate that billboards on houses must be “aesthetically satisfying” and leave the concretization of this rule to administrative agencies and courts? The Swiss Supreme Court has accepted such legislation, acknowledging that every law necessarily contains some vagueness due to its abstract nature, as well as other factors like the limitations of language, the impossibility of regulating every potential future situation, and the need to allow administrative discretion in the performance of official acts or duties.6 The standard of review is higher in cases where there have been significant restrictions, typically those which engage fundamental rights.7 A more deferential standard of judicial review is typical in cases which concern technical areas of the law and where legal areas that are notoriously difficult to regulate are at issue, such as foreign policy.8
The second requirement is that important decisions must be taken by the legislator. The legislator must decide on every important aspect of regulation, as opposed to allowing government or administrative bodies to do so: “All significant provisions that establish binding legal rules must be enacted in the form of a Federal Act” (Article 164 I Constitution). E.g., court practice has established that fees and levies must be regulated by the law, which must clearly identify who must pay what amount in respect of which service.9
Hence, the legal basis of administrative action may be challenged either because of over-vagueness or the lack of legislative basis regarding a certain point of law. If the rule applicable in a certain case covers an important question yet was not enacted by the legislator itself, the principle of legality is violated, even if the rule was precise enough and correctly understood by the administrative authorities.10 It is obvious that the second requirement is closely connected to the matter of delegated or secondary legislation, which will now be discussed in further depth.
Delegated legislation is legislation that the parliament has conferred to the executive branch. It comes in two forms: 1. purely executive and 2. quasi-legislative.
In the first case legislation merely “fills in the gaps” in the law or simply defines a broad term in the law more precisely; here, no delegation clause is needed. The power to enact secondary legislation stems directly from the constitutional mandate of the government to implement and execute legislation (Article 182 Constitution).11
Secondary legislation is considered quasi-legislative if it creates new obligations or deviates from the law; in these cases, a delegation clause is required.12 The delegation clause must fulfil the following prerequisites: 1. The delegation must not be excluded by the Constitution. 2. The delegation clause must be found in the law itself. 3. Delegated legislation can only regulate precisely predefinded and limited aspects. For example, the legislator may not leave it up to an autonomous administrative body to regulate the way it employs its workers: such a competence is simply too broad. 4. Finally, the legislator must outline the broad strokes of the regulation. The legislator must decide upon the important issues of the delegated matter. If any of these four prerequisites is not met, then the principle of legality is violated.13
It is crucial to note that all aspects of the principle of legality may form the basis of an application for full judicial review. For example, a school-boy expelled for bad behaviour may claim that the authorities have no basis for expulsion in his case and thus that they have overstepped their competences. This is a challenge to the application of the law. The school-boy may also contend that his dismissal is unlawful because the statute it is based on is too vague, allowing the authorities unfettered discretion.14 Alternatively, the school-boy may defy the legal basis claiming the expulsion should have been regulated by the law itself and not by secondary legislation due to the importance of the issue – a challenge that was successfully brought forward in 2013 against a school regulation targeting headscarves.15
The principle requires that “state activities must be conducted in the public interest” (Article 5 II Constitution). It is most relevant when taken in consideration together with other principles or rights, particularly regarding proportionality. The public interest principle essentially sets the benchmark for the proportionality test, by introducing the requirement to achieve a proper balance between public and private interests.16
The principle of proportionality is a general requirement that all state action must meet (Article 5 Constitution) and a specific prerequisite in instances where fundamental rights are restricted (Article 36 Constitution).
