Q&A: judicial review in Switzerland

Judicial review

What mechanisms (eg, judicial review) are available to challenge administrative decision-making by public bodies?

Swiss constitutional and administrative jurisdiction combines different types of judicial review.

Courts can review individual decisions of the administrative authorities for compliance with applicable law. The standard of review may be the federal or relevant cantonal constitution (constitutional review) or federal or cantonal acts and ordinances (administrative review). Depending on the applicable standard of review, courts may even be permitted to check the adequacy of an administrative act in light of the circumstances of the case. If a court finds an individual decision to be unlawful or inadequate, it will annul such decision.

Furthermore, when challenging an individual administrative decision, the legislation on which the decision is based may also be examined for its compliance with higher-ranking legislation (so-called concrete review). If the provision turns out to be incompatible with higher-ranking law, it will not be applied by the courts, and the administrative decision based on this provision is therefore annulled.

What types of administrative decisions are subject to judicial review?

In terms of a general rule and subject to narrow exceptions, administrative decisions can be challenged in court. Judicial protection depends crucially on the definition and the concept of what is an administrative decision.

In the broadest sense, administrative decisions can be defined as unilateral decisions based on public law, taken by public authorities in individual cases, which determine rights and obligations of one or several individuals (article 5 Administrative Procedure Act). Cantonal laws do not necessarily adopt this definition, but the practical differences are marginal.

Administrative decisions typically represent the common form of administrative actions. However, authorities may also engage in actions that are not directed at impacting the rights and obligations of an individual. Such informal acts (Realakte) are not subject to direct challenge before a court. To increase the legal protection of individuals, a person affected by an informal act may request that an administrative decision be rendered thereon. The resulting administrative decision is then open to challenge before the courts (article 25a Administrative Procedure Act).

Are there any restrictions on judicial review of administrative decisions?

In accordance with the guarantee of access to justice (article 29a Constitution), the administrative courts, which act as first-stage appellate bodies, are obliged to examine both the facts of the case and the application of cantonal and federal law in a free and comprehensive manner. However, administrative authorities possess a margin of discretion, in particular where legal concepts lack precise definitions. This occurs when a legal provision outlines requirements or consequences in an open-ended, undefined manner, often requiring consideration of factors beyond the explicit legal framework. Such situations are common in administrative law (eg, where a provision refers to ‘sound reasons’, ‘the public interest’, ‘hardship cases’ or requires a balancing of interests involved). Furthermore, where the administrative decision involves specialised administrative or technical expertise (natural sciences, agriculture, banking, cultural promotion, decisions on financial contributions or decisions taken by expert commissions) or considerations of local circumstances that only the relevant administrative bodies possess, courts sometimes impose restraint on their review.

Decisions of a predominantly political nature made by the administration or the executive are largely excluded from the jurisdiction of the Federal Administrative Court at the federal level (article 32(1)(a) Federal Administrative Court Act). In specific domains, an appeal can be submitted to the Federal Council (government, article 72(a) Administrative Procedure Act), which takes the final decision. In these cases, the exercise of an administrative body’s discretion is entirely removed from the scope of judicial review. Such exceptions to the guarantee of access to justice due to the predominantly political nature of the decisions also exist at cantonal level.

Furthermore, decisions that concern certain subject matters are excluded from review by the Federal Administrative Court (article 32 Federal Administrative Court Act) and/or the Federal Supreme Court (article 83–84a Federal Supreme Court Act).

Finally, decisions issued by certain authorities are excluded from review. This is in principle valid, for example, for decisions by the Federal Council (government) and Federal Assembly (parliament) (article 189(4) Constitution; with limited exceptions article 33(a) and (b) Federal Administrative Court Act).

Who has standing to bring judicial review proceedings in your jurisdiction? In what circumstances, if any, may third parties intervene in judicial review proceedings?

In terms of a general rule, a right to appeal administrative decisions is accorded to anyone who:

• has participated or has been refused the opportunity to participate in proceedings before the authority that issued the decision;
• has been specifically affected by the contested administrative decisions; and
• has an interest that is worthy of protection in the revocation or amendment of the decision (article 48(1) Administrative Procedure Act; article 89(1) Federal Supreme Court Act).

Third parties (persons, organisations, or authorities other than the one that rendered the administrative decision) are entitled to appeal and participate in the proceedings provided that a Federal Act are granting a right to appeal to them specifically (article 48(2) Administrative Procedure Act; article 89(2)(d) Federal Supreme Court Act). These third parties do not have to be specifically affected by an administrative decision in order to have a right of appeal. Instead, they possess a distinct right of appeal aimed at upholding significant public interests (eg, environmental protection organisations, organisations concerned with nature or cultural heritage protection or employer’s organisations and professional associations).

To ensure the accurate and uniform application of federal administrative law, various federal authorities, apart from federal departments themselves, are due to their supervisory function empowered by specific federal legislation to appeal administrative decisions taken by cantonal authorities in application of federal laws or their implementing decrees (so-called public authority appeal; see article 48(2) Administrative Procedure Act; article 89(2)(a) or (d) Federal Supreme Court Act).

