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Art. 1 BGFA — Subject Matter
#Doctrine
#1. Legislative History
N. 1 The BGFA is the result of decades of efforts to unify Swiss lawyers' law. As early as the beginning of the 20th century there were endeavours to create a federal lawyers' licence; however, this project failed at an early stage (BBl 1999 6013, 6019). Until the introduction of the BGFA, the intercantonal freedom of movement of lawyers was incompletely guaranteed by Art. 5 of the Transitional Provisions of the old Federal Constitution and by the Internal Market Act (BGBM, SR 943.02) (BBl 1999 6013, 6030). The Act entered into force on 1 June 2002 (AS 2002 863).
N. 2 The immediate occasion for the creation of the BGFA was provided by the sectoral agreements with the EC: in the Dispatch of 28 April 1999, the Federal Council emphasised that the implementation of the relevant EU Directives (Directive 77/249/EEC to facilitate the effective exercise by lawyers of freedom to provide services; Directive 89/48/EEC on the recognition of higher-education diplomas; Directive 98/5/EC to facilitate the practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained) necessitated a federal statute (BBl 1999 6013, 6030). The Agreement on the Free Movement of Persons (AFMP, SR 0.142.112.681) expressly refers in its Annex III to the Services Directive and the Establishment Directive (BGE 151 II 640 consid. 4.3).
N. 3 The Federal Council expressly rejected a complete replacement of cantonal lawyers' legislation by federal law. The BGFA was intended to unify only «certain points»: intercantonal freedom of movement (para. 1) and access for EU/EFTA lawyers (para. 2 of Art. 2 BGFA), while the remaining areas of lawyers' law were to remain with the cantons (BBl 1999 6013, 6031).
N. 4 In the parliamentary process, the demarcation between federal law and cantonal law was contested. In the Council of States debate (AB 1999 S 1158 ff.), the Committee rapporteur Saudan emphasised that the current Art. 3 para. 1 BGFA (referred to in the draft as Art. 2bis para. 1) was intended solely to unify the professional requirements for obtaining the lawyers' licence; there was no need for harmonisation as regards personal requirements. After several rounds of elimination of differences (National Council 1 September 1999; Council of States 20 December 1999; further differences until June 2000), the Act was adopted in the final vote of 23 June 2000 in both chambers. The Federal Supreme Court has on various occasions drawn on the parliamentary materials for the interpretation of the competence norms (Judgment 2C_897/2015 of 25 May 2016, consid. 6.2.3).
#2. Systematic Classification
N. 5 Art. 1 BGFA is the purpose provision of the Act. It stands at the beginning of the first section («Freedom of Movement and Register», Arts. 1–11) and gives the entire Act its teleological orientation. Its normative significance lies less in establishing specific rights or obligations than in setting the interpretive guideline for all other provisions. The Federal Supreme Court regularly cites Art. 1 BGFA as the starting point for statutory interpretation (Judgment 2C_897/2015 consid. 3.1; Judgment 2D_10/2011 consid. 2.1; BGE 151 II 640 consid. 4.1).
N. 6 Art. 1 BGFA is the purpose provision and identifies two equally-ranked regulatory objectives: (1) guaranteeing freedom of movement and (2) establishing the professional principles governing the practice of the legal profession. The Act is based on Art. 95 paras. 1 and 2 of the Federal Constitution (concurrent federal competence for private-sector activities and a single economic area). The federalist reservation in favour of the cantons follows from Art. 3 BGFA. ↔ Art. 3 BGFA (cantonal reservation); → Art. 2 BGFA (personal scope); → Arts. 12–13 BGFA (professional principles); → Arts. 21–34a BGFA (EU/EFTA provisions).
N. 7 The BGFA is a professional regulation statute with a federalist character. Natter (BSK BGFA, Art. 1 N. 12c) and Bohnet/Martenet (Droit de la profession d'avocat, 2009, para. 3) characterise it as a statute of public law that subjects the practice of the profession to a licence requirement. The practice of the legal profession within the meaning of Art. 1 BGFA is protected by economic freedom (Art. 27 of the Federal Constitution); state restrictions require a legal basis and must be in the public interest (Judgment 2C_505/2019 consid. 5.2).
#3. Normative Content
N. 8 Art. 1 BGFA consists of a single sentence with two normative elements: First, the Act guarantees the freedom of movement of lawyers — thereby obliging state authorities (cantons and Confederation) to take positive action. Second, it establishes the principles governing the practice of the legal profession in Switzerland — thereby containing a conclusive allocation of regulatory authority at federal level insofar as the professional rules within the meaning of Arts. 12–13 BGFA are concerned.
