Alfred Kölz, Neuere schweizerische Verfassungsgeschichte – Ihre Grundlinien in Bund und Kantonen seit 1848, Bern 2004 (excerpt: chapter Entwicklung der Verwaltungsgerichtsbarkeit im Bund, pp. 851-861)
Alfred Kölz – Entwicklung der Verwaltungsgerichtsbarkeit im Bund
Background
The Federal Council is the supreme governing and executive authority of the Confederation. It manages and supervises the Federal Administration. In its function as a court of law, the Federal Supreme Court, on the federal level, deals principally with the Federal Council and the Federal Administration. This reflects historical developments in part. When the modern confederation was formed in 1848 it was considered sufficient that legal protections vis-à-vis the Federal Administration could be sought within the administration itself, up to the Federal Council as the ultimate instance. The possibility introduced in the Federal Constitution of 1874 of filing a constitutional complaint over cantonal administrative acts for alleged violations of certain rights filled the loophole to a certain extent. But such complaints were not extended to acts of the federal government and administration (see Part I A. 2.1). The section below outlines the path taken to arrive at the practice of adjudicating complaints against the federal administration by an independent authority outside that administration. Today, the Federal Administrative Court in St. Gallen has first-instance jurisdiction pursuant to the 1999 constitutional reform. The Federal Supreme Court is thus the second judicial instance above the Federal Administration. The Court also exercises supervision of the Federal Administrative Court.
In addition to its executive function, the Federal Council importantly is also responsible for enacting legislative ordinances to the extent authorized by law or the Constitution. The Federal Supreme Court’s constitutional power includes the review of legislative ordinances by the Government as restrictions only apply to legislative acts of Parliament. The Federal Supreme Court can thus review ordinances of the Federal Council on a preliminary basis to ascertain their legality and constitutionality. In the case of dependent ordinances based on statutory delegation, the Court reviews whether the Federal Council respects the limits of the powers granted to it by law. To the extent the statutory delegation grants the Federal Council very broad regulatory discretion at the ordinance level, such discretion is binding upon the Court and it must not replace and substitute it by its own discretion. Review is limited to assess whether the ordinance obviously reached beyond the powers delegated to the Federal Council by Parliament or is unlawful or unconstitutional for other reasons (e.g. BGE 129 II 249, 128 II 34, 123 II 472). Finally, it should be noted that the Federal Government is responsible to enforce the rulings of the Federal Supreme Court. Also, we recall that, and unlike in other countries, the Federal Council is not charged with appointing federal judges (Part I C. 1.1), nor with budgeting the financial resources of the federal court. This essentially is a matter pertaining to Parliament (Part I A. 2.3).
Summary
Scepticism regarding the judiciary stems from the French Revolution. It was widely felt in Switzerland, particularly regarding public law courts. This was the reason why judicial protection against the administration were not granted in the formative period of the modern confederation. The fact of all authorities being subject to direct popular election was felt to sufficiently guarantee the legality of their decisions. It must be noted however that in some cantons certain property disputes between private individuals and the state qualified as private law cases on the basis of the fiscal theory adopted from Germany. It fell within the jurisdiction of the civil courts. However, as federal administrative law grew, resulting in the Federal Council being overloaded with complaints, support began to be heard for the hearing of appeals outside the administration itself. At the Swiss Lawyers Conference of 1897, Gustav Vogt presented a paper on the creation of a federal administrative court based on the model of judicial administrative law review jurisdiction already realised and in place in southern Germany. The constitutional basis for an independent federal administrative rewiew was created in 1914 on such conceptual foundations. At the time, it was highly controversial as to whether the competence of the appeals court should be determined according to general powers or be enumerated instead. In various steps and drawing in part on legal structures in neighbouring countries, the Federal Court’s administrative jurisdiction was expanded to include all matters (relieving the Federal Council of its duties of safeguarding legal protection). In contrast to views held before, the Federal Supreme Court was entrusted with powers of administrative justice in light of the close connection between constitutional and administrative law. At the same time, a number of Federal Appeals Commissions were created as a first instance. The Federal Constitution of 1999 formed the basis for a single first-instance court, the Federal Administrative Court based in St. Gallen, integrating and formally replacing the various Appeals Commissions.