Legal system - Switzerland

Legal basis

Constitution (BV)

The constitution (Bundesverfassung, BV), status 1st January 2008, contains the following articles, which are of particular importance for special education.

Equality before the law:

«No one may be discriminated against, in particular on grounds of origin, race, gender, age, language, social position, way of life, religious, ideological, or political convictions, or because of a physical, mental or psychological disability» (BV, Art. 8.2).
«The law shall provide for the elimination of inequalities that affect persons with disabilities» (BV, Art. 8.4). See below : Law on Equal Rights for persons with Disabilities (BehiG).

Right to Primary School Education:

«The right to an adequate and free primary school education is guaranteed» (BV, Art. 19).
Note: Article 8 and 19 belong to the  «Fundamental Rights» (Chapter 1 of the Constitution).

Social Objectives:

«The Confederation and the Cantons shall, as a complement to personal responsibility and private initiative, endeavour to ensure that children and young people as well as persons of employable age can obtain an education and undergo basic and advanced training in accordance with their abilities» (BV, Art. 41.1.f).
«The Confederation and Cantons shall endeavour to ensure that everyone is protected against the economic consequences of old-age, invalidity, illness, accident, unemployment, maternity, being orphaned and being widowed.» (BV, Art. 41.2).
«No direct right to state benefits may be established on the basis of these social objectives» (BV, Art. 41.4).
The decisive phrase in Art. 41.1.f is «in accordance with their abilities » which means that individual abilities are more important than other goals such as those of economy.

In Art. 41.2 it is important to understand the character of social insurance: the individual has the right to the necessary means of support in situations of social risk. In these kinds of situations, the individual has no obligation toward the state.

Article 41.4 is important in connection with the Federal Invalidity Insurance Law.

Intercantonal agreements:

«The Cantons may enter into agreements with each other and establish common organisations and institutions. In particular, they may jointly undertake tasks of regional importance together » (BV, Art. 48.1).
«The Confederation may participate in such organisations or institutions within the scope of its powers» (BV, Art. 48.2).
«Agreements between Cantons must not be contrary to the law, to the interests of the Confederation or to the rights of other Cantons. The Confederation must be notified of such agreements» (BV, Art. 48.3).
«The Cantons may by intercantonal agreement authorise intercantonal bodies to issue legislative provisions that implement an intercantonal agreement, provided the agreement. (BV, Art. 48.4).
a. has been approved under the same procedure that applies to other legislation;
b. determines the basic content of the provisions»
«The Cantons shall comply with intercantonal law» (BV, Art. 48.5).

School Education:

«The Cantons shall be responsible for the system of school education» (BV, Art. 62.1).
«They shall ensure the provision of an adequate primary school education that is available to all children. Primary school education shall be mandatory and be managed or supervised by the state. At state schools it shall be free of charge» (BV, Art. 62.2).
«The Cantons shall ensure that adequate special needs education is provided to all children and young people with disabilities up to the age of 20» (BV, Art. 62.3).
«Where harmonisation of school education is not achieved by means of co-ordination in the areas of school entry age and compulsory school attendance, the duration and objectives of levels of education, and the transition from one level to another, as well as the recognition of qualifications, the Confederation shall issue regulations to achieve such harmonisation» (BV, Art. 62.4).
«The Cantons shall participate in the drafting of federal legislation on school education that affects cantonal responsibilities, and special account shall be taken of their opinions» (BV, Art. 62.6).
Due to the fact that obligatory education (9 years) is a cantonal matter, the Swiss educational system is very diversified, which means that there are 26 different educational legislations. According to the constitution, the cantons are sovereign insofar as their sovereignty is not limited by the constitution (BV, Art. 3). The decentralised system has the advantage that the school structure can be adapted to cantonal, regional or local conditions. With HarmoS, a harmonisation of the education system in Switzerland is aimed at. Actually, the agreement concerning school co-ordination (29.10.1970) is still valid. The 9 years of obligatory education are also defined in this concordat.

