Literature
Beyeler Martin/Diebold Nicolas, in: Martenet Vincent/Dubey Jacques (Hrsg.), Commentaire Romand, Constitution fédérale, 2. Aufl., Basel 2021 (zit. CR Cst.); Bütler Michael, Erschliessung und Ausbau von Skigebieten aus rechtlicher Sicht, URP/DEP 4/2010, S. 411 ff. (zit. Erschliessung); derselbe, Zur Haftung von Werkeigentümern und Tierhaltern bei Unfällen auf Wanderwegen, Sicherheit & Recht 2/2009, S. 106 ff. (zit. Wanderwege); Dannegger Karl, Die Rechtsfragen der Bergsteiger und der Skifahrer, Zürich 1938; Haag Stephan, in: Martenet Vincent/Dubey Jacques (Hrsg.), Commentaire Romand, Constitution fédérale, 2. Aufl., Basel 2021 (zit. CR Cst.); Elsener Fabio/Wälchli Dominic, Pisten-Skifahren, in: Schneuwly Anne Mirjam/Müller Rahel (Hrsg.), Bergsportkommentar; Felber Franziska/Figini Nico, Gleitschirmfliegen, in: Schneuwly Anne Mirjam/Müller Rahel (Hrsg.), Bergsportkommentar; Gfeller Katja, Wassersport auf öffentlichen Gewässern der Schweiz, in: Schneuwly Anne Mirjam (Hrsg.), Wassersportkommentar; Greiner Andrea, Errichten und Ändern von Skisportanlagen, Diss. Basel 2003; Häfelin Ulrich/Müller Georg/Uhlmann Felix, Allgemeines Verwaltungsrecht, 8. Aufl., Zürich 2020; Hoffmann Kristin/Griffel Alain, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.), Basler Kommentar, Bundesverfassung, Basel 2015 (zit. BSK BV); Karlen Peter, Schweizerisches Verwaltungsrecht, Gesamtdarstellung unter Einbezug des europäischen Kontextes, Zürich/Genf/Basel 2018; Koch Patrick, Skitouren und Variantenfahren (Teil I), in: Schneuwly Anne Mirjam/Müller Rahel (Hrsg.), Bergsportkommentar; Lardelli Flavio/Vetter Meinrad, in: Geiser Thomas/Fountoulakis Christiana (Hrsg.), Basler Kommentar, Zivilgesetzbuch I, 7. Aufl., Basel 2022; Müller Rahel, Bergsportrecht: Einführung und Grundlagen, in: Schneuwly Anne Mirjam/Müller Rahel (Hrsg.), Bergsportkommentar; Pfammatter Aron, Private Rechte an kulturunfähigem Land, Unter besonderer Berücksichtigung der Rechtslage im Kanton Wallis, Diss. Bern 2009; Rey Heinz/Strebel Lorenz, in: Geiser Thomas/Wolf Stephan (Hrsg.), Basler Kommentar, Zivilgesetzbuch II, 7. Aufl., Basel 2023; Rüegger Vanessa, Der Zugang zu Wasser als Verteilungsfrage, Das Verhältnis zwischen dem Menschenrecht auf Wasser und den Herrschafts- und Nutzungsrechten an Wasservorkommen, Diss. Freiburg 2013; Seiler Hansjörg, Die Benützung des Waldes für Orientierungslauf, Münsingen 1984; Stiffler Hans-Kaspar, Schweizerisches Schneesportrecht, 3. Aufl., Bern 2002 (zit. Schneesportrecht); derselbe, Schweizerisches Skirecht, 2. Aufl., Derendingen 1991 (zit. Skirecht); Toller-Schwarz Marianne, Die Inanspruchnahme von Grundstücken für die Ausübung des Skisports, Diss. Zürich 1982; Tschannen Pierre/Müller Markus/Kern Markus, Allgemeines Verwaltungsrecht, 5. Aufl., Bern 2022; Vuille Miro, Wandern, in: Schneuwly Anne Mirjam/Müller Rahel (Hrsg.), Bergsportkommentar.
