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III.Institutional Framework

1. ADMINISTRATIVE AUTHORITIES

The administrative authorities themselves play a vital role in providing effective legal protection in administrative law. As was briefly explained above,30 before the introduction of the current Swiss Constitution often only hierarchically higher administrative bodies were competent to grant legal protection against action taken by bodies lower in rank. This was problematic regarding the fact that these superior bodies were not institutionally independent. However, it is important not to underestimate the level of protection these bodies offered. First, these bodies, often affiliated with the office of Justice of the canton or at the very least staffed with qualified lawyers, developed high standards of judicial protection. Secondly, the superior administrative bodies are usually well aware of the daily work of the lower units, hence strengthening administrative oversight. Finally, administrative control within the public administration has the practical advantage of allowing full scrutiny: whereas courts typically do not review questions of administrative discretion, supervisory administrative bodies show less if any restraint.31

The Swiss cantons also execute a substantial amount of federal law: the typical legal recourse against such action first involves going to the hierarchically higher administrative bodies. This can potentially encompass up to three instances, including a review by the cantonal executive.32 Following this, the applicant may turn to the cantonal administrative courts. These courts must uphold Article 29a Constitution meaning that they must at least conduct a full review of questions of law and facts. After a review by the cantonal administrative courts, most cases can be taken to the Swiss Federal Supreme Court (Bundesgericht, Tribunal fédéral, Tribunale federale). The Swiss Federal Supreme Court typically only reviews questions of law.33

Administrative acts of the federal administration can be taken to the Swiss Federal Administrative Court (Bundesverwaltungsgericht, Tribunal administratif fédéral, Tribunale administrativo federale). Judicial control by a higher administrative body is the exception rather than the rule for action taken in the federal system. However, it does have some practical significance in areas that are excluded from judicial protection such as measures to safeguard internal security; in these cases, control may be partly exercised by the Swiss Federal Council. According to existing legislation, the Federal Administrative Court reviews questions of law, facts, and administrative discretion. However, judicial practice over time has led to the courts typically exercising some restraint in the latter area; part of the rationale here is that cases involving administrative discretion often require specialised technical understanding, or knowledge of the local circumstances or subjective factors (for example, this may be the case for administrative decisions regarding exams).34 As a general rule, decisions of the Swiss Federal Administrative Court may be challenged before the Swiss Federal Supreme Court. However, some subject matter areas such as cases on immigration and asylum, exams, and subsidies are fully or partially excluded from Federal Supreme Court review (Article 83 lit. c and t Federal Supreme Court Act), hence rendering the Federal Administrative Court the court of last national instance.

2. COURTS

As highlighted above, judicial control by the courts is a constitutional guarantee under Article 29a Constitution. Hence, most administrative acts may be challenged before an administrative court directly (like the acts of the federal administration) or indirectly via recourse to higher administrative bodies (e.g. acts of the cantonal administration).35 The law may only “preclude the determination by the courts of certain exceptional categories of case” (Article 29a Constitution).

Figure 1: Appeal System before Cantonal (State) and Federal Authorities36

The most important restriction on judicial control in Switzerland is not one of the previously outlined exceptions; it is Article 190 Constitution. According to that provision, the “Federal Supreme Court and the other judicial authorities apply the federal acts and international law”. As a consequence of this provision, the constitutional review of federal laws is not permitted, or more precisely, Swiss courts must apply federal laws even if they are considered to be unconstitutional.37 Judicial practice has carved out some exceptions to court abstinence, such as in the case of federal laws, which violate the ECHR. The Swiss Federal Supreme Court will not apply a federal law in conflict with the ECHR. Still, a substantial part of federal legislation is not subject to court nullification in the case of a violation of the Constitution. Swiss cantons, e.g., cannot sue the federal government for overstepping its competences if federal action is based on federal law.

The rationale behind Article 190 Constitution is that the last word on questions of constitutionality should not be given to a court but to the legislator itself, as this is the authority with the highest degree of democratic legitimation. The federal legislator is not above the Constitution but above constitutional control; it is officially bound by the Constitution and must respect it. This means that the federal Parliament itself must decide upon questions of the constitutionality of federal laws – which it regularly does, supported by the expert opinion of the Federal Department of Justice. Several attempts by the Swiss government to abolish Article 190 Constitution have failed; Parliament has thus far refused to allow a shift in power to the courts, which in my view is regrettable.

Notably, Switzerland does not have a special constitutional court. Instead, constitutional questions may be decided by every Swiss court including cantonal courts and courts that decide upon civil or penal matters. In concrete cases, constitutional questions may even be decided by administrative bodies. Hence, Switzerland has opted for a so-called “diffuse” system of constitutional review,38 closer to the US court system than to the German model of concentrated constitutional review.