N. 9 The concept of «freedom of movement» in Art. 1 BGFA encompasses both intercantonal freedom of movement (Art. 4 BGFA: entitlement to represent parties throughout Switzerland on the basis of a single register entry) and international freedom of movement for EU/EFTA lawyers (Arts. 21–34a BGFA). The Federal Supreme Court has clarified that intercantonal freedom of movement is realised through the register entry (Arts. 5–6 BGFA), not through the lawyers' licence itself; the licence is merely a prerequisite for registration (Judgment 2C_897/2015 consid. 7.2.2).
N. 10 The «principles governing the practice of the legal profession» are materially regulated in Arts. 12–13 BGFA. Art. 12 BGFA contains the catalogue of professional rules (diligence and conscientiousness, independence, conflicts of interest, professional secrecy, professional duties towards the court). The Federal Supreme Court has repeatedly confirmed that the BGFA regulates these professional rules exhaustively; cantonal additions are excluded insofar as they pursue the same regulatory purpose (BGE 131 I 223 consid. 3.4; Judgment 2C_113/2024 consid. 8.3). This corresponds to the Dispatch's objective of uniform professional regulation at federal level (BBl 1999 6013, 6031).
N. 11 The personal scope of Art. 1 BGFA becomes apparent only through Art. 2 BGFA: the Act applies to holders of a lawyers' licence who represent parties before judicial authorities within the framework of the lawyers' monopoly. Lawyers who are exclusively engaged in advisory work and who refrain from registering do not fall within the scope of the BGFA (Judgment 2C_897/2015 consid. 5.2.1). The lawyers' monopoly itself is defined by cantonal law (→ Art. 3 para. 1 BGFA).
#4. Legal Consequences
N. 12 Art. 1 BGFA as such gives rise to no direct rights or obligations for individuals. The provision produces its legal effect in three ways: (a) as an interpretive directive for all other provisions of the BGFA; (b) as a criterion for demarcating federal competences from cantonal competences; (c) as a basis for directive-compliant interpretation in the area of EU/EFTA freedom of movement.
N. 13 The conclusive federal competence for the professional rules — implicitly embedded in the purpose provision and given concrete form by Art. 12 BGFA — has the consequence that cantonal legal provisions extending or modifying lawyers' professional duties violate Art. 49 para. 1 of the Federal Constitution (supremacy of federal law). A cantonal provision is, however, permissible if it pursues a different objective from the professional rules of the BGFA (Judgment 2C_113/2024 consid. 8.3–8.4, confirmed in BGE 151 I 194).
N. 14 The establishment of professional principles at federal level serves the objective of ensuring that lawyers practising in Switzerland need not concern themselves with cantonal particularities regarding professional principles. The Federal Supreme Court has expressly acknowledged this purpose and refers for this to BBl 1999 6039 (Judgment 2C_113/2024 consid. 8.4). → Art. 12 BGFA; → Art. 17 BGFA (disciplinary measures).
#5. Contested Issues
N. 15 Scope of cantonal competence for the lawyers' licence. A central controversy is whether the cantons, relying on Art. 3 para. 1 BGFA, may also make the acquisition of the lawyers' licence subject to personal requirements, or whether cantonal competence is limited to professional requirements.
N. 16 In favour of limiting the competence to professional requirements, Kettiger (Entzug des Anwaltspatents, Jusletter 28 September 2009, pp. 4 f.) argues: the legislative materials concerning the current Art. 3 para. 1 BGFA — a provision not yet contained in the Federal Council's draft — showed that the federal legislature envisaged cantonal competence only for professional requirements. Moreover, the concept of the lawyers' licence in the BGFA is linked only to professional requirements (Art. 7 BGFA), and not to personal requirements (Art. 8 BGFA).
N. 17 The prevailing academic opinion and the Federal Supreme Court adopt a broader interpretation: Bohnet/Martenet (Droit de la profession d'avocat, 2009, paras. 576 ff.), Natter (BSK BGFA, Art. 3 N. 3) and Fellmann (Anwaltsrecht, 2nd ed. 2017, para. 684 f.) affirm the cantonal authority to require personal requirements for the lawyers' licence as well. The Federal Supreme Court follows this view: since, when enacting the BGFA, the federal legislature primarily intended to regulate the requirements for register entry, and not to reform the cantonal lawyers' licence, the cantons — save for the minimum requirements under Art. 7 para. 1 BGFA — are free to impose both additional professional and personal requirements for the lawyers' licence (Judgment 2C_897/2015 consid. 6.2–6.3; BGE 134 II 329 consid. 5.1).
