Home › Country › Switzerland
Switzerland

Switzerland - Monitoring report

Date of the monitoring visit: from 23 to 25 January 2015
Report adopted on: 20 October 2017
Files : Report CG33(2017)14 | Recommendation 407 (2017)
All Monitoring Reports

This particularly positive report is based on the second monitoring visit to Switzerland since the country ratified the European Charter of Local Self-Government in 2005. It shows that municipal self-government is particularly deeply rooted in Switzerland. All municipalities possess a wide range of powers and responsibilities and substantial rights of self-government. The financial situation of Swiss municipalities appears generally healthy, with a relatively low debt ratio. Direct-democracy procedures are highly developed at all levels of governance. Furthermore, the rapporteurs very much welcome the Swiss parliament’s decision to authorise the ratification of the Additional Protocol to the European Charter of Local Self-Government on the right to participate in the affairs of a local authority.

 

The report draws attention to the need for improved direct involvement of municipalities, especially the large cities, in decision-making procedures and with regard to the question of the sustainability of resources in connection with the needs of municipalities to enable them to discharge their growing responsibilities. Finally, it highlights the importance of determining, through legislation, a framework and arrangements regarding financing for the city of Bern, taking due account of its specific situation.

 

The Congress encourages the authorities to guarantee that the administrative bodies belonging to intermunicipal structures are made up of a minimum percentage of directly elected representatives so as to safeguard their democratic nature. The rapporteurs also recommend that the Swiss authorities, in consultation with the cantons, provide for the possibility of extending the scope of the Charter to the cantons. Finally, the Congress calls on the authorities to ratify Articles 4.4, 6.2, 8.2 and 9.5 of the Charter, which are complied with de facto in Switzerland.

legend
Article ratified Ratified with reservation Non ratified
Compliance Partial compliance Non compliance To be determined
Unfold all
Fold all
Article 2
Constitutional and legal foundation for local self government - Article ratified

The principle of local self government shall be recognised in domestic legislation, and where practicable in the constitution.

The previous Constitution of the Swiss Confederation of 1874 included no specific provisions regarding municipalities. The revision of the Constitution in 1999 for the first time recognised municipal autonomy, in a new Article 50, thus giving more visibility and legitimacy to the municipalities as institutions. This article guarantees municipal self-government in accordance with cantonal law (paragraph 1). Therefore, the cantonal constitutions and laws determine the scope and limits of municipal self-government. Generally speaking, the rights enshrined in the Charter are reflected in the legislation on municipal self-government passed by the cantons. In view of the principle of cantonal sovereignty set out in the Federal Constitution, the Confederation is not legally able to force cantons to respect municipal self-government, since it is mainly a cantonal competence. In other words, the commitments entered into on signing the European Charter of Local Self-Government legally bind the Confederation, not the cantons, and yet it is the cantons’ responsibility to ensure the Charter’s implementation without the Confederation directly intervening through federal laws, for example. The Federal Court, an organ of the Confederation, can order compliance with the principles of municipal self-government if asked to hear an appeal. The cantons must abide by its judgments. It has competence for guaranteeing observance of the requirements of the European Charter of Local Self-Government, which may be invoked before it.

 

On the other hand, the Confederation has full competence for implementing Article 50 of the Federal Constitution, which imposes certain obligations on the Confederation. Article 50, paragraph 2, of the Constitution requires the Confederation to take account of the consequences of its actions for municipalities in general, while paragraph 3 requires it to take into consideration the situation of towns, urban agglomerations and mountain regions in view of their specific situation. Even though it is enshrined in the Federal Constitution, within the limits of cantonal law, municipal self-government is not specifically recognised by all the cantonal constitutions. Those which do so also use differing terminology. Some constitutions refer to “municipal matters” (Article 5, paragraph 2, of the Constitution of Aargau; Article 119, paragraph 1, of the Constitution of Glarus; Article 65 of the Constitution of Grisons; Article 68, paragraph 2 of the Constitution of Lucerne; Article 105 of the Constitution of Schaffhausen; Article 45, paragraph 2, of the Constitution of Solothurn; Article 85, paragraph 1, of the Constitution of Zurich). Others refer to the municipalities’ “own field of activities” (Article 71 of the Constitution of Nidwalden; Article 83, paragraph 1, of the Constitution of Obwalden) or even to “local responsibilities” (Article 44, paragraph 2, of the Constitution of Basel-Landschaft; Article 69 of the Constitution of Valais).

 

The delegation was informed of the Federal Council’s report of 13 May 2015 on the implementation of Article 50 of the Constitution, which points out that the guarantee of municipal self-government enshrined in the Constitution is not binding and cannot be invoked by municipalities before the Confederation. For the latter, the provision is essentially of political value. However, some Swiss legal specialists maintain that a minimum level of institutional autonomy must be guaranteed to the municipalities by the Confederation. The municipalities can file final appeals to the Federal Court in the event of violations of their rights of self-government (Article 189 of the Constitution). Beyond its great symbolic and therefore political impact, Article 50 of the Constitution reflects the importance acquired by towns and urban areas in Switzerland today. As for the mountain regions, these were already mentioned in the previous Constitution.

 

Furthermore, paragraphs 2 and 3 of Article 50 of the Constitution impose new obligations on the Confederation, because the latter must take municipal interests into consideration as well as the unique situation of towns, urban areas and mountain regions. Since the new Constitution’s entry into force on 1 January 2000, the federal authorities have adopted a series of measures in order to implement Article 50 of the Constitution.

 

On 16 October 2002 the Federal Council issued guidelines for the federal administration concerning co-operation between the Confederation, the cantons and the municipalities. Moreover, under Article 141, paragraph 2, of the law of 13 December 2002 on the Parliament relating to the substance of messages from the Federal Council to the Chambers, an “aide-mémoire” on the presentation of these messages was adopted, which contains instructions on presenting the consequences of the Confederation’s activity for the cantons and municipalities, particularly with regard to financial and human resources, and for the towns, urban areas and mountain regions. The law of 18 March 2005 on consultation (Article 4, paragraph 2, c) provides that “the umbrella organisations of municipalities, towns and mountain regions operating at national level” shall be invited to give their opinions during the preparatory work on Confederation acts which affect them. The participation of these organisations in the legislative process, which was already in effect, is therefore now legally guaranteed.

 

Consequently, the rapporteurs consider that Switzerland is in compliance with the requirements of Article 2 of the Charter.

Article 3.1
Concept of local self government - Article ratified

Local self-government denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.

Swiss municipalities are characterised by extreme diversity, not only in terms of size and socio-economic structures, but also in terms of the scope of their autonomy since they are governed by the cantonal constitutions and laws. The latter accord the municipalities own competences, the extent of which varies depending on the canton. The responsibilities most often assumed by the municipalities concern the education sector (nurseries, primary schools and secondary schools), the health sector and the social sector (social assistance, home care services, care for the elderly, responsibilities linked to the social insurance system), water and electricity supplies, waste water and rubbish treatment, public transport, construction (local development planning, building regulations and permits, conservation of the landscape and historic monuments, road networks, and sport and cultural facilities), the local police (fire department, traffic police, regulation of trade and commerce), financial matters (setting the tax rate, drafting the budget, managing municipal property) and citizenship (granting civil rights to foreign residents).

