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.