Materials
Bundesamt für Umwelt, Wald und Landschaft BUWAL (heute: Bundesamt für Umwelt BAFU), Juristische Aspekte von Freizeit und Erholung im Wald, 2005 (zit. BUWAL); Stellungnahme des Bundesrates vom 27. November 2019 zur Interpellation Kiener Nellen vom 27. September 2019 «Wäre nicht ein schweizweites Verbot von Basejumping und Wingsuit-Sprüngen angemessen?», Curia Vista-Nr. 19.4350 (zit. Interpellation Kiener Nellen); Interpellation Darbellay vom 12. Dezember 2014 «Den freien Zugang zu den Bergen sicherstellen», Curia Vista-Nr. 14.4245 (zit. Interpellation Darbellay); Bericht des Bundesrats vom 18. Februar 2015 über die Politik des Bundes für die ländlichen Räume und Berggebiete, Bericht in Erfüllung der Motion 11.3927 Maissen vom 29. September 2011 (zit. Bericht BR Berggebiete).
I. Conceptual Approach
In order to practice mountain sports, people involved in mountain sports must be able to spend time in the mountains and move freely in the mountains. This commentary answers the question of whether these prerequisites for practicing mountain sports are met in Switzerland, ie whether “access to the mountains” is guaranteed. The starting point of this article is therefore the concepts of the mountain and access.
A conclusive legal definition of the term “mountain” is not necessary for the purposes of this commentary, since mountain sports are not necessarily practiced “in the mountains” or “on the mountain”. Rather, it also includes climbing tours outside the actual mountains or mountain bike tours in lower-lying forests (cf. Müller, para. 2). However, it is at least inherent in mountain sports that they take place in mountainous areas. An approach to the concept of the mountain via the extensive (spatial) definition of the mountain area therefore seems appropriate for the mountain sports commentary. While the Federal Constitution of the Swiss Confederation of April 18, 1999 (BV) does not mention the mountains as such, Art. 50 Para. 3 B.Vbut stipulates that the Confederation takes the special situation of the mountain areas into account (cf. also Art. 85 Para. 3 B.V). For the definition of the mountain area, practice regularly falls back on the definition of the term in the federal investment aid legislation that expired at the end of 2007. This definition of the mountain area is based on the economic potential of an area and, in addition to the actual Alps, also includes the Jura arc and the pre-Alpine areas in the mountain area (cf.Report BR mountain areas, p. 22). The term “mountain” for the present commentary is also to be understood in this sense.
The concept of access, on the other hand, does not require any conceptual approximation, but is directly related to the applicable law from the perspective of which the issue of accessibility to the mountains is viewed. Access to property is covered by civil law as a right of access (cf. Art. 699 ZGB). On the other hand, access to the mountains based on public law can be considered from the point of view of the common use of public land and from the perspective of special legal regulations (cf. e.g. Art. 14 Para. 1of the Federal Act of October 4, 1991 on the Forest [Forest Act, WaG;SR921.0]; Article 6 paragraph 1 letter cthe federal law of 4 October 1985 on footpaths and hiking trails [FWG;SR704]). Both the civil law and the public law considerations are equally important, since the person involved in mountain sports is usually not clear whether they are on privately owned property or are walking on public property. In the following, the access regulations and the principles enshrined therein must be discussed (see paragraph 4 ff. below), before the subject of restricting access is discussed (see paragraph 18 ff. below). Finally, access to the Swiss National Park is considered a special case (see paragraph 26 below).
II. Principle of mountain accessibility
The civil law and public law regulation of access to the mountains are each considered separately below. However, this should not hide the fact that the different regulations can come into play at the same time (e.g. private ownership of a public thing [cf. BGE127 I 164E.5b/bb]; for the dualistic theory applicable in Switzerland, see margin no. 12).
