Cities in the Context of Swiss Federalism

Abstract

Communes embody the diversity of a federal state. Amongst them, cities play an important role in many regards. Various questions arise when looking into cities and city-related issues in Swiss federalism from a legal perspective. Their status is primarily determined by the cantons and thus varies from canton to canton. The Federal legislator partially deals with cities, too. Overall, this leaves us with a fragmented picture of the city as a distinct legal entity. The following article provides a brief overview of elements that position the city in the context of Swiss federalism, starting with its definition, looking at approaches taken in the cantons and at the federal level and linking cities with reform proposals.

 

 Introduction

Urbanization reached Switzerland a long time ago. Despite its depiction as a rural and mountainous country, cities have always played and still play an important role in Switzerland (Kübler 2022). Statistics indicate today’s factual importance of urban settlements: More than three-quarters of the population live in cities and agglomerations, and almost 80% of the jobs are located there. The city landscape includes a few bigger cities – only six cities have over a hundred thousand inhabitants; Zurich in front with a population of around 440’000 – but overall Switzerland is still dominated by smaller cities and agglomerations (cf. Statistics of Swiss Cities 2022, table 1.1).

Cities have regained more attraction in various fields, for instance, to demonstrate the divide between rural and urban voters, being empowered as political actors, or when considering the potential of technologies in urban areas (“smart cities”). In recent years, legal scholarship started to devote more attention to the topic of cities.

 

What is a City?

While it is demonstrated frequently how important cities are as powerhouses from an economic, political, or social and cultural perspective, their definition is less clear. The criteria typically involve elements like size (e.g. population, spatial relevance), historical roots (e.g. medieval cities) or factors such as a dense architecture. The variability and to some extent vagueness of the notion are apparent in the law as well: Even the quality of the city as a separate legal notion is debatable (Tanquerel 2007, p. 87). Neither has a common understanding of what constitutes a city been established nor can a legal definition be found in the different sources of Swiss federalism (Biaggini 2017, note 10 on article 50).

A contextualized understanding of a city seems necessary. A city can stand for a bundle of specific (urban) interests when the special position of cities shall be taken account of (see art. 50 para. 3 Federal Constitution and below). Pragmatism seems to reign in this context where the definition is left open (Kölz & Kuster 2002, p. 140). However, it can be argued that the city must be defined in the law or its criteria set out clearly for its application when the qualification as a city is linked to certain rights, or when cities are categorised in a position distinct from other communes. In practice, legislators designate certain communes with special rights. A “city commune” can also be defined more abstractly, by introducing quantitative criteria, for example regarding the organization of the legislative branch of a commune in a parliamentarian form (in some cantons, communes over a set population need to establish a parliament; a further element that is sometimes seen as indicative for a typical city structure).

 

Cities under Cantonal Law

Cities are, like other communes, placed – and as part of the cantonal level – at the bottom and most local level of the federal state structure. As a consequence, this can lead to disparities between a city’s factual importance and its legal status. In the current legal framework, it is the cantons who shape their status, encompassing their existence and continuity, their autonomy, their tasks and competencies, their rights and obligations. Thus, a great variety of provisions composes the legal status of the city.

General provisions on communes apply to all types of communes in most cantons, thus cities and towns are treated the same, regardless of their differences in size or resources. However, cantons act within the boundaries set by constitutional law when they add asymmetric elements. These could reach as far as the introduction of a specific type of city-commune as cantons benefit from a rather large organizational autonomy. None of the cantons has so far foreseen such a comprehensive city-focused approach. Even in the (few) more urbanized cantons, cities are usually subject to the general provisions governing communes.

Various exceptions can be found to these “symmetries”. The cantonal law of Zurich illustrates different asymmetric elements to better reflect the special position of a city. For example, by calling upon the authorities to take account in their activities of the possible consequences for the communes, the cities, and the agglomerations (art. 85 para. 2 Constitution Zurich). As the sole canton, Zurich grants the right of referendum against certain cantonal acts and decisions to citizens, communes and also to the two cities of Zurich and Winterthur (“city referendum”; art. 33 Constitution Zurich). Furthermore, there are exemptions for cities from general provisions and special provisions apply (typically, in the system of equalisation of financial resources and burdens) or cities are granted extended competencies in certain fields, such as spatial planning, schooling, or security.