Local authorities such as communes or other bodies of public law (cantons or religious communities recognised under public law) can appeal administrative decisions affecting them directly, particularly those impacting financial assets or significant public interests of their community (article 48(1) Administrative Procedure Act; article 89(1) Federal Supreme Court Act). They also have the right to appeal to the Federal Supreme Court for violations of constitutional or cantonal guarantees, such as communal autonomy (article 50 Constitution) or issues related to the existence or territory of the canton (article 53 Constitution). Furthermore, special appeal rights may be granted by federal law in specific areas to them such as nature and cultural heritage conservation, citizenship, environmental protection, and taxation (see article 84(2) Administrative Procedure Act; article 89(2)(c) and (d) Federal Supreme Court Act).

Depending on the canton, rules on the appeals to cantonal courts may be substantially similar to the rules laid out above for the federal level but need to be examined in a specific case.

Is it possible to challenge legislation by way of judicial review mechanisms?

Different types of judicial review exist to challenge legislation. A so-called abstract judicial review takes place if there is no specific case of application (typically an administrative decision) that could be appealed. A court will examine the extent to which the provision in question is compatible with higher-ranking law. If the provision contradicts higher-ranking law, it is annulled by the courts.

Abstract review of federal law (Federal Acts and Ordinances) is excluded. By contrast, cantonal provisions can be comprehensively reviewed (article 82(b) Federal Supreme Court Act). When engaging in an abstract review of cantonal provisions, however, the Federal Supreme Court exercises restraint: it only repeals a cantonal or communal provision if such provision defies any interpretation compatible with higher-ranking law. Cantonal constitutional provisions are usually not reviewed due to the principle of separation of powers. This is because the Federal Assembly (Parliament) already examines new cantonal constitutional provision for their compatibility with federal law before they come into force (article 51(2) and article 172(2) Constitution).

In the context of an abstract review of cantonal provisions, the appeal is submitted directly to the Federal Supreme Court (centralised system), which acts as the sole instance unless the cantons equip their own courts with the authority to review any act or ordinance passed by its canton (article 87 Federal Supreme Court Act).

So-called concrete review occurs when a provision is applied (ie, when an individual administrative decision has been made on the basis of that provision). The provision can be contested in any court within a specific case (decentralised system). The courts conduct a preliminary examination of the provision on which the appealed decision is based, assessing its potential incompatibility with higher-ranking law. If the provision violates higher-ranking law, it is not applied in the specific case and the administrative decision is annulled.

Every legal provision, federal or cantonal, is subject to concrete review in specific cases. However, there is a key exception: Pursuant to article 190 Constitution, the Federal Supreme Court and other judicial authorities must apply Federal Acts and international law. This means that the courts must apply federal acts enacted by the Federal Assembly and approved by the Swiss people (explicitly or implicitly through an optional referendum), even if they lack a constitutional basis or conflict with the Constitution. As far as federal acts are concerned, Switzerland’s concept of judicial review still embodies a system of legislative supremacy. The significant restriction on constitutional control over Federal Acts finds partial relief in international law. Since article 190 Constitution covers both Federal Acts and international law, it does not delineate a hierarchy in cases of conflict. As a fundamental principle in the Swiss legal order, international law generally prevails over Federal Acts. This gives the courts the opportunity to review Federal Acts in accordance with international law such as the European Convention on Human Rights and disapply them in the case of a conflict.

On what grounds may a challenge to administrative decision-making, if any, be brought?

In the area of administrative law, the appeal bodies (primarily the Federal Administrative Court) usually have full and comprehensive jurisdiction to review administrative decisions. This means that, in principle, all deficiencies in the contested decision can be brought forward, which are typically fall into three categories: The main grounds for review are violations of federal law (Federal Constitution, Federal Acts or Ordinances, and international law, to the extent it is self-executing). This also includes any exceeding or abuse of discretionary power. In addition, an incorrect or incomplete determination of the legally relevant facts may serve as ground for an appeal. Finally, an appellant can challenge the adequacy of a decision in light of the circumstances of a case. However, a plea of inadequacy is inadmissible if a cantonal authority has ruled as the appellate authority in a case or if the plea is expressly precluded by a more specific law than the one governing general administrative procedural matters (article 49 Administrative Procedure Act). This is, for example, the case in public procurement or asylum cases (article 56(3) Federal Act on Public Procurement (PPA); article 106(1) Asylum Act).

The Federal Supreme Court may only review administrative decisions for their compliance with international law, the Constitution, federal legislation, cantonal constitutions, cantonal provisions on the political voting rights of citizens and on popular elections and referendums, intercantonal law and for evident misjudgement of facts. By contrast, Federal Supreme Court cannot review decisions for their adequacy in light of the circumstances of the case (see article 95–97 Federal Supreme Act).

Decisions by cantonal authorities can largely be challenged in front of cantonal courts on the same grounds as before the Federal Administrative Court, whereby not only a violation of prevailing international and federal law but also of the canton's own law can be brought forward.