 

In municipalities without a parliament, municipal citizens elect the members of the executive council and vote on all municipal legislation as well as the municipal budget and accounts. Citizens normally exercise their political rights within the municipal assemblies (Gemeindeversammlung), which meet several times a year. Therefore, they directly participate in municipal decision-making along with the members of the executive council. This type of direct democracy is very widespread at municipal level. However, it transpires that citizen participation in these municipal assemblies is often limited. For example, in the municipality of Oetwil an der Limmat (Canton of Zurich), which the delegation of the Congress was able to visit, approximately 1700 citizens have the right to vote (out of 2363 inhabitants), but municipal assemblies are attended by only 60 to 100 people, a fact that may be considered a sign of confidence in the municipal council, which has only five members.

 

In municipalities with parliaments, municipal citizens elect deputies to the municipal parliament. In most cantons, the municipality can choose the electoral system, often opting for proportional representation. The number of members in the parliament varies depending on the population of the municipality. Executive council members are also elected by the citizens, except in Neuchâtel where they can be elected by the parliament. Municipal citizens also participate in direct democracy procedures where these exist (signing requests for a referendum and initiatives).

 

The composition of the municipal electoral body is determined by cantonal law, but a certain degree of autonomy may be left to the municipalities. For their part, the cantons must respect Article 39, paragraph 2, of the Federal Constitution, which provides that political rights are to be exercised in the municipality in which a citizen resides, and paragraph 4 of the same article, which adds that a citizen shall be entitled to vote, notably in municipal matters, no later than three months after moving there. Most cantons make active and passive electoral rights in municipalities (the right to vote and the right to stand for election) subject to the same conditions as those that determine the rights of cantonal citizens: Swiss nationality, age (in the Canton of Glarus the minimum age is set at 16 years old), residence and no deprivation of civic rights. In five cantons (Neuchâtel, Jura, Vaud, Fribourg and Geneva), cantonal law directly grants foreigners the right to vote in municipal matters. In the Cantons of Appenzell Ausserrhoden, Grisons and Basel-Stadt, cantonal law allows municipalities to grant these rights to foreigners, while in the Canton of Thurgau, foreigners are entitled to participate in debates on municipal affairs.

 

The rapporteurs consider that the situation in Switzerland is in compliance with Article 3 of the Charter.

Article 3.2
Concept of local self government - Article ratified

This right shall be exercised by councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage, and which may possess executive organs responsible to them. This provision shall in no way affect recourse to assemblies of citizens, referendums or any other form of direct citizen participation where it is permitted by statute.

Consult reply indicated at article 3.1

Article 4.1
Scope of local self government - Article ratified

The basic powers and responsibilities of local authorities shall be prescribed by the constitution or by statute. However, this provision shall not prevent the attribution to local authorities of powers and responsibilities for specific purposes in accordance with the law.

In principle, the scope of municipal competence is not guaranteed by the cantonal constitutions. These constitutions establish municipal self-government in general terms, but it is very rare that they indicate the areas in which municipalities enjoy autonomy. Municipal competences are set by cantonal laws, with the result that cantonal law-makers are able to modify the distribution of powers between the canton and the municipalities in a way that is unfavourable to the latter, without being considered to have breached the principle of municipal self-government, as long as they do not impinge upon municipal autonomy. Municipalities’ competences can be divided into two groups: firstly, the compulsory responsibilities imposed on them by federal or cantonal law, for example, local development planning or municipal regulation of construction projects; and secondly, the responsibilities that the municipalities have decided to assume as neither the Confederation nor the cantons are responsible for them, for example the construction of sports or cultural facilities.

 

The general principle, expressly established by some cantonal constitutions, is that of a general residual competence of municipalities (for example: Article 26 of the Constitution of Aargau, Article 122, paragraph 1, of the Constitution of Glarus). Therefore, in addition to the responsibilities entrusted to them by their respective cantons, or more rarely by the Confederation, the municipalities determine their own competences in several fields coming under the local level of government in accordance with a general residual competence.

 

The municipalities’ competences include certain areas of policing, such as the traffic police, combating noise pollution and the regulation of trade and commerce. They also enjoy a certain degree of autonomy in managing public spaces and administrative assets. For instance, in the Canton of Zurich, the municipalities have significant powers regarding the use of public spaces. They can issue regulations and enjoy considerable discretion in such matters. Regulating construction projects (building features) is also mainly a municipal competence. The municipalities also ensure the supply of utilities to construction sites (water, electricity). They are also competent for certain public works (sports facilities, roads, theatres, museums, etc.) and for many industrial and commercial public services (water and electricity supplies, roads maintenance, etc.). The municipalities are also empowered to grant municipal citizenship. Any citizen of a municipality is a citizen of the canton in which that municipality is located and any citizen of a canton is also a citizen of a municipality in that canton (Article 37, paragraph 1, of the Constitution).

 

Municipal self-government also exists in legislative and administrative matters. With regard to legislation, the municipality’s law-making powers may be exercised in a field that the cantonal or federal law-makers have not exhaustively regulated. This competence may exist either for the field as a whole, or for a specific sector thereof in accordance with federal or cantonal legislation.

 

A recent comparative study, which takes into consideration seven dimensions of municipal self-government (particularly legal, political, financial and administrative autonomy) and how they are applied in the 26 Swiss cantons, showed that culture is the key variable explaining the difference in local autonomy between the cantons. German-speaking Switzerland is clearly characterised by a higher degree of autonomy than French-speaking Switzerland.

 

Another classification of cantonal decentralisation shows that there are five groups of cantons: firstly, large decentralised cantons (Grisons, Thurgau and Zurich) in which municipal sovereignty is preserved; secondly, small decentralised cantons (Appenzell Innerrhoden, Appenzell Ausserrhoden, Glarus, Schwyz, Obwalden and Nidwalden) that have a political culture which is traditionally conservative and strong local self-government; thirdly, large balanced cantons (Bern, Lucerne, Saint Gallen, Aargau, Uri, Solothurn and Valais) characterised by the prevalence of a Germanic political culture; fourthly, small balanced cantons (Basel-Stadt, Jura, Schaffhausen and Basel-Landschaft); and lastly, the centralised cantons of Geneva, Neuchâtel, Fribourg, Vaud and Ticino, where an egalitarian political culture leads to greater centralisation.

 

It is also apparent from a recent study carried out at the request of the European Commission (Local Autonomy Index for European Countries, 1990-2014, Brussels, European Commission), which takes 11 variables, particularly financial variables, into account, that Switzerland, along with the Nordic countries and Germany, is among the countries with the highest local autonomy.

 

Although the principle of subsidiarity is expressly provided for under the Federal Constitution with regard to the relationship between the Confederation and the cantons (Article 5a of the Constitution), the rapporteurs are of the opinion that the distribution of responsibilities between the cantons and the municipalities is a result of historical developments and political power dynamics which vary depending on the canton concerned. Therefore, it is not possible to affirm that the principle of subsidiarity is enforced in a general and systematic way in relations between the cantons and the municipalities.

 

In any event, the rapporteurs consider that the distribution of responsibilities between the cantonal and municipal levels may change over time. For example, after the entry into force of the reform on financial equalisation and the distribution of responsibilities between the Confederation and the cantons (RPT) in 2008, the distribution of competences between the cantons and the municipalities was reconsidered so as to clarify the situation. In addition, the delegation noted that in recent years, an ever-growing number of responsibilities have been transferred from the municipal to the cantonal level. This can be explained not only by the fact that the smallest municipalities are no longer able to execute certain responsibilities, but also because new legal provisions adopted at the federal level have led to developments in cantonal law that are not very conducive to municipal self-government, such as the reorganisation of civil protection in the 1990s, or the protection of minors and adults in the current decade.

