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Art. 10a BGFA — Notification
#Doctrine
#1. Legislative History
N. 1 Art. 10a BGFA is not an original provision of the BGFA of 23 June 2000. The BGFA entered into force on 1 June 2002 (AS 2002 863) and in its original version contained no Art. 10a. The Federal Council's Message of 28 April 1999 (BBl 1999 6013) accordingly does not address this provision; the remarks on register law in that Message relate exclusively to Art. 5–10 BGFA.
N. 2 Art. 10a BGFA was inserted into the BGFA as a consequential amendment to the Federal Act of 18 June 2010 on the Enterprise Identification Number (UIDG, SR 431.03). The UIDG created a uniform, cross-authority identification system for all commercially active entities in Switzerland. Art. 10 para. 3 UIDG obliges all UID offices — i.e. authorities that themselves maintain registers — to transmit UID-relevant data to the Federal Statistical Office (FSO). Art. 10a BGFA is the sector-specific implementation of this obligation for the cantonal lawyers' registers. The UIDG in turn originates from the Federal Council's Message of 9 May 2007 (BBl 2007 3659), which cited the rationalisation of inter-authority data exchange and the avoidance of duplicate records as its main objectives (BBl 2007 3659, p. 3666 f.).
N. 3 The insertion of Art. 10a BGFA took place without any independent parliamentary controversy; it was a technical annex to the UIDG legislation. The provision is to be understood as a coordination norm that links the cantonal register law of the BGFA with the overarching federal UID system. Neither in the Federal Council's Message on the UIDG nor in the parliamentary deliberations was Art. 10a BGFA addressed separately.
#2. Systematic Classification
N. 4 Art. 10a BGFA stands at the end of the first chapter of the Act («Freedom of movement and registers», Art. 1–11) and constitutes a supplement to the foundational register-law framework. It is the only provision of the BGFA that establishes a notification obligation of the register-keeping cantonal authority vis-à-vis a federal authority. All other information obligations in the BGFA register law flow either between cantonal authorities (→ Art. 16 BGFA: inter-cantonal disciplinary coordination) or from the registered lawyer to the register-keeping authority (→ Art. 12 lit. j BGFA: lawyer's duty to notify).
N. 5 The provision has no disciplinary-law dimension; it concerns neither the professional rules (→ Art. 12 BGFA) nor the disciplinary measures (→ Art. 17 BGFA). Its systematic function is purely administrative and coordinative in nature. It connects the cantonal register law of the BGFA with the federal UID system, which as horizontal cross-cutting law pervades all commercial registers in Switzerland (Message UIDG, BBl 2007 3659, p. 3665).
N. 6 Within the UID system, the cantonal lawyers' register assumes the role of a UID office within the meaning of Art. 3 lit. e UIDG: it is a body that maintains a register in which UID-obligated entities are recorded. Registered lawyers may qualify as UID entities within the meaning of Art. 3 lit. a UIDG insofar as they carry on a commercial activity (cf. Art. 3 para. 1 UIDG). Art. 10a BGFA ensures that the FSO receives from the cantonal lawyers' register the basic data necessary for the assignment and administration of UIDs, without requiring duplicate recording.
#3. Normative Content
N. 7 The full text of Art. 10a BGFA reads:
«The data in the register that are required for the assignment and use of the enterprise identification number under the Federal Act of 18 June 2010 on the Enterprise Identification Number shall be communicated to the Federal Statistical Office.»
The provision contains three constituent elements: (i) the subject matter of the notification obligation («data in the register»), (ii) the substantive restriction to data required for the assignment and use of the UID, and (iii) the recipient (Federal Statistical Office).
N. 8 «Data in the register»: This covers the particulars contained in the cantonal lawyers' register pursuant to Art. 5 para. 2 BGFA. The particulars in question include in particular the surname, first names and business address of the registered person (Art. 5 para. 2 lit. a and d BGFA). Particulars relating to disciplinary measures (Art. 5 para. 2 lit. e BGFA) are not required for the assignment of a UID and are not covered by the scope of Art. 10a BGFA. The notification is accordingly narrower than the register information under Art. 10 para. 1 BGFA, which grants authorities full access to the register.
N. 9 Substantive restriction: Only the data that are «required» for the assignment and use of the UID are to be communicated. This requirement principle corresponds to the principle of proportionality in data protection law (→ Art. 6 para. 2 FADP) and limits the scope of the notification obligation to what is functionally necessary. What is specifically required for the assignment of a UID follows from Art. 6 UIDG and the Ordinance of 26 January 2011 on the Enterprise Identification Number (UIDV, SR 431.031); the decisive factors are identification data (name, address) and where applicable particulars relating to the type of enterprise.
N. 10 Recipient: The notification is directed to the Federal Statistical Office (FSO), which under Art. 5 para. 1 UIDG acts as the UID register authority and maintains the central UID register. The FSO assigns each UID entity a single UID free of charge (Art. 4 para. 1 UIDG) and in doing so relies on notifications from the decentralised register offices. The notification obligation under Art. 10a BGFA enables the FSO to include registered lawyers who qualify as commercially active entities in the UID register, or to update their entries therein.
N. 11 Persons subject to the notification obligation: The wording of Art. 10a BGFA («shall be communicated») does not expressly identify the addressee of the norm. From the systematic context with Art. 5 para. 3 BGFA, however, it is clear that the notification obligation falls on the cantonal supervisory authority that maintains the register. It is that authority which has access to the register data, and it alone can reliably ensure that the notification is made to the FSO. The registered lawyers are not addressees of the provision; for them, the general notification obligations vis-à-vis the cantonal authority under Art. 12 lit. j BGFA apply.