A. Right of access according to Art. 699 Para. 1 ZGB
The civil law regulation of access to the mountains relevant to mountaineering can be found in Art. 699 Para. 1 ZGB(cf. also Vuille , margin no. 10). According to this provision, everyone is permitted to enter the forest and pasture and to acquire wild berries, mushrooms and the like to the extent customary in the area, unless the competent authority issues specific, specific bans in the interests of the crops. According to the settled case law of the Federal Supreme Court, this provision is a so-called double norm - ie "a legal proposition that contains provisions under public law and private law at the same time" (BGE96 I 97E.2f; see also UBI141 III 195E. 2.3). As a private law restriction of the right of defense under Art. 641 (2). ZGBOn the one hand, the norm regulates the relationships with the people who want to enter and cross the property. On the other hand, due to their public-law content, the authorities are authorized to monitor free access or accessibility ex officio (cf. BGE141 III 195E.2.3;109 Ia 76E. 3b). This is intended to take account of the public interest in “giving the population the space they need to relax” (BGE106 Ia 84E.3a; cf. BSK ZGB II- Rey/Strebel , Art. 699 N 6; see also UBI141 III 195E. 2.3).
1. Country incapable of culture
For the practice of mountain sports, it is of great importance that the land that is incapable of culture, which is often found in the (high) alpine region, should not be privately owned. This presumption is enshrined in Art. 664 (2). ZGB. According to this provision, there is no private property in the public waters and in the land not suitable for cultivation, such as rocks and screes, firns and glaciers, and the springs arising from them, subject to other proof. It is presumed that there is an ownerless thing and the person engaged in mountain sports may enter the country without having to rely on Art. 699 Para. 1 ZGB(cf. BSK ZGB II- Rey/Strebel , Art. 699 N 17; Toller-Schwarz , p. 29 and p. 38; cf. also Bütler, hiking trails, p. 116; Dannegger , p. 16).
However, even then the person does not move in a legal vacuum. Pursuant to art. 664 para. 1 ZGBunclaimed and public things are under the sovereignty of the state in whose territory they are located. They are in common use and may only be used by anyone in the intended and publicly acceptable scope (cf. Rüegger , p. 13; cf. also Häfelin/Müller/Uhlmann , margin no. 2253 ff.; for common use see margin no. 15 f. below .). In other words, land that is incapable of culture is presumably ownerless, but never ownerless (cf. BSK ZGB II- Rey/Strebel , Art. 664N 4 f.). In addition, the cantons declare the country incapable of culture based on Art. 664 para. 3 ZGBregularly belongs to the canton or the communes (cf. e.g. Art. 163 para. 3 of the introductory law of the canton of Valais of March 24, 1998 to the Swiss Civil Code [SGS 211.1], according to which regions that cannot be cultivated, such as rocks, screes, snowfields and glaciers , lakes, all watercourses from the point where they originate fall under the public ownership of the municipalities; Article 118 of the Introductory Act of the Canton of Graubünden of June 12, 1994 to the Swiss Civil Code [BR210,100], according to which the unclaimed land that has no other owner belongs to the political community). With a view to the land that is incapable of cultivation, such as glaciers, rocks, heaps of rubble or scree, the mountains are therefore unrestrictedly accessible from a civil law point of view.
2. Cultivable country
In contrast, land that can be used for agriculture or forestry according to plan is considered to be cultivated land (cf. BSK ZGB II- Rey/Strebel , Art. 664 N 37 et seq.). In the mountains, for example, the regular grazing of sheep justifies planned use (cf. BGE89 II 287E 6). In addition to the "actual" cultivated land such as (cultivated) fields, cultivated land includes, in particular, forest and pasture land within the meaning of Art. 699 Para. 1 ZGB. While the concept of pasture is based on the primary use of the property by allowing animals such as sheep or cows to graze, it seems coherent to use the definition in the Forest Act for the concept of forest (cf. BGE141 III 195E.2.5; BSK ZGB II- Rey/Strebel , Art. 699 N 7 ff.). Accordingly, a forest is any area that is stocked with forest trees or forest bushes and that can fulfill the forest functions - namely the protective, welfare and utility function (cf. Art. 2 Para. 1 WaGin conjunction with Article 1 Paragraph 1 Letter c WaG; see also Article 77 (1). B.V). For example, isolated groups of trees or shrubs, hedges, avenues or gardens and parks are not considered to be forests (cf. Art. 2 Para. 3 WaG).