 

In principle, municipal competences are full and exclusive, but some have been transferred in a context of intermunicipal co-operation. Several scenarios must be distinguished here. Firstly, it is possible that one municipality assumes a responsibility, not just for itself but also for other municipalities (the commune-siège (“headquarters municipality” model) based on an affiliation agreement. In addition, some municipalities may jointly assume a specific responsibility; this too is based on an agreement and the municipalities appoint common bodies competent for this purpose. Lastly, several municipalities may jointly decide to transfer the execution of a responsibility to a legal person separate from the municipalities themselves (for example, a union of municipalities).

 

Intermunicipal co-operation concerns in particular sectors such as firefighting, medical care and schools. In some sectors more than 65% of municipalities have an agreement with one or more other municipalities. There is a strongly growing trend to transfer municipal responsibilities to intermunicipal co-operation structures; the small size of most Swiss municipalities’ accounts for their incapacity to fulfil a number of responsibilities independently, due to a lack of sufficient human and financial resources. Some responsibilities are shared between the municipalities and the cantons (education for example).

 

The rapporteurs note, however, that the establishment of a fourth administrative tier, an intermediate level between the municipalities and the cantons to which essential municipal responsibilities are transferred, raises the issue of the democratic legitimacy of the administrative bodies belonging to these intermunicipal structures. While it is true that the municipalities are represented within these bodies, there is no guarantee that the representatives will have been elected. For this reason, the rapporteurs consider that, in this context, it would be preferable to provide that these institutions must include a minimum percentage of elected representatives (for example, 50%) so as to safeguard their democratic nature given the fewer opportunities for direct democratic participation by citizens.

 

The municipalities themselves implement several measures decided at Confederation or cantonal level. With regard to the execution of federal law, municipalities deal with civil status matters, political rights, housing, statistics, civil protection, taxation and environmental protection. As regards cantonal law, they take execution measures particularly in the field of education. They are also responsible for collecting municipal, cantonal and federal taxes. When they are vested by the canton or the Confederation with the mere execution of certain responsibilities, the municipalities have only a small degree of autonomy in practice, their role being limited to that of executing bodies. However, in certain cases municipalities enjoy a margin of autonomy in the enforcement of cantonal or federal law, if higher-ranking law does not lay down detailed rules on the matter concerned and thus leaves the municipalities a greater or lesser degree of discretion.

 

Under Article 50 of the Federal Constitution, the Confederation authorities (Parliament, Federal Council and Federal Administration) are required, in their different activities (legislation, programming, public works, financial decisions, etc.), to evaluate the effects of this activity on the municipalities and to avoid negative effects as far as possible. This requirement is not an obligation to achieve a specific result, but rather a best efforts obligation, a rule of conduct that the federal authorities must endeavour to respect, both in the implementation of the law and in its execution, which leaves Confederation bodies a certain margin of appreciation.

 

The federal authorities must therefore have sufficient information to evaluate the consequences of their actions for municipalities. To encourage the exchange of information and in-depth discussion, there are tripartite working groups made up of representatives from the federal administration, the intercantonal conferences concerned and the associations of municipalities concerned. Such cooperation exists in the social, cultural, health, asylum, immigration, housing, e-government, public transport and regional planning fields. In some more specialised fields, there are also bilateral contacts between directorates of federal offices and the intercantonal conferences, or more rarely, with associations of municipalities.

 

In addition, a Tripartite Conference on Agglomerations (TCA) was established on 20 February 2001. It is a political forum making it possible for the Confederation, cantons, towns and municipalities to work closely together on the implementation of a policy shared by the Swiss agglomerations. The tripartite commission meets twice a year and brings together representatives of the Confederation (Chancellery, Justice, Secretariat for Migration and the Federal Office for Regional Development), members of the Conseil d’Etat, cantonal representatives and representatives of associations of municipalities. Apart from fostering the exchange of information, this conference aims to increase co-operation within the agglomerations and to resolve certain problems encountered by the latter. Between 2001 and 2014 the TCA focused in particular on strategic planning and the development of the agglomerations policy. It also developed institutional collaboration models and recommendations in specific fields, particularly concerning foreigners and integration. It produced a report on the integration of rural areas in the tripartite collaboration. The TCA does not have any decision-making power. Above all it aims to help the various stakeholders to exchange information, to consult each other and to develop common solutions. It is the only collaboration forum between the Confederation, the cantons and the municipalities which focuses on different political issues. In 2017 the TCA became the “Tripartite Conference” and its scope was extended to rural areas.

 

The rapporteurs note that several consultation bodies also provide a way for municipalities to express their opinions. At Confederation level, the Law on Consultation of 18 March 2005 (Article 4, paragraph 2c) provides that umbrella organisations of municipalities, towns and mountain regions operating at national level shall be invited to give their opinion as part of the legislative process. Therefore, the participation of these organisations in the legislative process is guaranteed by law, and it usually takes place in the form of hearings held as part of the Confederation Parliament’s work on proposals affecting municipalities.

 

The rapporteurs note, however, that the municipalities are never directly consulted on an individual basis by the Confederation authorities, although they are able to submit their observations and opinions through the intermediary of the cantons (municipal representatives sit in the cantonal parliament) or through their associations. During the visit, the delegation was informed that large cities such as Zurich would like to be consulted directly, without going through intermediary bodies, in matters such as essential reforms, especially those concerning taxation.

 

In addition, there are consultation procedures for municipalities at the cantonal level. The cantonal authorities carry out the necessary consultations every time it is a question of modifying a law that affects municipalities. Municipal authorities can also file petitions at cantonal level. The municipalities may also come together at cantonal level within associations destined to serve as interlocutor with the cantonal authorities. The delegation was informed about the example of the Canton of Jura, where the Jura association of municipalities has existed since 2009.

 

It emerged from the interviews between the Congress delegation and the representatives of the city of Zurich that the consultations are sometimes considered insufficient. For example, in relation to the business tax reform (which was finally rejected by referendum on 12 February 2017), the city of Zurich considers that the Confederation and the canton did not sufficiently consult the large cities affected by the reform, despite the fact that this reform would have led to a loss of income of approximately 300 million Swiss Francs for the city of Zurich alone (in other words, 10% of its overall resources).

 

The rapporteurs consider that, even though the consultation procedures take into consideration the interests of the municipalities expressed through the Association of Swiss Municipalities or the Union of Swiss Towns, large cities, especially those with more than 100 000 inhabitants (Zurich, Geneva, Basel, Lausanne, Bern and Winterthur) may also have specific interests to put forward in certain areas (taxation, town planning, transport, etc.). It would be desirable that the consultation bodies and procedures grant these large cities a specific status, in other words they should represent themselves rather than being represented by associations which, inevitably, act on behalf of a more general collective interest.

 

In this connection, the rapporteurs consider that, so as to allow the Confederation to pay greater heed to the potential consequences of its actions on the municipalities and to the unique situation of the cities, urban agglomerations and mountain regions (as provided for in paragraphs 2 and 3 of Article 50 of the Constitution), municipal representatives should be more involved, in the same way as cantonal representatives, in the expert committees and working groups tasked with drafting acts at federal level. This integration of municipalities in the decision-making process from the stage of the preparatory work would make it possible to better take into account municipal interests.