What remedies are available if a court upholds a challenge to administrative decision-making?

In the case of an appeal against an administrative decision, the courts either issue a new decision on the matter itself (reformatory judgment) or annul the challenged decision, remanding the case to the decision taking authority or lower court, respectively, for reconsideration (cassatory judgment).

The annulment relates specifically to the administrative decision but does not extend to the provision underlying that decision. The court may review the provision’s conformity with higher-ranking law as part of a so-called concrete review. In the event of a violation, the provision is not applied.

Is damages one of the remedies available in a successful challenge to administrative decision-making? If so, please summarise the principles, including the measure of damages and any limitations to this remedy.

The primary objective of legal protection under public law is to achieve restitution, aiming at reinstating the lawful situation by correcting unlawful official actions such as administrative decisions. The appellate body can annul the unlawful decision and either modify it directly by rendering a new decision or refer the case back to the lower instance for reconsideration. If restitution proves unfeasible or impermissible, the appeal seeks a declaration of the administrative decision’s unlawfulness (declaration of incompatibility).

Financial compensation aims to offset the impact of an unlawful action, addressing its negative effects when restitution is not possible because the unlawful action itself or its adverse consequences cannot be reversed. It is often used to respond to informal acts as these acts cannot be revered due to their nature (eg, harm to life and physical well-being) or, in the context of administrative decisions, as a supplementary measure when an administrative decision or its consequences cannot be reversed due to prevailing public or private interests. For example, financial compensation may be awarded if a competitor was wrongly not considered for an award in a public tender where the contract has already been executed (compensation for the costs incurred).

What are the basic procedural requirements to bring a challenge to administrative decision-making?

The appeal must be brought by a person or entity entitled to such an appeal (and therefore has standing) against a valid object of appeal in a subject matter not excluded from appeal (in particular decisions subject to review). The appeal must be served within the limitation period and in the form prescribed by the applicable procedural act.

Which courts hear challenges to administrative decision-making in your jurisdiction? Are challenges considered by a separate system of administrative courts or specialist tribunals?

The jurisdiction of the courts for appeals against administrative decisions rooted in federal administrative law varies depending on whether a cantonal or federal administrative authority is applying federal administrative law. If a cantonal authority applies federal administrative law in a specific area, the first recourse is an appeal to the cantonal administrative court. If a further appeal is admissible, the case can then be brought before the Federal Supreme Court. If federal administrative law is applied by a federal administrative authority or agency, the appeal is filed with the Federal Administrative Court. It acts as a lower court to the Federal Supreme Court. In certain areas where an appeal to the Federal Supreme Court is excluded, however, the Federal Administrative Court acts as the sole and final judiciary body.

In the field of cantonal administrative law, the duty to adjudicate administrative law complaints falls upon the cantonal authorities and courts. At the cantonal level, challenges are frequently not initially brought before a cantonal administrative court but are usually subject to an internal administrative review procedure. In such cases, the first level of appeal is the office or department higher in authority than the entity that issued the administrative decision. Only thereafter can the decision of the internal administrative authority be challenged before a cantonal court. The ultimate recourse involves an appeal to the Federal Supreme Court.

How long does it typically take for a judicial review to be completed?

Providing a reliable time frame for a proceeding proves challenging, as the duration largely depends on the individual case. This includes factors such as the type and nature of the proceedings, the scope and complexity of the matter, the behaviour of the parties involved, the importance and urgency of the matter for the parties concerned and the specific decision-making processes associated with the case. Furthermore, the number of cases the court is handling concurrently may have an influence.

According to statistics for 2022, it took an average of 185 days for Federal Supreme Court to conclude proceedings initiated with a public law remedy. In the same period, the Federal Administrative Court needed on average 283 days to conclude a case.

What time limit applies to judicial review claims brought in your jurisdiction?

With regard to abstract judicial review, a direct appeal to the Federal Supreme Court (if permissible) against a cantonal provision must be filed within 30 days from the publication the cantonal act. An act is deemed to have been published with the official determination by the executive that no referendum has been taken and that it can therefore enter into force (validation decree). By contrast, if the canton allows for an appeal to a cantonal court in a first instance, the appeal must be filed within the applicable deadline set by the canton, but in no case later than 30 days from the formal publication of the provision (meaning the publication of the provision itself, not of the validation decree) if a further appeal to the Federal Supreme Court shall remain possible. After the aforementioned periods have expired, the cantonal provision can no longer undergo abstract review, but remains subject to examination in the context of a specific application at hand (concrete review).

An appeal against an individual administrative decision, whether challenging the decision itself for being contrary to applicable law or contesting the provision on which the decision is grounded for being inconsistent with higher-ranking law (concrete review), is typically required to be submitted within 30 days of receiving notification of the administrative decision. In some areas, the limitation period might be shorter. For instances, appeals in the area of public procurement by federal procurement entities must be submitted within 20 days of the decision being notified (article 56 PPA).