In the case of "actual" cultivated land, the right of defense of Art. 641 para. 2 ZGBin principle not through the right of access within the meaning of Art. 699 para. 1 ZGBrestricted. However, Art. 699 para. 1 ZGBfrom a factual point of view, in the sense of an exception, also applied analogously to freshly mowed meadows, harvested fields and other soils that are frozen or snow-covered (cf. BGE141 III 195E.2.6; BSK ZGB II- Rey/Strebel , Art. 699N16; Toller-Schwarz , p. 30 and p. 39). The scope of art. 699 para. 1 ZGBFrom a spatial point of view, ends at the vegetation line, unless the land is already no longer usable for agriculture or forestry due to the topographical conditions - i.e. uncultivable. Due to the natural variation in the course of this boundary, the upper boundaries of the alpine properties in particular are "not simply at the vegetation line" ( Dannegger , p. 180), but "usually a little higher" (BGE89 II 287E 6).
The right of access according to Art. 699 Para. 1 ZGBincludes "all types of entry" and the subsequent temporary, brief stay on the forest or pasture (BSK ZGB II- Rey/Strebel , Art. 699 N 13; cf. also BUWAL, p. 17; Vuille , para. 10) . Access can be gained on foot, on horseback or by bicycle (e.g. mountain bike) as well as on skis or a sled (cf. Dannegger , p. 14; Toller-Schwarz , p. 38 f.; cf. also BGE106 Ia 84E. 3c). During Art. 699 para. 1 ZGBgrants the person engaged in mountaineering a right of access, the person who owns the property has an obligation to tolerate. The latter may not protect the forest and pasture property by enclosures (e.g. fences) in order to prevent access (regarding the restriction of the right of access in detail see below para. 19). However, Art. 699 para. 1 allows ZGBentering only to the extent customary for the location: If a forest or pasture has always been fenced in as per local usage, the fence does not infringe the right of access (cf. BGE114 Ib 238E. 4a and E. 4c). Furthermore, it is assumed in any case that entering does not cause any significant damage to the property, otherwise access does not have to be tolerated. As a result, driving a vehicle onto it is not considered trespassing within the meaning of Article 699(1). ZGB(cf. BSK ZGB II- Rey/Strebel , Art. 699 N 13 f.). In addition, the intensive use of a property for the purpose of practicing mountain sports such as downhill skiing or cross-country skiing on cross-country trails and the access of a large number of people involved in sports without consent is not permitted (cf. Toller-Schwarz, p. 37 f. ) .
With reference to the forest and pasture land, it should therefore be noted that people involved in mountain sports have extensive access rights to the privately owned land. In terms of civil law, the right of access "limits where it is not exercised without causing damage and is therefore no longer compatible with the interests of the landowner, as well as in local usage and in prohibitions that are precisely defined in terms of space and time to protect crops such as tree and plant nurseries" ( BGE109 Ia 76E.3b; for the restriction of the right of access in detail see the following para. 19). A restriction by public law provisions is also permissible, but this will also only be discussed later (see paragraph 20 et seq. below). In the case of "actual" cultivated land on which there is neither forest nor pasture (e.g. fields), an analogous reference to the right of access according to Art. 699 para. 1 ZGBconceivable by the people involved in mountain sports if access is not associated with impairment or damage to the property concerned. This requirement should at least be met by deep snow skiing or snowshoeing on cultivated land covered in deep snow (cf. Toller-Schwarz , p. 39 f.).
B. Use of a public good
While from the point of view of civil law, access to the mountains is limited in a few norms – in particular in Art. 699 ZGB- is regulated, the regulation of access cannot be fathomed from a public law perspective on the basis of individual provisions. Rather, what is relevant is public property law, which is governed by cantonal law and is therefore largely inconsistent (cf. Art. 664 para. 3 ZGB; cf. Karlen , p. 356, according to which public property law "is very fragmented"). Both the federal government and the cantons follow the system of modified private property with regard to public property. Accordingly, the civil law provisions are to be applied unless a different public law regulation applies to a specific question (cf. Häfelin/Müller/Uhlmann , margin nos. 2245 f.; Karlen, p. 355 f.; Pfammatter, p. 43 ; Tschannen /Müller/Kern , paragraph 1328). According to this dualistic theory applicable in Switzerland, “depending on the legal question, partly public law and partly private law applies” ( Tschannen/Müller/Kern, para. 1328), while according to the monistic theory applicable in France, for example, the public property system applicable to public property completely supersedes private property law (cf. Karlen , p. 355; cf. also Häfelin/Müller/Uhlmann , margin no. 2245). Accordingly, public property rule in Switzerland does not “replace the private system of property law, but merely superimposes it” ( Karlen , p. 356). In the following it is to be clarified to what extent the mountains represent a public property and how the mountains can be used as a public property by people engaged in mountaineering.