 

By way of example, the rapporteurs refer to the close dialogue existing between the three administrative levels regarding regional planning. The Swiss Territory Project approved in 2012 by the federal government, the cantons and the municipalities constitutes a point of reference for cantons and municipalities in regional planning matters. The cantons are competent for drafting a master plan (with a 15-year outlook) that is approved by the Confederation and which, as a result, is binding at all levels, especially with regard to plans which may be adopted at municipal level.

 

The rapporteurs consider that the situation in Switzerland is in compliance with Article 4, paragraphs 1, 2, 3, 5 and 6 of the Charter.

Article 4.2
Scope of local self government - Article ratified

Local authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority.

Consult reply indicated at article 4.1

Article 4.3
Scope of local self government - Article ratified

Public responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.

Consult reply indicated at article 4.1

Article 4.4
Scope of local self government - Non ratified

Powers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law.

The delegation reiterates that Article 4.4 has not been ratified by Switzerland.

Article 4.5
Scope of local self government - Article ratified

Where powers are delegated to them by a central or regional authority, local authorities shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions.

 

Consult reply indicated at article 4.1

Article 4.6
Scope of local self government - Article ratified

Local authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decision-making processes for all matters which concern them directly.

 

Consult reply indicated at article 4.1

Article 5
Protection of local authority boundaries - Article ratified

Changes in local authority boundaries shall not be made without prior consultation of the local communities concerned, possibly by means of a referendum where this is permitted by statute.

 

Over half of the municipalities have under 1 200 inhabitants, whereas 80% of the municipalities have less than 10 000 inhabitants, meaning that approximately half of the Swiss population live in municipalities. These municipalities are on average among the smallest in Europe, with the exception of those in France, Greece and Iceland. It is obvious that the smaller municipalities are, the more limited their ability to carry out their responsibilities in an autonomous manner. As a result, these responsibilities may be transferred to other municipalities in the framework of intermunicipal co-operation (entailing a loss of fiscal autonomy) or sometimes centralised at the level of the canton. Mergers between municipalities are therefore a relevant alternative.

 

Ideally, the municipalities should be able to implement the majority of their traditional responsibilities (primary education, social aid, water supply and treatment, local roads, fire-fighting services, and so on) autonomously and only rely on co-operation with other municipalities to fulfil a small number of responsibilities. This objective could be reached if Switzerland had between 800 and 1 000 municipalities. The average number of inhabitants per municipality would then be 9 000. The number of Swiss municipalities is expected to decrease by 700 within the next 20 years.

 

Municipalities seldom merged prior to 1990, but over the last 25 years they have merged with increasing frequency. In the mid-nineteen-nineties, there were still 3 000 municipalities. Today there are fewer than 2 300. Over the past few years the largest numbers of mergers have taken place in the cantons of Grisons, Jura, Vaud, Schaffhausen, Glarus, Ticino and Neuchâtel. In the Canton of Zurich, the move towards mergers began some five years ago and the number of municipalities decreased from 171 to 168.They will soon number 165. In the Canton of Jura there were 83 municipalities in 2008 and there are now only 57 left (four mergers are currently planned).

 

In the majority of cases, the decision to merge municipalities requires the approval of the inhabitants of the municipalities concerned, with the result that small municipalities can prevent a merger. There are two main reasons for refusing the merger: the inhabitants’ sentimental attachment to the municipality’s identity (in particular its name) and the fear of municipalities where local taxation is relatively low that the transfer of tax-raising powers to the new municipality will mean higher taxes. The laws of most cantons provide for the possibility of merging municipalities, even against their will, if there is a major regional interest, even if that interest is difficult to prove. In the Canton of Jura, Article 69b of the Law on Municipalities of 9 November 1978 stipulates that the parliament may, by means of a decree, decide to merge one municipality with another. This decision may be taken, by way of exception, when a municipality refuses to merge with one of several other municipalities and it cannot operate autonomously for one of the following reasons: a) it depends, on a long-term basis and to a significant degree, on resources that derive from financial equalisation; b) it has in the past regularly failed to fill all the posts on municipal bodies; c) it depends to a large extent on collaboration with one or several neighbouring municipalities. The Parliament must consult the municipal councils of the municipalities concerned before taking its decision.

 

In the Canton of Bern, Article 4h of the Law on Municipalities of 16 March 1998 stipulates that its Executive Council is responsible for approving decisions to merge, adopted by the municipalities concerned (voluntary mergers). The Executive Council gives its approval if the merger is in keeping with the law and provided there are no major cantonal interests opposing it. If the Executive Council has not accepted a voluntary merger of municipalities, the parliament of the canton (the Grand Council) gives its opinion after consulting the municipalities concerned.

 

On a proposal from the Executive Council, the Grand Council can also order that municipalities be merged against their will if the municipality is no longer in a position to autonomously carry out its responsibilities over the long term because it: a) repeatedly presents a balance sheet deficit and there is no possibility in the medium term of redressing the situation; b) can no longer guarantee the ability of its bodies to operate as a result of the on-going inability to fill important offices or administrative posts; or c) does not, for a prolonged period of time, comply with the provisions laid down by the Confederation, the canton or the national churches regarding the execution of important municipal responsibilities (Art. 4,i). The Grand Council must take account, in particular, of the geographical, historical, cultural, economic and financial conditions, as well as of co-operation between the municipalities concerned. Finally, on a proposal from the Executive Council, it may order the merger of more than two municipalities against their will if the majority of the municipalities concerned and of voters approved the merger in a referendum.

 

As the rapporteurs were informed, the cantons generally prefer to use financial incentives to merge, in the form of a reduction in taxes or of grants. For example, in the Canton of Zurich, the 2016 Law on Municipalities provides for a procedure for merging municipalities and the financial incentives to be offered by the canton. Indeed the administrative and financial support of the cantons appears to be decisive where mergers are concerned. All of the cantons which have succeeded in merging municipalities have offered financial incentives, whereas no mergers have taken place in cantons where there is no provision for such incentives. It should also be noted that a revised Constitution of the Canton of Uri was adopted by the population on 22 September 2013, facilitating the merger of municipalities and avoiding the need to revise the constitution each time a merger is to take place: revised Article 67 of this constitution no longer refers to all of the municipalities of the canton by name.

 

It appears that the European Charter of Local Self-Government, and in particular Article 5 providing for the consultation of local authorities prior to any changes in local authority boundaries, is often referred to by the municipalities in the context of merger procedures. Indeed the delegation was informed of a judgment handed down by the Federal Court on 3 June 2016 (ATF 142 I 216), which explicitly refers to Article 5 of the Charter in a dispute concerning the procedure for merging municipalities in the Canton of Ticino (see below).

 

In light of the above information, the rapporteurs conclude that Switzerland is in compliance with Article 5 of the Charter.

Article 6.1
Appropriate administrative structures and resources for the tasks of local authorities - Article ratified

Without prejudice to more general statutory provisions, local authorities shall be able to determine their own internal administrative structures in order to adapt them to local needs and ensure effective management.

The self-government of the municipalities translates into a right for the municipalities to determine their own administrative structures. They establish their own authorities, determine the number of members on the legislative and executive bodies and choose the system of election. The municipalities’ administrative bodies vary greatly, depending on the size of the municipalities. Large towns have a substantial administration, while small municipalities may only have two or three local government officials, often working part-time. As a rule, the administration is divided into directorates (or dicasteries), according to the areas of the municipalities’ responsibilities: training, security, planning, roadworks, culture, and so on. The heads of these directorates are appointed by the executive and are answerable to it.