As is the case with the German understanding of proportionality, in Switzerland the principle encompasses a threefold test based on the consideration of both the end pursued (which typically must be in the public interest) and the means employed. The means must be: (1) suitable (geeignet) to achieve the end; (2) necessary (erforderlich) in the sense that milder means prove inefficient and finally, (3) bearable (zumutbar), i.e. the end sought in the public interest must outweigh the compromised private interest of the individual. All three requirements must be satisfied, or the administrative action (or the law itself) will fail the test. For example, restricting helicopter flights from some ports to protect a certain area in the mountains proves “unsuitable” to achieve the aim if that area may easily be accessed through other ports not falling under the restriction;17 a general prohibition on storing medication abroad on the grounds of better quality assurance is not “necessary” when a quality guarantee can be achieved simply by having the foreign competent authorities conduct inspections (assuming the petitioner’s willingness to bear the additional costs).18 Finally, although the public interest in the establishment of a natural reserve may outweigh the owner’s interest in building houses in the centre of the reserve, it may be considered “unbearable” for the owners at the border of it.19
The protection of legitimate expectations is primarily based on Article 9 Constitution. The crucial starting point in determining whether legitimate expectations have been created and thus require protection is to evaluate the basis that triggered the expectation. The stronger the basis, the higher the level of protection will be. For example, a (formal) administrative act is a stronger basis than information provided by the authorities about an administrative issue.20
One may roughly rank the bases in order of the level of protection they will incur from courts. The most cogent basis for establishing a legitimate expectation is an administrative contract, which if permissibly concluded may even protect the private party against a subsequent adaptation of the law. Rights granted under an administrative contract may be “vested rights” (wohlerworbene Rechte), like the right to property.21 This means that they may only be revoked where due compensation is offered.22
Substantial protection is also offered if a private party has relied on an administrative act (Verfügung). Administrative acts are the cornerstone of administrative action and are analysed in detail below. They have triggered numerous cases on legitimate expectations and a doctrine of non-revocable administrative acts has been developed.23 Administrative acts by their very definition serve to clarify and settle a legal situation. They often govern a legal relationship, which exists over time. In practice it may often become necessary to adapt the administrative act if the legal or factual situation changes. In such a circumstance, however, the legitimate expectation principle can be invoked.24
Many cases involving legitimate expectations stem from government provision of misinformation or incorrect advice.25 This basis is potent enough to lead to the non-application of the law in a specific case and more generally, even when this has the effect of seriously undermining both the law and the government itself. This may be the reason why the courts require that such advice is provided on an individual basis; general information displayed on the governmental website may not be sufficient to create legitimate expectations.26 This approach is understandable in practical terms as preventing the chaos that could ensue from multiple claims being made on the basis of publicly available information. However, logically it is difficult to justify why one should have more trust in a single phone call to a civil servant than in information found in an official governmental announcement. Further requirements developed by the courts for the establishment of legitimate expectations in this manner are that the advice was given without reservation, that it was given by the competent authority and that the factual and legal situation has not changed since the advice was given.27
Finally, no protection stems from administrative passivity.28 In theory, this doctrine means that an illegal situation may never become legal under the doctrine of legitimate expectations. In such circumstances, the authorities can still intervene at any time, even if they tolerated the illegal situation for decades and the private person remained in good faith for the duration of this time. Simultaneously, it seems obvious that courts may be reluctant to uphold such an intervention by the authorities; it may even be relatively safe to assume that the court might find a solution in favour of the private party (possibly relying on the conceptually similar yet distinct principle of good faith, which will be discussed in the following paragraphs).
Regardless of the different potential bases of legitimate expectations, there is one key prerequisite which remains constant: the expectations must always be legitimate. This will not be the case if the private party was aware that the basis was unsound or erroneous. For example, a trained lawyer may not rely on governmental information if a simple review of the law would have proved it incorrect, although this may not be so clear-cut in the case of a layman who relies on such information.29 Hence, an analysis of legitimate expectations is always conducted on a case-by-case basis and involves a consideration of all the details of the individual situation.30
Overall, legitimate expectations include situations where, on the basis of some expectation, an individual makes arrangements which conflict with the correct application of the law. Such arrangements made by individuals may be understood as the manifestation of legitimate expectations.31 The protection is usually stronger if, for instance, a house has already been built based upon building permit, i.e. an administrative act (Verfügung), in a zone not suitable for buildings and must be demolished. On the other hand, the protection of the individual‘s interests may be considered less substantial if only insignificant preparatory work for the house has been executed.32 Clearly, if no arrangements have been made under a legitimate expectation, the principle is typically not applicable.