1. Mountains as a public matter
(Civil) ownership does not indicate whether a thing is public. A piece of land that is privately owned can also represent a public thing, which is why in this case ownership and ownership do not match (cf. BGE127 I 164E.5b/bb; Verdict6B_116/2011dated July 18, 2011 at 3.3; Pfammatter, p. 43; Tschannen/Müller/Kern , margin no. 1355). The answers to the questions as to what purpose a thing is dedicated to and whether the state can dispose of it to fulfill its tasks are decisive for the assignment to public things (cf. Häfelin/Müller/Uhlmann, margin no. 2200; Karlen , p . 356 f.; Tschannen/Müller/Kern , margin no. 1354; see margin no. 15 below). In particular, the forest and pasture land within the meaning of Art. 699 ZGBhas a recreational function in favor of the public (see para. 5 if above), whereby the state can, among other things, dispose of the forest land within the framework of forest legislation (e.g. ban on clearing according to Art. 5 Para. 1 WaG). Accordingly, privately owned forest property is also regularly a public matter (cf. Häfelin/Müller/Uhlmann , margin no. 2227; Tschannen/Müller/Kern , margin no. 1349).
Against this background, a person engaged in mountain sports can (simplified) assume from a public law perspective that the land suitable for culture (forest and pasture) is a public thing, while land in the (high) mountains that is not capable of culture is presumably an ownerless thing (see para. 7 above). Basically, the parts that colloquially make up “the mountains”—the forests, pastures, glaciers, rocks, and the like—are therefore unowned or public things. These are under the sovereignty of the state in whose territory they are located (cf. Art. 664 para. 1 ZGB). The sovereignty is understood as the legal competence, which also includes the legislative competence (cf. judgment2C_118/2020dated August 3, 2020 E. 4.1). The cantonal legislature regulates the use of ownerless and public property in cantonal law (cf. Art. 664 para. 3 ZGB; see also UBI145 II 32E. 2), insofar as a cantonal regulation does not conflict with the primacy of federal law (cf. Art. 49 para. 1 B.V). In particular, the cantons can determine which items are to be regarded as ownerless or public, which legal positions exist or can be established in them and which community they are subject to (cf. judgment2C_118/2020dated August 3, 2020 E. 4.1; see also judgement1C_463/2020dated March 3, 2022 E. 4.2). Accordingly, access to the mountains in terms of the use of public property is regulated under public law in a large number of decrees at federal, cantonal and municipal level.
2. Common use as a form of use
From the point of view of public law, "entering the mountains" basically represents the use of a public thing. The person practicing mountain sports can use these things if they are in the common use. The common use of public things is - subject to the natural condition such as lakes or rivers - justified by a corresponding dedication and power of disposal (cf. BGE94 I 569E.2a; see also UBI149 III 49E.3.2.1; Gfeller , Rz. 47). The dedication with which a thing is declared public and opened to the general public for use (cf. BGE138 I 274E. 2.3.2), takes place in different ways. It can derive from the law (cf. Art. 14 para. 1 WaG; Article 699 paragraph 1 ZGB), from a (general) decree or from a legal spatial planning measure (e.g. winter sports zone or ski sports zone) (cf. Häfelin/Müller/Uhlmann , margin no. 2229; Karlen , p. 357; Tschannen/Müller/Kern , margin no. 1334; for the winter sports zone, see also the judgment1C_640/2015dated September 20, 2016; on the ski sport zone see also Greiner , p. 25 ff.). A tacit dedication is also considered permissible, especially if an item (e.g. property with a hiking trail) "has been in public use for a long time" (BGE94 I 569E. 2a). In order for the state to be able to make such a dedication, it must be able to dispose of the thing. The state acquires the power of disposal through the acquisition of real or obligatory rights or through official channels through public-law restrictions on ownership or expropriation (cf. Häfelin/Müller/Uhlmann , margin no. 2230; Karlen , p. 356 f.; on the distinction from public-law Restrictions on ownership and formal expropriation see Greiner , p. 200 ff.). A power of disposal by operation of law can also be considered, as is the case in Art. 664 para. 1and paragraph 3ZGBis the case for ownerless things (e.g. culturally incapable land).