 

The rapporteurs would mention the special role played by the Municipal Secretary. In municipalities where members of the executive exercise their functions in addition to another occupation, the Municipal Secretary has considerable influence on the affairs of the municipality. For example, he or she is responsible for co-ordinating the administration of the municipality, for advising the authorities, and for preparing the working sessions of the executive and legislative bodies and of various committees. Some municipalities have even entrusted the Secretary with the management of the entire administration, making him or her a real City manager, responsible for implementing the decisions taken by the executive.

 

There are no standard regulations applicable to staff working for the municipalities. Each municipality is free to recruit staff as it wishes. The municipalities have a wide margin of discretion in this field, with the result that it is not easy to identify standard practices. The staff regulations stipulate the different categories of staff. Officials, for example, are the persons appointed by the executive to work full time or part-time in a specific post for an indefinite period of time. Some Swiss municipalities employ persons on the basis of private law contracts, in particular for missions of limited duration.

 

The municipal council decides on the regulations governing staff working for the municipality and the salary scales, although such regulations are not compulsory. However, there are links between the rules and regulations of the cantons and those of the municipalities, as the latter sometimes adopt some of the rules and regulations applied by the canton. The regulations governing federal officials may also serve as a reference. The Executive Council recruits and appoints municipal staff. It also fixes their salaries and exercises disciplinary authority. The number of staff employed by the municipalities obviously varies considerably according to their size. Municipalities with fewer than 500 inhabitants employ on average two persons in their central administration. In municipalities of over 50 000 inhabitants the municipal administration may employ up to 3 000 staff or even more.

 

It should also be pointed out that voluntary work is a typical feature of social and political life in Switzerland, in particular in the municipalities. It is an important aspect of the services offered by the municipalities but may vary considerably according to the municipalities concerned. Without such voluntary and optional work, the municipalities, in particular the smallest ones would currently be unable to function.

 

The delegation concludes that the situation in Switzerland is in compliance with Article 6, paragraph 1 of the Charter. The rapporteurs underline that Article 6.2, though not ratified, is respected in Switzerland.

Article 6.2
Appropriate administrative structures and resources for the tasks of local authorities - Non ratified

The conditions of service of local government employees shall be such as to permit the recruitment of high-quality staff on the basis of merit and competence; to this end adequate training opportunities, remuneration and career prospects shall be provided.

The delegation reiterates that Article 6.2 of the Charter has not been ratified by Switzerland. 

 

Article 7.1
Conditions under which responsibilities at local level are exercised - Article ratified

The conditions of office of local elected representatives shall provide for free exercise of their functions.

In view of the large number of municipalities, the number of municipal councillors involved in managing the municipalities is particularly high (some 110 000). The municipalities (like the parliaments of the Confederation and the cantons) function according to the “militia system”, which is a longstanding historical tradition. The militia system means that members of the public volunteer to fulfil public responsibilities or public office, outside of their profession and in an honorary capacity, and receive very little if any payment for their work. This system has the advantage of making citizens responsible for local affairs and avoiding the formation of a caste of professional politicians. In some cantons (such as Uri) the inhabitants are even obliged to fill such posts.

 

Nevertheless, the rapporteurs note that the militia system is currently encountering difficulties, in particular at the level of the municipalities where it is becoming increasingly difficult to find enough candidates to stand for election at local level, because it is proving hard to strike a balance between professional activities and the responsibilities that go with municipal posts. The rapporteurs believe that the militia system may lead to certain socioeconomic profiles being placed at an advantage in terms of access to elective offices.

 

There is a high degree of autonomy in this respect as every municipality is free to decide on its own rules governing the financial compensation that can be granted to local elected representatives for the performance of their duties. It is impossible to harmonise the situation because the cantons do not have authority to intervene in such matters. Although the rapporteurs are aware that neither the Confederation nor the cantons have the authority to intervene directly in a field which is the sole responsibility of the municipalities, we nevertheless think that the three levels of administration (Confederation, cantons and municipalities) should together consider what changes could be made to improve the militia system currently in force, as it has reached its limits.

 

It is the municipalities themselves which decide which functions and activities are incompatible and there is no uniform legislation in this field.

 

In conclusion, the situation in Switzerland with regard to the application of Article 7, paragraph 3, of the Charter is entirely satisfactory. Moreover, the rapporteurs conclude that the situation is more or less compliant with Article 7, paragraph 1. The reason for their reservation here is that this article is closely connected to paragraph 2 of Article 7, which has not been ratified by Switzerland. As Article 7, paragraph 2, relates to appropriate financial compensation, the lack of a guarantee of that compensation may in some cases lead to a status of local elected representative that does not allow the individual concerned freely to exercise his/her functions as guaranteed by Article 7, paragraph 1. Nevertheless, the rapporteurs are unable to comment on non-compliance with Article 7.2 because Switzerland has not ratified it, and have consequently decided to consider Article 7, paragraph 1, separately and therefore to conclude that it is complied with.

Article 7.2
Conditions under which responsibilities at local level are exercised - Non ratified

They shall allow for appropriate financial compensation for expenses incurred in the exercise of the office in question as well as, where appropriate, compensation for loss of earnings or remuneration for work done and corresponding social welfare protection.

The delegation reiterates that Article 7.2 of the Charter has not been ratified by Switzerland.

Article 7.3
Conditions under which responsibilities at local level are exercised - Article ratified

Any functions and activities which are deemed incompatible with the holding of local elective office shall be determined by statute or fundamental legal principles.

Consult reply indicated at article 7.1

Article 8.1
Administrative supervision of local authorities' activities - Article ratified

Any administrative supervision of local authorities may only be exercised according to such procedures and in such cases as are provided for by the constitution or by statute.

The delegation reiterates that Article 8.2 of the Charter has not been ratified by Switzerland.

 

Decisions taken by the municipalities, irrespective of whether they are administrative decisions or financial decisions (budgets), are supervised by the cantons. The conditions under which this supervision is carried out are stipulated in the cantonal constitutions and laws; the conditions may therefore vary considerably from one canton to the next. For example, Article 111 of the Constitution of the Jura stipulates that: “1 The municipalities are under Government supervision. 2 In particular the Government supervises their financial management and the execution of the responsibilities allocated to them by the Confederation and the Canton. 3 If the Government notices any irregularities, it takes the measures provided for by law. 4 In very serious cases, it may suspend the municipal bodies and replace them by extraordinary administrative arrangements. 5 In cases where it is impossible to constitute the municipal bodies, the Government establishes extraordinary administrative arrangements”. In all cantons, there are specialised supervisory services (Office for the Municipalities, for example, in the Canton of Zurich). Supervision may also be carried out by one or another of the departments of the cantonal government.

 

With regard to administrative decisions, the competent departments examine the lawfulness of the decisions adopted by the municipal councils. If a decision is taken in breach of the laws and regulations of the canton, the cantonal government (State Council) may declare the decision null and void. In principle, the expediency of administrative decisions taken by the municipalities is not subject to scrutiny if the municipality is taking action within its sphere of competence, in other words in matters which come within its sphere of autonomy.

 

This type of scrutiny can however be exercised with regard to the financial choices made by municipalities; the canton and the municipality concerned must then discuss the expediency of such decisions, which might, for example, exceed the fiscal capacity of the municipality. With regard to financial decisions, some cantons impose relatively strict obligations on municipalities, in particular the obligation to balance their budget. This is the case in the Canton of Geneva and in the Canton of Zurich. In the Canton of Geneva, the municipal budget must be balanced. It is possible to run a deficit equivalent to depreciation, provided that the excess is covered by net revenue. In this case, the municipality is obliged to draw up a financial plan to be implemented until the situation is redressed and which must be approved by the ministry. Other than this specific case, if a municipality refuses, without a valid reason, to balance its budget, the cantonal authorities deal with the situation either by reducing expenditure or by increasing surcharges (centimes additionnels), which seldom happens in practice.