Vocational education and training:

«The Confederation shall issue regulations on vocational education and training» (BV, Art. 63.1).
«It shall encourage the provision of a diverse and accessible range of courses in vocational training» (BV, Art. 63.2).
In contrast to obligatory education, post-obligatory education is regulated by federal legislation.
See below : Vocational Education Act  (BBG).

Social Security:

«The Confederation shall take measures to ensure adequate financial provision for the elderly, surviving spouses and children, and persons with disabilities. These shall be based on three pillars, namely the Federal Old-age, Survivors’ and Invalidity Insurance, the occupational pension scheme and private pension schemes» (BV, Art. 111.1).
«The Confederation shall encourage the rehabilitation of people eligible for invalidity benefits by providing cash and non-cash benefits. For this purpose, it may use resources from the Invalidity Insurance» (BV, Art. 112b.1).
«The Cantons shall encourage the rehabilitation of people eligible for invalidity benefits, in particular through contributions to the construction and running of institutions that provide accommodation and work» (BV, Art. 112b.2).
See below : Federal Invalidity Insurance Law
Source: The Constitution

Law on Equal Rights for persons with Disabilities (BehiG)

The Law on Equal Rights for persons with Disabilities (Bundesgesetz über die Beseitigung von Benachteiligungen behinderter Menschen, Behindertengleichstellungsgesetz, BehiG), effective as of 2004, materialises article 8.4 of the constitution.
«The cantons ensure that children and young people receive obligatory education, which is adapted to their special needs» (BehiG, Art. 20.1)
«The cantons promote the integration into mainstream school with appropriate measures, as far as this is possible and serves the well-being of the child or the young person with disabilities» (BehiG, Art. 20.2).
Source: BehiG

Federal Invalidity Insurance Law (IVG)

The Federal Invalidity Insurance Law (Invalidenversicherungsgesetz, IVG), 1959, arises from article 111 of the constitution.
Until the end of 2007, the Federal Invalidity Insurance Law constituted the federal aspect of special needs education by regulating the identification and co-financing of special needs education for children and young people with more severe disabilities. As a consequence, the national invalidity insurance influenced special needs education to a large extent, although education in general is a cantonal matter.
This law, however, has changed. At the beginning of 2008 the responsibility for funding special schools was transferred entirely to the cantons.
Sources (in German):
IVG, 1959
IVV, 1961

Vocational Education Act (BBG)

The Vocational Education Act (Bundesgesetz über die Berufsbildung, Berufsbildungsgesetz, BBG) took effect in 2004. It materialises the constitutional article 63, and is a general revision of an older law.
«This law promotes and develops the equalisation of the education chances in social and regional regard, equal rights of women and men as well as the removal of disadvantages of persons with handicaps» (BBG Art. 3c).
In contrast to obligatory education, post-obligatory education is substantially regulated on the national level. The new law creates a framework for a flexible organisation of educational forms and content. The most important change for people with special education needs – especially those with learning difficulties – is the new basic vocational training with federal certificate («Berufliche Grundbildung mit eidgenössischem Berufsattest»).
Also, federal law will regulate health and social professions, which until now have been under cantonal law.
Sources: BBG, 2004

Intercantonal agreements (intercantonal conventions)

HarmoS, intercantonal agreement on harmonisation of compulsory schooling

Intercantonal agreement of collaboration in the domain of Special Needs Education 

Phases of education

Early Childhood Education

The early childhood education of children presenting special education needs falls under cantonal legislation.

Compulsory Schooling

The schooling of children presenting special education needs falls under cantonal legislation. All cantons have a legal basis for special needs education.

Transition period

Post-obligatory education is regulated on the federal level. If young people with special education needs are recognised by the Invalidity Insurance, their post-obligatory education falls under the Federal Invalidity Insurance Law. If not, their post-obligatory education is regulated by the Federal Vocational Education Act.