As long as people engaged in mountain sports use the public property as intended and in accordance with the common good, public use is free – namely without the need for a permit and free of charge (so-called simple public use; cf. judgment1C_463/2020dated March 3, 2022 E. 4.3; Tschannen/Müller/Kern , margin no. 1380 ff.; on the (construction) permits for ski slopes, see also Bütler , Erschluss, p. 420 ff.; Greiner, p. 54 ff.). In principle, the individual practice of mountain sports, such as hiking or touring skiing, can be considered as intended and socially acceptable, as is the case, for example, with swimming in public waters. Likewise, the practice of base jumping or paragliding as well as heli-skiing is still considered to be in accordance with the regulations and generally acceptable, so that in Switzerland there is no obligation to obtain a permit under public property law (cf.Interpellation Kiener Nellen; on the obligations under aviation law and insurance law, see Felber/Figini , margin no. 32 et seq. and para. 41 f.; on the requirements for heliskiing [such as the mountain landing sites] see Koch , para. 40ff.).
C. Special Legal Access Regulations
In addition to the civil and public law principles just explained, other federal laws contain special legal regulations that are relevant to access to the mountains. This includes, for example, the requirement of Art. 14 Para. 1 WaG, according to which the cantons must ensure that the forest is accessible to the general public. This norm ensures that the forest can fulfill its protective, useful and welfare functions (cf. also Art. 77 Para. 1 B.V), and is the public law counterpart to the civil law regulation in Art. 699 para. 1 ZGB(cf. SAEFL, p. 17; BSK BV- Hoffmann/Griffel , Art. 77 N 17). Furthermore, the Confederation lays down the principles for foot, hiking and cycle path networks (cf. Art. 88 Para. 1 B.V). Based on this competence, it obliges the cantons in Article 6 paragraph 1 letters a–c FWG, to ensure that footpaths and hiking trails are laid out, maintained and marked, that these paths can be walked freely and as safely as possible, and that public access is legally secured. The cantons must also record existing and planned footpath and hiking trail networks in plans (cf. Art. 4 Para. 1 lit. a FWG). If a hiking trail is included in these plans, the cantons, in accordance with Article 6 Paragraph 1 Letter c FWGto ensure that it is and remains publicly accessible (cf. CR Cst.- Beyeler/Diebold , Art. 88 N 45; cf. also Vuille , para. 5).
III. Limiting access to the mountains
Based on what has been said, it is clear that the principle of largely unrestricted access to the mountains applies in Switzerland. The exceptions to this principle are discussed below. First of all, the restriction of civil law access rights and then the public law restrictions on access to the mountains must be considered.