 

Several cantons have placed restrictions on municipal indebtedness. Specific restrictions of this kind are under discussion in some towns and municipalities. Only two cantons (Geneva and Vaud) have set up a Court of Audit. In the other cantons, supervision of the effectiveness of public expenditure is limited, owing to the lack of adequate supervisory bodies. Supervision of expediency may also be carried out with regard to the decisions taken by the municipalities in performing the responsibilities delegated to them by the cantons. In practice there are seldom disputes as it is considered preferable to have recourse to negotiation and compromise.

 

The rapporteurs conclude that Switzerland is in compliance with Article 8, paragraphs 1 and 3 of the Charter.

Article 8.2
Administrative supervision of local authorities' activities - Non ratified

Any administrative supervision of the activities of the local authorities shall normally aim only at ensuring compliance with the law and with constitutional principles. Administrative supervision may however be exercised with regard to expediency by higher-level authorities in respect of tasks the execution of which is delegated to local authorities.

Consult reply indicated at article 8.1

Article 8.3
Administrative supervision of local authorities' activities - Article ratified

Administrative supervision of local authorities shall be exercised in such a way as to ensure that the intervention of the controlling authority is kept in proportion to the importance of the interests which it is intended to protect.

Consult reply indicated at article 8.1

Article 9.2
Financial resources of local authorities - Article ratified

Local authorities' financial resources shall be commensurate with the responsibilities provided for by the constitution and the law.

Consult reply indicated at article 9.1

Article 9.8
Financial resources of local authorities - Article ratified

For the purpose of borrowing for capital investment, local authorities shall have access to the national capital market within the limits of the law.

Consult reply indicated at article 9.1

Article 9.7
Financial resources of local authorities - Non ratified

As far as possible, grants to local authorities shall not be earmarked for the financing of specific projects. The provision of grants shall not remove the basic freedom of local authorities to exercise policy discretion within their own jurisdiction.

The delegation reiterates that paragraphs 5 and 7 of Article 9 of the Charter have not been ratified by Switzerland.

Article 9.6
Financial resources of local authorities - Article ratified

Local authorities shall be consulted, in an appropriate manner, on the way in which redistributed resources are to be allocated to them.

Consult reply indicated at article 9.1

Article 9.5
Financial resources of local authorities - Non ratified

The protection of financially weaker local authorities calls for the institution of financial equalisation procedures or equivalent measures which are designed to correct the effects of the unequal distribution of potential sources of finance and of the financial burden they must support. Such procedures or measures shall not diminish the discretion local authorities may exercise within their own sphere of responsibility.

The delegation reiterates that paragraphs 5 and 7 of Article 9 of the Charter have not been ratified by Switzerland.

Article 9.3
Financial resources of local authorities - Article ratified

Part at least of the financial resources of local authorities shall derive from local taxes and charges of which, within the limits of statute, they have the power to determine the rate.

Consult reply indicated at article 9.3

Article 9.1
Financial resources of local authorities - Article ratified

Local authorities shall be entitled, within national economic policy, to adequate financial resources of their own, of which they may dispose freely within the framework of their powers.

Swiss municipalities have genuine tax-raising powers and this means that they have a generally satisfactory level of own resources. Some 70% of the revenue of the municipalities is constituted by own resources, which is one of the highest levels in Europe. They are free to use these resources as they wish, provided that the cost of mandatory responsibilities is covered. 99. Where large municipalities are concerned, the financial resources appear, on the whole, to be proportionate to their responsibilities under the cantonal constitutions and laws. On the other hand, the financial resources of small municipalities sometimes prove to be insufficient, with the result that they have to set up intermunicipal co-operation structures or consider merging. Another difficulty encountered by the municipalities is that they are sometimes given an increased number of responsibilities without a corresponding increase in resources.

 

Although the cantons appear to have complete fiscal sovereignty, the municipalities’ autonomy is restricted insofar as they can only raise taxes within the limits of the authorisation given to them by the Constitution or the laws of the canton. They therefore have only delegated fiscal sovereignty. The municipalities may either freely determine the rate of their own taxes, or add a surcharge to the basic cantonal tax rates (the system of centimes additionnels). The main taxes that exist at the level of the municipalities are income tax and wealth tax, taxes on profits and capital, inheritance and gift taxes, real estate taxes, property taxes, property transfer taxes, business tax and dog licences.

 

The federal law on the harmonisation of the direct taxation of the municipalities and cantons (LHID) adopted on the basis of Article 129 of the Constitution, which came into force on 1 January 1993, gives instructions to the cantonal and municipal lawmakers concerning the principles they should apply in fixing the rules and regulations governing tax liability, the tax-bearing object and the relevant tax periods, as well as the rules of procedure and of criminal law on taxation. The federal law does not contain any provisions concerning tax rates, scales or amounts, as responsibility for fixing these lies with the cantons and the municipalities (Art. 1.3, LHID). The LHID therefore only harmonises the form but not the level of taxation.

 

The tax resources of the municipalities appear to be sufficiently diversified and buoyant to allow the municipalities to fulfil all of their responsibilities. The financial situation of the municipalities is generally satisfactory. The level of indebtedness of the municipalities remains stable and is relatively low. There are very few municipalities in financial difficulties. However, it seems that over the last few years several municipalities or towns have reached their limits of their margin of manoeuvre in financial policy matters and that they have had to introduce cost-saving measures.

 

The cantons can also introduce a system of financial equalisation among the municipalities. Financial equalisation concerns financial transfers between the canton and the municipalities as well as between the municipalities themselves. The majority of the cantons have reorganised their intermunicipal financial equalisation along the lines of the new federal model of financial equalisation, while still taking their own specific needs into account.

 

In the Canton of Geneva, there is a system of horizontal financial equalisation with regard to the income tax applied to natural persons between the municipalities where they work and those where they live. Moreover, the weaker the latter are in financial terms, the larger the share of cantonal taxes they receive. Where the taxation of legal entities is concerned, the municipalities only receive the centimes additionnels they have voted in respect of 80% of cantonal taxes, the remaining 20% being subject to taxation at the average municipal rate, the proceeds of which are distributed every year among all of the municipalities, in light of their financial capacity. The latter also serves to allocate a number of cantonal grants (vertical financial equalisation). For example, only the financially weak municipalities receive grants for the construction of school buildings and in some cases sports facilities.

 

The cantonal authorities and the municipalities agree on the arrangements for the equalisation and redistribution of resources. The latter are consulted not only on the establishment of the financial equalisation system but also on its evolution according to procedures which may vary between cantons.

 

Unlike the share of their revenue which the municipalities are free to use as they wish, grants are allocated for a precise objective: operating assistance for a specific body, or financial assistance in building a particular facility. The same applies to compensatory payments paid to a local public authority for a service of benefit to the entire region: For example, the Canton of Geneva pays the City of Geneva an annual sum of 13 million Swiss francs to maintain its roads. The grants received by the municipalities in the Canton of Geneva concern annual operational responsibilities: civil protection instruction and equipment, the fire and rescue services of the City of Geneva, sports events and equipment, and notably land improvements, without forgetting the cantonal share of some 15 million Swiss francs granted to the joint municipal out-of-school activities service; payment of sums due for services provided on behalf of the confederation (civil protection) or from other municipalities (the state transfers to the City of Geneva the sums paid by the other municipalities for the fire and rescue service); investments such as schools, sports facilities and public civil protection shelters; financial assistance with investments, federal grants from the State of Geneva, for public civil protection shelters for example.