A fourth requirement for the protection of legitimate expectations is a causal link between the legitimate basis and the arrangements.33 If the house in the previous example had been built before the faulty permit was given, obviously there would not be any causal link between the permit and the arrangements; thus, there are no legitimate expectations to be protected.
The final step a court will take in determining whether a claim of legitimate expectations should be enforced is the conducting of a balancing test between the legality and the expectations. It may be that the basis for the expectations is sound and the (causal) arrangements are substantial but that they do not outweigh the advantages of ensuring the proper application of the law or, perhaps more precisely, the values and interests protected by that law.34 For example, a person who has legitimately but falsely relied on a building permit will have to demolish his or her house if there is a high risk of avalanches in the area: the public interest clearly trumps the financial interests of the owner.35 On the contrary, if the building permit falsely allowed the building of six stories in a zone where the maximum height is five stories, one may generally assume that the house would have to be maintained, provided that the expectations were legitimate in all other regards.
The last example illustrates the potential power the doctrine of legitimate expectations possesses: it may overrule the proper application of the law, because if allowing an exception to the law is the more suitable solution, courts will rather not apply the law in order to protect the legitimate expectations. The application of the principle is flexible, however. Alternative measures can be employed instead: for example, allowing for an additional deadline in cases where incorrect instructions on the right to appeal have been provided or transition periods in cases of abrupt and unexpected changes to administrative practice.36 Compensation is and should be considered as a potential remedy, especially in those circumstances where in principle the legitimate expectations are justified but cannot be upheld in practice due to a more compelling public interest (for example, the aforementioned example of the building in a danger zone). However, courts are relatively reluctant to offer compensation. The cases can be understood as a special form of state liability.37
f)Special Doctrines: Administrative Practice and Retroactivity
Legitimate expectations can also stem from court or administrative practice, not just from action by the legislative or executive branch. Indeed, there is a comparatively strong burden on courts and administrative authorities to maintain consistent practice. Traditionally, this role has been attributed to the equal protection clause but logically it seems to fit better into the doctrine of the protection of legitimate expectations. The protection from changes in court or administrative practice is two-dimensional, based on a formal and a substantive component. The formal component requires that any change of practice should be duly announced so that private parties can adapt their behaviour accordingly. In this respect, a change of practice generates an obligation on the courts or administration which is comparable to that imposed on government to properly publish a new law that is to be introduced.38 If this condition is fulfilled, courts and administrative authorities may choose any suitable means through which to introduce the change of practice. Somewhat in contrast, the substantive component of the test presents an opportunity to mount a substantial challenge to the change of practice, since change is only permissible if three conditions are met: namely, there are valid reasons for the change, the change is categorical, and the interest in the correct application of the law outweighs the interest in legal certainty.39
Only limited expectations are created through the law itself. The Swiss Federal Supreme Court has laconically expressed the view that one must always expect the law to change.40 While this is true, surely there is also an expectation that any change in the law will not be sudden and extremely disadvantageous to those individuals affected by it. Therefore, courts sometimes require the legislator to provide for transitional periods when introducing new legislation; this is an effort to mitigate the associated risks and negative effects. Since such an option is available to courts, it is a relatively rare occurrence for cases claiming a legitimate expectation created by the law itself to arise.41
More protection from a change in the law is available to individuals under the doctrine of non-retroactivity, a principle that has developed independently from the protection of legitimate interests but may, in my opinion, also find its most applicable basis in Article 9 Constitution.42 Courts have intervened against the “proper retroactivity” (“echte Rückwirkung”) of supervening laws regulating facts that evolved entirely in the past, e.g. compensation for unlawful police action at a certain point in time. They have only ruled in favour of such laws when they have identified a clear legislative intent, a substantial public interest, and the intention for the moderate application of retroactivity.43 More deference is given where the law attempts to regulate ongoing circumstances, the so-called pseudo-retroactivity (unechte Rückwirkung).44 For example, the legislator may legitimately lower the salary of a civil servant who is employed for a year after the first six months of employment. However, even in such a case, the protection of legitimate expectations may require that the cut is not overly substantial as the employee is likely to have planned his or her engagement on the assumption of a higher salary for the whole period.45
The principle of good faith has a long tradition in Switzerland. Its original source was Article 2 Swiss Civil Code,46 which targeted the grossly unfair behaviour of private parties: “Every person must act in good faith in the exercise of his or her rights and in the performance of his or her obligations. The manifest abuse of a right is not protected by law.” Later, the principle of good faith was extended to cover behaviour both from and towards the state.47 Nowadays, the principle is found in Article 5 III Constitution (which binds both the state and private parties) and in Article 9 Constitution as a fundamental right.