A. Civil law restriction of the right of access according to Art. 699 Para. 1 ZGB
The right of access of the person practicing mountaineering according to Art. 699 Para. 1 ZGBcan be restricted by means of civil law measures. However, such a restriction requires in any case a particularly protected interest of the person concerned who owns the forest or pasture land, for example because a young forest or a tree nursery is to be protected (cf. BSK ZGB II-Rey/Strebel, Art. 699 N 23). For protection, private action is conceivable, on the one hand, by enclosing the forest or pasture land, and on the other hand, an official ban on access, especially if enclosing an enclosure is not an option. The cantonal legislature regulates the responsibility for issuing access bans: Due to the “double character of Art. 699 ZGB» Cantonal law may stipulate that a cantonal administrative authority orders the ban on entry or that the locally competent civil court imposes a judicial ban within the meaning of Art. 258the Swiss Code of Civil Procedure of December 19, 2008 (ZPO;SR262) pronounces (BGE106 Ia 84E.3a; see also UBI141 III 195E 2). An example of an (inadmissible) access ban by an executive authority, which is important for mountaineering, dates back to 1936, when the government council of the canton of Bern, following various accidents on the north face of the Eiger, restricted their inspection by restricting the right of access under Art. 699 Paragraph 1 ZGBforbidden. The reason for the inadmissibility of the official access ban lies in the fact that the north face of the Eiger is to be regarded as culturally incapable land, so that access is not based on Art. 699 ZGBmust call. Conversely, an official restriction of the right of access within the meaning of Art. 699 Para. 1 ZGBnot possible with a view to the culture-incapable country, since there is a lack of cultures from the outset lacking the required special interest worthy of protection (cf. Dannegger , p. 16 f.). In addition to the civil-law measures, the civil-law right of access is also restricted by public-law access bans (see paragraph 20 et seq. below). The public-law restriction of the civil-law right of access is particularly important in constellations in which the landowners do not defend themselves against access that they should not actually tolerate due to lack of knowledge or interest (cf. Seiler, p . 87 ).
B. Public law restrictions on access to the mountains
While the civil law restrictions on the right of access of Art. 699 para. 1 ZGBrefer to the protection of real estate and “can only affect vegetation planted by people” ( Seiler , p. 81), the public law restrictions aim, for example, at the protection of wild plants or wild animals as well as at regulating the use of public property.
1. Cantonal access bans in general
Based on their original legislative competence, the cantons can issue public-law access bans. However, such bans - like all state action - must be in the public interest and proportionate (cf. Art. 5 Para. 2 B.V). Due to the priority of federal law (cf. Art. 49 para. 1 B.V) the cantonal access bans may also override the civil access right of Art. 699 ZGB"not deprive of its substance" (BGE122 I 70E.5a and E.5b; see BGE109 Ia 76E. 3b with reference to BGE58 I 173and UBI43 I 282). Such access bans under cantonal law come into question, in particular for the protection of nature or for other police reasons. In addition to the substance of Art. 699 ZGB(recreational function), which the cantons must maintain, the access bans must not conflict with federal public law, since the expansive power of cantonal law only applies to federal civil law and not to federal public law (cf. Seiler , p 89-99; see also Article 6 ZGB; BSK ZGB I- Lardelli/Vetter , Art. 6 N 10 ff.). The aforementioned example of the ban on climbing the north face of the Eiger is – in contrast to the ban on access under civil law – conceivable in the form of a ban on access under public law in the canton. However, a general ban on access should in any case comply with the principle of proportionality of Art. 5 para. 2 B.Vare in conflict (see also Dannegger , p. 17). It would also be disproportionate, for example, to prohibit hang gliders or paragliders from taking off or landing in mountain or alpine regions for an unlimited time and location (cf. BGE122 I 70E. 5).
2. Restrictive provisions of public federal law
Access to the mountains and their limitations are regulated in detail by cantonal law. Because the cantons are responsible for the implementation of spatial planning (cf. Art. 75 para. 1 B.V; CR Cst.- Haag , Art. 75 N 2) and in principle also for the guarantee of nature conservation (cf. 78 para. 1B.V; CR Cst.- Haag, Art . 78 N 20 f.; but cf. Art. 78 paras. 2-5 B.V). In doing so, however, they have to take into account the spatial planning principles of federal law and the federal legal requirements for environmental and water protection, nature and homeland protection and forest conservation (cf. also Koch , para. 30; Stiffler , Skirecht , N 1471 ff.). As a result, there is a cantonal legal network of locally - and sometimes temporally - varying protection zones.