 

Civil protection provides an example of a mechanism of multiple transfers in respect of both operational and investment budgets. Federal legislation makes cantonal assistance a condition for payments to the municipalities; this explains why the money is first paid into the cantonal budgets and then transferred to the municipalities. The latter may therefore receive operational grants and investment grants from both the Confederation and the canton at the same time, and sometimes even compensatory payments for a particular service. On the other hand, while they receive these five categories of grants for civil protection activities, they must also participate in the financing of mandatory private shelters built by private individuals.

 

In principle, authorisation to borrow, which is decided by a vote of the municipal council, must first be approved by the cantonal government. Loans must be used only to part finance investments, since the municipality must ensure sufficient self-financing of its amenities. As for sources of borrowings, the municipalities apply for bank loans. In the Canton of Geneva, for example, the municipalities can borrow from the Banque Cantonale de Genève, of which they and the Canton of Geneva are majority shareholders. Large municipalities may issue public debt. Others get together with the local authorities of other cantons to issue such debt. Given the positive conditions of the Swiss capital market, the Swiss municipalities do not in principle borrow from other countries.

 

The rapporteurs consider that Switzerland complies with Article 9, paragraphs 1, 2, 3, 4, 6 and 8 of the Charter.

Article 9.4
Financial resources of local authorities - Article ratified

The financial systems on which resources available to local authorities are based shall be of a sufficiently diversified and buoyant nature to enable them to keep pace as far as practically possible with the real evolution of the cost of carrying out their tasks.

Consult reply indicated at article 9.1

Article 10.1
Local authorities' right to associate - Article ratified

Local authorities shall be entitled, in exercising their powers, to co-operate and, within the framework of the law, to form consortia with other local authorities in order to carry out tasks of common interest.

So long as they abide by cantonal legislation, municipalities are free to decide on the forms of co-operation that they wish to establish. Intermunicipal co-operation (or collaboration) is very common in Switzerland and is being used more and more to carry out responsibilities. Thus every municipality in Switzerland collaborates with other municipalities in about ten fields on average. The most common fields for collaboration are firefighting, health care, school education, sewage, care and support for the elderly, refuse, social security and water supply. Co-operation often involves costly, infrastructure-intensive responsibilities that small municipalities in particular have trouble managing on their own.

 

Intermunicipal co-operation is an alternative to merging municipalities. It is a way for municipalities to improve their efficiency whilst keeping their identity and autonomy. In practice, however, insufficient democratic legitimacy and the complexity of co-ordinating different intermunicipal organisations stand in the way of this solution.

 

In the Swiss cantons, intermunicipal co-operation has developed mainly through two instruments of public law: - The intermunicipal agreement, in particular, which lays down methods of co-operation for a specific purpose for action in a single field (education, water or energy supplies, land-use planning). - The intermunicipal consortium, a body governed by public law, which is intended for joint performance of one or more public responsibilities.

 

On 23 September 2009 the Parliament of Jura amended its Law on Municipalities to allow the establishment of urban consortia. Municipal consortia are often used to manage intermunicipal matters (transport, schools), but it seems that the way in which they are managed is not very democratic, since the municipalities are represented on consortia management bodies by representatives who are not necessarily members of the elected body.

 

Other co-operative bodies also exist for urban centres. For example, the Canton of Bern, after amending its constitution and Law on Municipalities, has established an intermediate institution between the canton and the municipalities that is known as a “regional conference”, an “authority governed by municipal law for the purpose of regional co-operation among municipalities on a binding legal basis” (Article 110a of the cantonal constitution), which was set up pursuant to a joint decision by the electorate and the municipalities. The role of a regional conference is to prepare regional structure plans (transport, urban development). Cultural policy and regional responsibilities are determined according to the legislation on regional policy. Municipalities can also delegate other responsibilities to the new institution, which has its own decision-making and financial-management bodies.

 

Co-operation can also be pursued through “metropolitan conferences”, as is the case in Zurich, where the metropolitan conference brings together on a voluntary basis 120 municipalities and eight cantons around Zurich. This private-law body has a board and two chambers (one for the municipalities and one for the cantons) that meet twice a year. This metropolitan conference represents shared interests and can initiate joint projects for transport, the environment and social and economic development, which can then be implemented by the authorities concerned.

 

The rapporteurs note that municipalities are able to join forces to protect their common interests.

 

The Union of Swiss Towns, founded in 1897, protects the interests of Switzerland’s towns and urban municipalities, providing them with various services. For a long time, municipalities with more than 10 000 inhabitants were considered to be towns. In December 2014, the Federal Statistical Office provided a new definition based on population density, employment and overnight stays. With the new definition, Switzerland has 162 statistical towns. 84% of the population live in these towns and the urban areas surrounding them. Membership of the Union of Swiss Towns is open to municipalities with at least 5000 inhabitants that, by tradition and as a result of their development, are urban in nature (a cantonal capital, for example). The Union of Swiss Towns has 130 members. Cities such as Zurich and Geneva, but also urban areas such as Meyrin and Riehen and smaller towns such as Burgdorf and St Moritz, all belong to it. The Union of Swiss Towns thus represents some three quarters of the Swiss population. These areas also account for 84% of the country’s economic activity.

 

The Union of Swiss Towns regularly participates in the Confederation’s consultation procedures, sits on the Confederation’s expert commissions and constantly liaises with the federal administration, Parliament and the parliamentary committees. The Association of Swiss Municipalities was founded in 1953 and now covers over 70% of all the municipalities in Switzerland. Its main aims are to strengthen municipal self-government and the municipalities’ capacity for self-management and to protect the interests of Swiss municipalities in the federal state by seeking to influence federal legislation. To assist municipalities with their daily responsibilities, the Association of Swiss Municipalities offers various services: auditing of annual accounts and special audits; preparation of financial plans and financial analysis; training for municipal officials and authorities, etc.

 

It should also be reiterated that the Tripartite Conference on Agglomerations (TCA) is an important forum for dialogue between Switzerland’s various institutional levels. Supported by the Confederation, the Conference of Cantonal Governments, and associations of towns and municipalities, the TCA adopts mutually agreed positions on important policy matters. In 2017 its field of action was extended to rural areas, and it has thus been renamed the “Tripartite Conference”.

 

Lastly, municipalities in the same canton can join forces to facilitate dialogue with the canton. Thus in 2009, for example, municipalities in Jura established the Association of Jura Municipalities (AJC). This important partner allows regular contact between the cantonal authorities and the AJC committee and assembly on issues of current concern involving both the canton and the municipalities.

 

Municipalities can forge co-operative ties with other municipalities in other cantons provided that this is allowed by cantonal law. Co-operation with municipalities in neighbouring countries may also be instituted, but only if the cantons to which the Swiss municipalities belong are authorised by federal legislation to enter into agreements with entities abroad.

 

In general, cross-border co-operation is growing in importance. It should here be noted that the Karlsruhe agreement signed on 23 January 1996 between Switzerland, Germany, France and Luxembourg has considerably facilitated this co-operation at the local level by allowing municipalities and associations of municipalities in the cantons concerned to sign agreements directly with authorities in neighbouring countries, particularly for transport.