N. 18 Nature of the lawyers' licence. Closely connected to this is the question whether the lawyers' licence constitutes a police permit or a declaratory ruling (Feststellungsverfügung). The Federal Supreme Court — using the canton of Lucerne as an example, where the lawyers' licence is structured as a prerequisite for register entry rather than as an independent licence to practise — has characterised it as a declaratory ruling (Judgment 2C_897/2015 consid. 7.2.2). Fellmann (Anwaltsrecht, 2nd ed. 2017, para. 672) and the traditional academic opinion, however, regard the lawyers' licence as a police permit. Which characterisation is correct depends on the specific cantonal design.
N. 19 Limits of the conclusive federal regulation of professional rules. Academic opinion is also divided on where the boundary lies between lawyers' professional duties exhaustively regulated under federal law and permissible cantonal procedural rules with points of connection to legal practice. Bohnet/Martenet (Droit de la profession d'avocat, 2009, paras. 1103 ff.) and Fellmann (BSK BGFA, Art. 12 N. 3) emphasise the comprehensive claim of Art. 12 BGFA; the Federal Supreme Court, however, permits cantonal regulations where they pursue a different objective from the professional rules — for example, procedural economy in the context of electronic communication with authorities, without coming into conflict with Art. 1 BGFA (Judgment 2C_113/2024 consid. 8.4).
N. 20 Scope of the freedom-of-movement objective in the EU/EFTA context. For a long time there was uncertainty regarding the interpretation of Arts. 27–28 BGFA as to which requirements EU/EFTA lawyers must satisfy in order to be entered in the EU/EFTA lawyers' list. In earlier judgments, the Federal Supreme Court had required the establishment of a primary economic connection in Switzerland (Judgment 2C_694/2011 consid. 4.4). In BGE 151 II 640 consid. 5.7, the Federal Supreme Court refined this case law in light of the Establishment Directive (98/5/EC) and the CJEU case law (Judgment Torresi, C-58/13; Judgment Monachos Eirinaios, C-431/17): registration requires only proof of the legal qualification and the intention to practise permanently in Switzerland; a prior establishment of a primary economic connection in Switzerland may not be required.
#6. Practical Notes
N. 21 Art. 1 BGFA is primarily of indirect significance for day-to-day legal practice: it does not establish directly enforceable claims, but serves as an interpretive standard in the application of all other BGFA provisions. Authorities and courts are required to interpret the BGFA in light of its two objectives — freedom of movement and uniform professional principles.
N. 22 For lawyers practising in several cantons, the freedom of movement guaranteed by Art. 1 BGFA means in practice: a single register entry (→ Arts. 5–6 BGFA) suffices for the practice of the profession throughout Switzerland (→ Art. 4 BGFA). Additional cantonal authorisations or admission procedures are contrary to federal law insofar as the BGFA conclusively regulates freedom of movement (BGE 130 II 270 consid. 3.1).
N. 23 For EU/EFTA lawyers seeking to practise permanently in Switzerland, following BGE 151 II 640 consid. 5.7 the threshold for entry in the EU/EFTA lawyers' list (→ Arts. 27–28 BGFA) is low: all that is required is proof of the legal qualification (certificate of registration from the home State) and a credibly demonstrated intention to operate a law office permanently in Switzerland. A prior transfer of the primary economic focus to Switzerland may not be demanded. Cantonal authorities imposing stricter requirements violate Art. 27 para. 1 in conjunction with Art. 28 para. 2 BGFA.
N. 24 For cantons and cantonal supervisory authorities, Art. 1 BGFA in conjunction with Art. 49 para. 1 of the Federal Constitution entails the following: cantonal professional rules for lawyers practising within the scope of Art. 2 para. 1 BGFA are only consistent with federal law if they pursue a different regulatory objective from the professional rules of the BGFA. Cantonal lawyers' statutes may, on the other hand, provide for more extensive requirements for the acquisition of the lawyers' licence (both professional and personal), provided they are compatible with Art. 7 para. 1 BGFA (→ Art. 3 para. 1 BGFA).
N. 25 The question of whether conduct falls under Art. 12 BGFA and is thus subject to a nationwide standard, or whether it may be regulated by cantonal procedural rules, is to be assessed by reference to the purpose of the respective provision: professional principles within the meaning of Art. 12 BGFA serve to protect interests under police law (good faith in commercial dealings, protection of the public); cantonal procedural rules, by contrast, may serve the interests of procedural economy and the digitalisation of the justice system without coming into conflict with Art. 1 BGFA (Judgment 2C_113/2024 consid. 8.4; Judgment 2C_505/2019 consid. 5.2.2).
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