The principle of good faith forbids both contradictory behaviour and the abuse of rights. The prohibition of contradictory behaviour highlights the closeness of good faith to the protection of legitimate expectations: for example, an authority which requests the demolition of a property revoking an otherwise falsely issued building permit may violate the individual’s legitimate expectations while also acting in a manifestly contradictory manner.48
The allegation of abuse of a right is often the applicant’s last recourse for substantiating a claim. An older case involving a woman who was convicted for the manslaughter of her husband sheds some light on this proposition. Upon being released from prison after serving her sentence, she appeared again before the courts, claiming that she was entitled to a widow’s pension. Apparently, she fulfilled all the necessary qualifications and nothing in the relevant legislation precluded her from getting the pension. However, the Swiss Federal Supreme Court had no difficulty in rejecting her claim for the pension as “legal protection is only given to rights obtained in good faith”.49 The legislator later amended the relevant legislation, bridging an existing gap that up until then had been provisionally filled by court practice relying on the principle of good faith.50
7. PROHIBITION OF ARBITRARINESS (REASONABLENESS)
The prohibition of arbitrariness (Article 9 Constitution) is a very special, probably unique, feature of Swiss administrative and constitutional law. In a nutshell, it prohibits grossly erroneous administrative action, irrespective of whether the fault was legal or factual. A claim of arbitrariness may be invoked against the abuse of administrative discretion or against the violation of accepted legal principles, of reasonableness, or of natural justice.51 In any case, the error by the administration must be manifest – although, as a former Swiss Federal Supreme Court judge cunningly put it, there is nothing more arbitrary than the doctrine of arbitrariness itself. The principle is often invoked when there are – typically for procedural reasons – no more specific grounds at hand to challenge state action.
2See THOMAS FLEINER/ALEXANDER MISIC/NICOLE TÖPPERWIEN, Constitutional Law in Switzerland, Alphen aan den Rijn 2012, pp. 209, PATRICIA EGLI, Introduction to Swiss Constitutional Law, Zurich/St. Gallen 2016, pp. 107.
3ULRICH HÄFELIN/GEORG MÜLLER/FELIX UHLMANN, Allgemeines Verwaltungsrecht, 7th edition, Zurich/St. Gallen 2016, n. 325 et seq.; PIERRE TSCHANNEN/ULRICH ZIMMERLI/MARKUS MÜLLER, Allgemeines Verwaltungsrecht, 4th edition, Bern 2014, § 19 n. 1 et seq.; EGLI, pp. 24.
4HÄFELIN/MÜLLER/UHLMANN, n. 338 et seq.; TSCHANNEN/ZIMMERLI/MÜLLER, § 19 n. 14 et seq.
5BGE 139 I 280, consideration 5.1.
6BGE 139 II 243, consideration 10; HÄFELIN/MÜLLER/UHLMANN, n. 344.
7BGE 130 I 360, consideration ١٤.٢.
8Cf. HÄFELIN/MÜLLER/UHLMANN, n. 389.
9Cf. BGE 135 I 130, consideration 7.2.