 

Cities under Federal Constitutional Law

Cities are mentioned in several provisions of the Federal Constitution. Notably, article 50 is often referred to as the “city article” (for example by Kölz & Kuster 2002). According to this provision, the Confederation has to take account in its activities of the possible consequences for the communes (para. 2) and, in doing so, the special position of cities (para. 3). Even though the provisions recognize the special position of cities, its impact on their legal position seems limited. First, the final wording of the provision shows a political compromise because cities are not the only entity mentioned but are listed next to urban areas (“agglomerations” in a more literal translation of the German version) and mountainous regions. The question arises, who should be the hero of the story (see on this also Hirschl 2020, 90)? Second, the mentioned provisions are addressing the Federal authorities and are mainly understood as the basis for a broad “agglomeration”-policy of the Confederation. There was no intention to create a new competency to introduce Federal “city law”.

An important organizational step of implementation was the establishment of a trilateral conference that brought together representatives from the Confederation, cantons, communes, and cities. It became an important platform for the exchange of best practices, development of new ideas and coordination of policies. The conference is based on a multilateral agreement and is set up as a forum to exchange views and coordinate policies; informality in such formats of cooperation often prevails over a clear legal structure, and they lack the power to issue legally binding decisions (critical Griffel 2008, p. 163).

Federal law can shape the role of cities when the field in question is within a federal competency and the cantonal autonomy of organization is respected (Biaggini 2017, note 3, preliminary remarks on art. 50). For instance, federal provisions address city communes and communes in the outskirts when regulating the distribution of funds to mitigate the effects of road traffic in agglomerations (see art. 86 of the Federal Constitution and the relevant acts of implementation regarding the use of charges for tasks and costs in connection with road transport infrastructure). Such programmes are open to project-based initiatives taken at the local level and should mitigate side-effects of traffic in agglomerations.

Other principles, such as the principle of subsidiarity (namely art. 5a and 43a of the Federal Constitution), may provide further arguments to strengthen the cities. Subsidiarity, as it is understood by most scholars, entails a twofold function: Regarding the fulfilment of state tasks, authorities of the higher state levels (the Confederation and the cantons) should act within their competencies by taking account of the interests of the lower state level. Subsidiarity should as well be considered in the allocation of competencies, i.e. that the higher state levels only undertake tasks that the cantons are unable to perform or which require uniform regulation by the Confederation (Waldmann 2015, pp. 3–5). The principle also applies to the cantons, whereby most cantonal constitutions enshrine elements of subsidiarity: They should not fulfil their tasks without considering possible impacts on cities and other communes. Competencies should only be allocated to the cantons if, for example, the communes and cities cannot act or uniform rules are required.

As much as the idea of subsidiarity seemingly favours a stronger position of cities with typically larger resources and usually facing challenges at first and at a large scale, the normative implications are very limited and are mainly of a programmatic nature. The principle itself is not enforceable and even if the idea is considered partly normative, it would need further clarification (Waldmann 2015, p. 5; see furthermore Blank 2010).

 

Cities and Reforms

Positioning cities within a federal setting also touches upon reforms. It could go as far as to re-think federalism in general, since one can argue that the growing importance of cities offers alternative approaches by moving away from state-based thinking. This becomes visible when cities implement international agreements more ambitiously than set out and likely more effective than their implementation through states (e.g. in environmental matters: Aust 2019). There is a growing number of measures taken by Swiss cities to act against climate change at the local level: From the ratification of non-binding Charters to legally entrenched goals to lower CO₂ emissions. Federal and cantonal law could strengthen the role of cities, for example, by extending their competencies.

There are various proposals striving for better inclusion of cities in the decision-making process at the federal and the cantonal level. For instance, several repeated calls for a formalized representation of cities in the Council of States, the chamber representing the cantons at the federal level or an idea that several cities together could call for a referendum against federal acts (by modifying art. 141 Federal Constitution).