For example, Art. 14 (2) lit WaGthat the cantons have to restrict access to certain forest areas where this is necessary for the preservation of the forest or other public interests, such as the protection of plants and wild animals. For this purpose, the designation of forest reserves, wild animal rest zones or nature protection areas in the forest can be considered (cf. SAEFL, p. 18; cf. also Art. 21 Para. 3 lit. a-c of the Forest Act of the Canton of Bern of 5 May 1997 [BSG921.11], according to which the protection of the forest can be accomplished through the designation of wildlife sanctuaries, the designation of forest reserves and nature reserves, and the erection of signals, fences and other barriers). A similar requirement under federal law can be found in Art. 7 Para. 4of the federal law of 20 June 1986 on hunting and the protection of wild mammals and birds (hunting law, JSG;SR922.0). According to this provision, the cantons must ensure adequate protection of wild mammals and birds from disturbance, for which purpose they regularly create wild animal rest zones (cf. eg Art. 27 of the Hunting Act of the Canton of Graubünden of June 4, 1989 [BR740,000], according to which the game is to be protected from being disturbed and the municipalities can, under certain circumstances, restrict the right of access to the game sanctuary in terms of location and time). The cantonal forest protection zones and wild animal rest zones are of particular importance, since they regularly restrict access to the mountains, but, as will be shown, not significantly in scope (cf. Koch , para. 31 f. and para. 33 ff .; Stiffler , Snow Sports Law, N 527; Stiffler, Ski Law, N 1560).
In its statement of March 6, 2015, the Federal CouncilInterpellation Darbellayof December 12, 2014 states that around 10 percent of «the Swiss Alps and foothills can be used to a limited extent in the winter months (national park core zone, federal hunting ban areas, legally designated cantonal wild [animal] quiet zones). In addition, around 600 ski touring and snowshoe routes have been set aside in this area with priority for fauna. Restrictions for summer tourism uses such as climbing or mountain biking only apply in the national park, in the mostly small nature reserves and a small part of the wild animal rest zones »(Interpellation Darbellay; on the Swiss National Park, see margin no. 26).
3. Restriction of common use by a usage regulation
At this point it should be recalled that the land used for mountaineering, regardless of whether it is also privately owned, should in principle represent a public thing in common use (see paragraph 13 et seq. above .). The common use of a public thing can be restricted - in addition to the above-mentioned bans on access - by a usage regulation. In contrast to civil law, the usage regulations do not aim to protect property or possessions, but "to regulate the use of a public thing" (judgment6B_116/2011dated July 18, 2001 at 3.3). A usage regulation requires a legal basis. The cantons regularly create this basis by designating a usage zone based on cantonal spatial planning and building law and issuing a corresponding zoning ordinance (see also para. 15 above). The winter sports zones in general and the downhill skiing zones or cross-country ski run zones in particular are important for mountain sports in winter. These usage zones and the associated zone regulations determine how the public property is to be used as intended (e.g. skiing or cross-country skiing). Such zones for skiing (downhill skiing zone) or cross-country skiing (cross-country skiing zone) create a corresponding right of access as soon as there is snow,Stiffler , Snow Sports Law, N 534 ff.; Stiffler, Skirecht, N 1449 ff.; for hiking on ski slopes, see also Elsener/Wälchli, Rz. 104ff.). However, a restriction of public use can also be considered if there is a threat of natural hazards and the community has a guarantor position for the safe use of public property (cf. Bütler, Wanderwege, p. 112 and p. 115). Article 6(1)(b) also states that hiking trails can be closed, for example due to the risk of falling rocks FWG(cf. also Vuille , para. 77 ff.).
IV. Access regulations in the Swiss National Park
A special access regulation exists for the area of the Swiss National Park. According to Art. 7the Federal Law of December 19, 1980 on the Swiss National Park in the Canton of Graubünden (National Park Law;SR454), after hearing the National Park Commission, the canton of Graubünden issues the park regulations, which require the approval of the Federal Council. Based on this, the Grand Council of the Canton of Graubünden passed the ordinance of February 23, 1983 on the protection of the Swiss National Park (National Park Ordinance/GR; BR498,200; approved by decision of the Federal Council of June 9, 1983). The National Park may only be entered on the marked paths and routes in the area mentioned in Art. 2 Para. 1 lit. . Furthermore, in the national park it is forbidden, among other things, to make fires or to bivouack (cf. Art. 5 lit. a National Park Regulations/GR). Consequently, the National Park represents an exception to the principle that the mountains in Switzerland are freely accessible for mountaineering and that there are only isolated restrictions.