10Cf. HÄFELIN/MÜLLER/UHLMANN, n. 351 et seq.
11Cf. BGE 141 II 169, consideration 3.3; HÄFELIN/MÜLLER/UHLMANN, n. 100.
12HÄFELIN/MÜLLER/UHLMANN, n. 96 et seq.
13HÄFELIN/MÜLLER/UHLMANN, n. 368; TSCHANNEN/ZIMMERLI/MÜLLER, § 19 n. 38.
14BGE 129 I 35, considerations 7.8 et seq.
15BGE 139 I 280.
16HÄFELIN/MÜLLER/UHLMANN, n. 461 et seq.; TSCHANNEN/ZIMMERLI/MÜLLER, § 20 n. 1 et seq.
17BGE 128 II 292, consideration ٥.١.
18BGE 131 II 44, consideration ٤.٤.
19BGE 94 I 52, consideration ٣.
20HÄFELIN/MÜLLER/UHLMANN, n. 668 et seq.
21HÄFELIN/MÜLLER/UHLMANN, n. 1237.
22HÄFELIN/MÜLLER/UHLMANN, n. 1242 and 1244.
23HÄFELIN/MÜLLER/UHLMANN, n. 628 and 1231.
24HÄFELIN/MÜLLER/UHLMANN, n. 1228.
25HÄFELIN/MÜLLER/UHLMANN, n. 667 et seq.
26Cf. HÄFELIN/MÜLLER/UHLMANN, n. 669.
27HÄFELIN/MÜLLER/UHLMANN, n. 676 et seq.
28Cf. HÄFELIN/MÜLLER/UHLMANN, n. 651.
29Cf. for false instructions on the right to appeal BGE 135 III 374, consideration 1.2.2.2.
30See e.g. BGE 137 I 69.
31HÄFELIN/MÜLLER/UHLMANN, n. 659.
32HÄFELIN/MÜLLER/UHLMANN, n. 1252.
33HÄFELIN/MÜLLER/UHLMANN, n. 663.
34HÄFELIN/MÜLLER/UHLMANN, n. 664.
35See Federal Supreme Court decision 1C_567/2014 of 14 July 2014, consideration ٥.٢.
36HÄFELIN/MÜLLER/UHLMANN, n. 704.
37See HÄFELIN/MÜLLER/UHLMANN, n. 706; PIERRE TSCHANNEN, Systeme des Allgemeinen Verwaltungsrechts, Bern 2008, n. 291.
38Cf. HÄFELIN/MÜLLER/UHLMANN, n. 595 et seq.
39HÄFELIN/MÜLLER/UHLMANN, n. 591 et seq.; TSCHANNEN/ZIMMERLI/MÜLLER, § 23 n. 16.
40Cf. BGE 134 I 23, consideration 7.5.
41HÄFELIN/MÜLLER/UHLMANN, n. 641.
42HÄFELIN/MÜLLER/UHLMANN, n. 266.
43See, inter alia, BGE 138 I 189, consideration 3.4.
44HÄFELIN/MÜLLER/UHLMANN, n. 284; TSCHANNEN/ZIMMERLI/MÜLLER, § 24 n. 28.
45Federal Supreme Court decision of 15 December 1976, consideration 4 (printed in Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht 78 [1977], pp. 267).
46Swiss Civil Code of 10 December 1907, SR 210; see for an English version of the Civil Code www.admin.ch (https://perma.cc/DV8N-FFT2).
47See BGE 76 I 187; BGE 78 I 294; BGE 79 III 63.
48See HÄFELIN/MÜLLER/UHLMANN, n. 713.
49Decision of the former Federal Insurance Court (now integrated in the Federal Supreme Court) EVGE 1951, p. 205, pp. 206. (cited after HÄFELIN/MÜLLER/UHLMANN, n. 725).
50Cf. HÄFELIN/MÜLLER/UHLMANN, n. 725.
51BGE 141 I 70, consideration ٢.٢.