 

The rapporteurs consider that Switzerland is in compliance with Article 10 of the Charter.

Article 10.2
Local authorities' right to associate - Article ratified

The entitlement of local authorities to belong to an association for the protection and promotion of their common interests and to belong to an international association of local authorities shall be recognised in each State.

Consult reply indicated at article 10.1

Article 10.3
Local authorities' right to associate - Article ratified

Local authorities shall be entitled, under such conditions as may be provided for by the law, to co-operate with their counterparts in other States.

Consult reply indicated at article 10.1

Article 11
Legal protection of local selfgovernment - Non ratified

Local authorities shall have the right of recourse to a judicial remedy in order to secure free exercise of their powers and respect for such principles of local self-government as are enshrined in the constitution or domestic legislation.

If a municipality considers its autonomy to be infringed, it has various remedies at both the cantonal and federal levels. At cantonal level, remedies vary from one canton to another. Generally, however, municipalities are able to use the administrative courts. At the federal level, municipalities can bring a constitutional claim before the Federal Supreme Court if their autonomy is violated (Article 189, paragraph 1(e), of the federal constitution and sections 82, 89.2c and 95c of the Federal Supreme Court Act of 17 June 2005). Article 189, paragraph 1(e), of the federal constitution provides that the Federal Supreme Court shall hear disputes concerning violations of “the autonomy of the municipalities and other cantonal guarantees to public-law institutions”.

 

Actions for violation of municipal self-government can be brought not only by “political municipalities” but also by citizens’ municipalities (“communes bourgeoises”) and by special-purpose municipalities. Individuals, on the other hand, cannot plead a violation of municipal self-government as a cause of action in itself; they can plead it only as a preliminary question, in support of other grounds, if they hold, for example, that a cantonal decision encroaching on a municipality’s authority also restricts their constitutional rights or that the act that they are challenging as the principal issue also infringes municipal self-government. Appeals brought by municipalities against cantonal decisions are admissible if the latter affect the municipalities as holders of public authority, in their exercise of self-government, or in their very existence. The Federal Supreme Court can find in favour of a municipality if it is satisfied that the impugned decision affects the municipality in a field in which it is self-governing and in a manner prohibited by cantonal law.

 

The Federal Supreme Court has been led to determine a minimum standard for local self-government that would be applicable in each of the 26 cantonal legislations. Following the position adopted in 1967 (Federal Supreme Court, Gemeinde Volketswil judgment, 93 I 154) the scope of municipal self-government no longer depends on the nature of the powers exercised (own powers or delegated powers) or how the cantonal authority supervises these powers. A municipality is self-governing in all the fields in which cantonal law allows it “fairly significant decision-making authority” although the adequacy of the measures that it takes on the strength of this authority may be subject to review. In other words, a municipality is self-governing if it is free to make its own choices, on its own authority, on the basis of options that it determines itself. This judicial test of municipal self-government thus seems to be quite broad and likely to ensure definite protection of municipal self-government by the Federal Supreme Court.

 

In general, however, it should be said that potential disputes between cantons and municipalities are usually settled politically rather than in the courts. The European Charter of Local Self-Government can be cited by municipalities in support of an appeal to the Federal Supreme Court. The rapporteurs note that in a ruling of 3 June 2016 (TF 14/38), the Federal Supreme Court made specific reference to the Charter (Article 4.6 and Article 5) to uphold an appeal against a proposal to amend the constitution of the Canton of Ticino to allow amalgamation of municipalities (Locarno and seventeen others). This appeal was made on the ground that the citizens of the municipalities concerned had not been consulted beforehand. The rapporteurs welcome this recognition of the Charter by a Swiss domestic court, since this once again shows a genuine acknowledgement of international law, which is a real problem in other member States.

 

In conclusion, the situation in Switzerland complies with Article 11 of the Charter.

Article 12.1
Undertakings - Non ratified

Each Party undertakes to consider itself bound by at least twenty paragraphs of Part I of the Charter, at least ten of which shall be selected from among the following paragraphs:

 

– Article 2,

– Article 3, paragraphs 1 and 2,

– Article 4, paragraphs 1, 2 and 4,

– Article 5,

– Article 7, paragraph 1,

– Article 8, paragraph 2,

– Article 9, paragraphs 1, 2 and 3,

– Article 10, paragraph 1,

– Article 11.

129. Switzerland signed the European Charter of Local Self-Government on 21 January 2004 without ratifying Articles 4.4, 6.2, 7.2, 8.2, 9.5 and 9.7. The rapporteurs nevertheless believe that compliance with the requirements arising out of these articles would not pose any major problems if the articles were ratified, since the current situation of local self-government in Switzerland is likely to meet these requirements fully, albeit with the (partial) exception of Article 7.2, which provides that local elected representatives shall be given appropriate financial compensation for exercise of their office. Such compensation is however important to guarantee for everyone the access to elective function and the real exercise of responsibilities that go with these posts by elected representatives and not mainly by administrative structures.
Article 12.2
Undertakings - Non ratified

Each Contracting State, when depositing its instrument of ratification, acceptance or approval, shall notify to the Secretary General of the Council of Europe of the paragraphs selected in accordance with the provisions of paragraph 1 of this article.

129. Switzerland signed the European Charter of Local Self-Government on 21 January 2004 without ratifying Articles 4.4, 6.2, 7.2, 8.2, 9.5 and 9.7. The rapporteurs nevertheless believe that compliance with the requirements arising out of these articles would not pose any major problems if the articles were ratified, since the current situation of local self-government in Switzerland is likely to meet these requirements fully, albeit with the (partial) exception of Article 7.2, which provides that local elected representatives shall be given appropriate financial compensation for exercise of their office. Such compensation is however important to guarantee for everyone the access to elective function and the real exercise of responsibilities that go with these posts by elected representatives and not mainly by administrative structures.
Article 12.3
Undertakings - Non ratified

Any Party may, at any later time, notify the Secretary General that it considers itself bound by any paragraphs of this Charter which it has not already accepted under the terms of paragraph 1 of this article. Such undertakings subsequently given shall be deemed to be an integral part of the ratification, acceptance or approval of the Party so notifying, and shall have the same effect as from the first day of the month following the expiration of a period of three months after the date of the receipt of the notification by the Secretary General.

129. Switzerland signed the European Charter of Local Self-Government on 21 January 2004 without ratifying Articles 4.4, 6.2, 7.2, 8.2, 9.5 and 9.7. The rapporteurs nevertheless believe that compliance with the requirements arising out of these articles would not pose any major problems if the articles were ratified, since the current situation of local self-government in Switzerland is likely to meet these requirements fully, albeit with the (partial) exception of Article 7.2, which provides that local elected representatives shall be given appropriate financial compensation for exercise of their office. Such compensation is however important to guarantee for everyone the access to elective function and the real exercise of responsibilities that go with these posts by elected representatives and not mainly by administrative structures.

ACCESSION

to the Council of Europe 6 May 1963

RATIFICATION

of the European Charter of Local Self-Government 17 February 2004

CONSTITUTION | NATIONAL LEGISLATION

The previous Constitution of the Swiss Confederation of 1874 included no specific provisions regarding municipalities. The revision of the Constitution in 1999 for the first time recognised municipal autonomy, in a new Article 50, thus giving more visibility and legitimacy to the municipalities as institutions.



23Ratified provision(s)
0Provision(s) with reservation(s)
10 Non ratified articles
23Compliant Provision(s)
0Partially Compliant Provision(s)
0Non-compliant Article