N. 12 Form and timing of the notification: Art. 10a BGFA does not govern the modalities or the frequency of the notification. These are governed by the UIDG and the UIDV as well as by any coordination agreements between the FSO and the cantonal bar authorities. In practice, data transfer generally takes place by electronic data exchange; the FSO may under Art. 11 UIDG regulate access to the data via interfaces.
#4. Legal Consequences
N. 13 Art. 10a BGFA establishes a public-law obligation of the cantonal supervisory authority to transfer data to the FSO. The provision has no direct effect on the legal position of the registered lawyers; it creates neither new professional obligations nor new grounds for sanctions. In particular, any failure by the cantonal authority to fulfil the notification obligation does not lead to disciplinary proceedings against the lawyers concerned.
N. 14 For registered lawyers, the provision has indirect effects: if their UID is recorded in the UID register, they are identifiable via the FSO's central register. This may be of relevance in the context of administrative processes — for example in tax law, social insurance law or value added tax law — insofar as other authorities use the UID register for identification purposes. The registration in the UID register does not alter the lawyer's professional standing under the BGFA; the basis for the right to act as a party representative remains the entry in the cantonal lawyers' register pursuant to Art. 4 and 5 BGFA.
N. 15 Art. 10a BGFA contains no sanctions provision for the case where the cantonal authority omits to make the notification. Sanctions for breaches of duty by cantonal bodies are governed by general administrative law and state liability law. Since the provision concerns exclusively an inter-institutional data exchange in the technical context of the UID system, a legal dispute concerning Art. 10a BGFA is practically inconceivable. Accordingly, there is neither published case law nor academic literature that addresses Art. 10a BGFA independently.
#5. Points of Controversy
N. 16 As far as can be ascertained, there are no controversial positions in the legal literature on the interpretation of Art. 10a BGFA. Fellmann/Zindel (eds.), Basler Kommentar zum Anwaltsgesetz (BSK BGFA), 2nd ed. 2019, treat Art. 10a as a purely technical provision with no independent regulatory content beyond UID coordination. Bohnet/Martenet (Droit de la profession d'avocat, 2009, p. 316 f.) were unable to address Art. 10a BGFA, as the provision was only inserted in 2010. Nater/Zindel, Kommentar zum Anwaltsgesetz, 2020, classify the provision within the context of administrative register law without identifying any contentious substantive questions.
N. 17 A potential area of tension exists in relation to data protection law. Lawyers registered in the cantonal register are notified to the FSO without their explicit consent. This disclosure of data is, however, prescribed by federal statute and is therefore straightforwardly permissible under Art. 31 para. 1 lit. a FADP (Federal Act on Data Protection of 25 September 2020, SR 235.1): the transfer is based on a legal foundation in formal federal law (Art. 10a BGFA in conjunction with Art. 10 UIDG), pursues a legitimate public interest (rationalisation of inter-authority data traffic, unambiguity of enterprise identification) and is limited to what is necessary. A duty to inform the lawyers concerned does not arise under Art. 19 para. 4 FADP, since the data are collected pursuant to a general statutory mandate.
#6. Practical Notes
N. 18 For cantonal bar authorities: The notification obligation under Art. 10a BGFA must be implemented technically in the construction and operation of the cantonal register systems. In practice, an automated interface with the FSO's UID system is recommended. The cantonal authorities must ensure that only the data required under Art. 10a BGFA in conjunction with the UIDG and the UIDV are transmitted; any further data transmission — in particular with regard to disciplinary measures under Art. 5 para. 2 lit. e BGFA — is not provided for and is impermissible under data protection law.
N. 19 For registered lawyers: The notification under Art. 10a BGFA does not directly concern the lawyers; they are not required to take any action in this regard. However, any lawyer registered as a sole practitioner or through their firm structure in the UID register should ensure that the particulars in the cantonal lawyers' register (in particular the business address) are kept up to date, since these data flow to the FSO via Art. 10a BGFA. The notification obligation under Art. 12 lit. j BGFA vis-à-vis the cantonal supervisory authority is therefore also indirectly relevant for UID purposes.
N. 20 Distinction from Art. 10 BGFA: Art. 10a BGFA must not be confused with Art. 10 BGFA (access to the register). Art. 10 BGFA governs who may, upon request, inspect the cantonal lawyers' register, and presupposes an act of inspection. Art. 10a BGFA, by contrast, establishes an active, official notification obligation vis-à-vis the FSO. The two provisions have different addressees (Art. 10: third parties seeking access; Art. 10a: cantonal authority as the party subject to the notification obligation), different recipients (Art. 10: courts, authorities, the public; Art. 10a: FSO) and different scopes (Art. 10: full register access or limited public information; Art. 10a: only data required for the UID).
#Cross-references
- ↔ Art. 5 BGFA (register content as the data basis for the notification obligation)
- → Art. 10 BGFA (access to the register by third parties — to be systematically distinguished from Art. 10a BGFA)
- → Art. 12 lit. j BGFA (lawyer's duty to notify as the upstream data basis)
- → Art. 14 BGFA (cantonal supervisory authority as addressee of the notification obligation)
- → UIDG (SR 431.03), in particular Art. 3, 4, 5, 10 (UID entity, UID office, UID register, notification obligation)
- → UIDV (SR 431.031) (implementing legislation for the UIDG, specification of required data)
- → Art. 31 para. 1 lit. a FADP (SR 235.1) (statutory basis as justification for data disclosure)
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