According to the Administrative Procedure Act, “[t]he appellate authority shall itself make the decision in the case or in exceptional cases shall refer the case back to the lower instance and issue binding instructions” (Article 61 I Administrative Procedure Act). A referral back to the lower instance administrative authority is typically made if further fact-finding has to be done by the lower instance or if the lower instance may use its discretion to decide the case.39

Both appellate administrative authorities and the courts may grant interim relief. Typically, an appeal automatically has suspensive effect.40 As the Administrative Procedure Act declares, a court may also take “other precautionary measures […] to preserve the current situation or to temporarily safeguard interests that are at risk” (Article 56 Administrative Procedure Act). Swiss courts typically approach the question of whether to grant suspensive effect or precautionary measures by conducting a balancing test between the interests of the state and those of private parties. If they believe that the eventual result of the case is clear, they also may take the probable outcome into account in considering the granting of such measures.41 Such decisions are often of great practical importance: cases on public procurement often do not continue once the public authority has legally concluded the contract with its chosen private partner; if the suspensive effect is denied, the claimants may only recover their costs from the procedure but not conclude the contract.

3. OTHER BODIES AND PROCEDURES

In the federal system, special committees which serve as courts have been abolished, with the exception of the Independent Complaints Authority for Radio and Television. The committees have been replaced by the Federal Administrative Court which is competent in all matters decided by the federal administration.42 In the cantons, special committees still exist, most notably in the areas of construction, taxes and culture.43

In some cantons, the institution of the Ombudsman has some practical significance.44 On the federal level, an initiative to introduce the Ombudsman failed. There are however two independent, personalised functions of control of state-regulated prices (Eidgenössischer Preisüberwacher) and of data protection and transparency of the public administration (Eidgenössischer Datenschutz- und Öffentlichkeitsbeauftragter, EDÖB). Both may resort to the use of legal remedies but the most efficient tools available to them are negotiation with the administration and informing the public on its rights. The “EDÖB” may also initiate legal proceedings against private parties; he has done so in an important case against Google (google street view)45.

Another route through which parties can challenge administrative action is Alternative Dispute Resolution (ADR), recently introduced into the Administrative Procedure Act. Article 33b I Administrative Procedure Act establishes that the court “may suspend the proceedings with the consent of the parties in order that the parties may agree on the content of the ruling”. It may encourage the parties to reach an agreement by appointing a neutral mediator. The provision has not been in force long enough to make any useful comment on its practical consequences.

4. EUROPEAN PERSPECTIVE

As Switzerland is not a member of the EU, EU law is not directly applicable in Switzerland. However, it may be relevant due to the bilateral treaties or due to an autonomous decision by the Swiss authorities to implement EU law (autonomer Nachvollzug).46 EU law is largely irrelevant in terms of the substantive legal protection available in Switzerland; the procedure is predominantly dictated by domestic Swiss law.

Switzerland is currently in the process of negotiating an institutional agreement to ensure the more consistent and efficient application of its present and future agreements with the EU. If Switzerland can conclude such an institutional agreement with the EU, questions of jurisdiction would be a core element. An agreement would clearly influence the administrative process in matters involving EU law. However, negotiations do not appear likely to come to a successful end any time soon.

In contrast, the legal protection now available in administrative matters has certainly been influenced by the jurisprudence of the European Court of Human Rights, namely to grant court review in administrative matters. As explained above, it was deemed insufficient for protection from the administration to only encompass “civil matters”; it is necessary for such protection to also apply to areas technically falling under Swiss administrative law. The European Court of Human Rights is still influencing administrative procedure in Switzerland, recently for example in cases, which concern the right to reply. The Swiss Federal Supreme Court has now shaped a practice that seems to be consistent with European Court of Human Rights requirements: all documents submitted in court procedures must be forwarded to the parties.47 In administrative procedures this requirement extends to all relevant documents submitted to authorities and courts.

30See pp. 221.

31KIENER/RÜTSCHE/KUHN, n. 13.

32KIENER/RÜTSCHE/KUHN, n. 42.

33See the grounds for appeal in Articles ٩٥ et seq. Federal Supreme Court Act.

34HÄFELIN/MÜLLER/UHLMANN, n. 444.

35See, for an overview, FLEINER/MISIC/TÖPPERWIEN, p. 110.

36Uhlmann, p. 313.

37KIENER/RÜTSCHE/KUHN, n. 1763.

38KIENER/RÜTSCHE/KUHN, n. 1719.

39KIENER/RÜTSCHE/KUHN, n. 1649 et seq.

40For details see Rhinow et al., n. 680 et seq.

41KIENER/RÜTSCHE/KUHN, n. 1330.

42Rhinow et al., n. 787 et seq. and 1416.

43KIENER/RÜTSCHE/KUHN, n. 1402.

44HÄFELIN/MÜLLER/UHLMANN, n. 1768 et seq.

45BGE 138 II 346.

46See the chapter on International Relations, pp. 165.

47See BGE 137 I 195.