Such far-reaching initiatives have so far not gained the necessary political support. One of the main reasons against this has been the perception of the current system as working well (enough) and – without necessarily questioning the importance of cities – reforms could undermine the well-established relations and mechanisms between the Confederation and the cantons.

 

Conclusion

The status of a city in the Swiss federal system differs from canton to canton, each dealing with its respective local realities. Only more urbanized cantons put a special focus on “their” cities and make legal distinctions between urban communes and others.

Cities are also not systematically entrenched in federal law. This is due to a limited competency of the Confederation to legislate on matters directly related to communes. Existing provisions change neither the legal form of the city as a commune nor can it affect their position within the federal structure.

As much as cities seem to gain more attention in politics, comprehensive reforms are still futile. When considering the Federal policy on agglomeration the focus seems to be put on stronger coordination and cooperation between actors from all state levels, including representatives from the cities. Looking at cities in Switzerland reveals the manifold facets of Swiss federalism. One may find a variety of promising approaches on how to entrench cities in the law and even become an essential part of reform discussions of the federal system itself. The question, of how and if at all, legislators are going to reflect the importance of cities in a more explicit way, remains open. Legal research should keep an even closer look at these key actors of the future.

Bergamin, F. 2022. ‘Cities in the Context of Swiss Federalism‘, 50 Shades of Federalism. Available at: http://50shadesoffederalism.com/case-studies/cities-in-the-context-of-swiss-federalism/

 

References

Aust, Helmut. 2019. The shifting role of cities in the global climate change regime: From Paris to Pittsburgh and back? Review of European, Comparative & International Environmental Law (28): 57–66. DOI: 10.1111/reel.12272.

Biaggini, Giovanni. 2017. BV Kommentar. Bundesverfassung der Schweizerischen Eidgenossenschaft. 2nd ed. Zurich: Orell Füssli.

Blank, Yishai. 2010. Federalism, Subsidiarity, and the Role of Local Governments in an Age of Global Multilevel Governance. Fordham Urban Law Journal (37): 509–558.

Federal Statistical Office and Union of Swiss Cities. 2022. Statistics of Swiss Cities 2022 [Statistik der Schweizer Städte]. Neuchâtel.

Griffel, Alain. 2008. Städte und Agglomerationen. In Ruch, Alexander & Griffel, Alain (eds.). Raumplanungsrecht in der Krise – Ursachen, Auswege, Perspektiven, pp. 135–169. Zurich: Schulthess.

Kölz, Alfred & Kuster, Susanne. 2002. Der Städteartikel der neuen Bundesverfassung, Zeitschrift für Schweizerisches Recht (121): 137–169.

Kübler, Daniel. 2022. Agglomerationen. In Papadopoulos, Yannis et al. (eds.). Handbuch der Schweizer Politik, pp. 343–370. 7th edn. Zurich: NZZ Libro.

Tanquerel, Thierry. 2007. Les villes dans le droit constitutionnel et administratif suisse. In Tanquerel, Thierry and Bellanger, François (eds.). L’avenir juridique des communes, pp. 79–104. Geneva: Schulthess.

Waldmann, Bernhard. 2015. Subsidiarität und fiskalische Äquivalenz als Garanten für einen substanziellen Föderalismus? Newsletter des Instituts für Föderalismus (4/2015). Available at: https://unifr.ch/federalism/de/dienstleistungen/newsletter/

 

 

Further Reading

Barber, Benjamin. 2013. If Mayors Ruled the World. Dysfunctional Nations, Rising Cities. New Haven: Yale University Press.

Hirsch Ballin, Ernst et al. 2021. European Yearbook of Constitutional Law 2020 – The City in Constitutional Law. The Hague: T.M.C. Asser Press.

Hirschl, Ran. 2020. City, State. Constitutionalism and the Megacity. New York: Oxford University Press.

Various City Reports. International Law Association Study Group on “The Role of Cities in International Law”. Available at: https://www.asser.nl/global-city/ila-city-reports/