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Art. 21 BGFA — General Principles (Freedom to Provide Services)
#Doctrine
#1. Legislative History
N. 1 Art. 21 BGFA implements Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (Services Directive) in Swiss law. The Act is based on the Agreement on the Free Movement of Persons (AFMP, SR 0.142.112.681) of 21 June 1999, Annex III of which expressly refers to the Services Directive and the Establishment Directive (Directive 98/5/EC). The Federal Council introduced the BGFA with the Dispatch of 28 April 1999 (BBl 1999 6013 ff.) with the express aim of ensuring the international freedom of movement of lawyers as required by the AFMP.
N. 2 Art. 21 BGFA governs the first of three stages of professional practice by EU/EFTA lawyers in Switzerland: the freedom to provide services (paras. 1 and 2). The further stages — permanent practice under the home-country professional title (→ Art. 27–29 BGFA) and registration in the cantonal register of lawyers (→ Art. 30–34 BGFA) — are subject to more demanding requirements. This graduated structure deliberately mirrors the distinction drawn in European law between the freedom to provide services and the freedom of establishment (cf. BBl 1999 6061 para. 234).
N. 3 The parliamentary deliberations proceeded in several phases: the National Council and the Council of States diverged across multiple rounds (1999–2000) before the Act was adopted in the final vote in both chambers on 23 June 2000. The basic rule set out in Art. 21 was not, however, the subject of any significant parliamentary controversy; the points of contention concerned primarily other provisions on disciplinary supervision and professional conduct rules. The Federal Supreme Court held in BGE 151 II 640 consid. 5.3 that the Federal Council's draft of Art. 27 and 28 BGFA — which constitute the counterparts to Art. 21 at the establishment stage — was adopted in the chambers «without discussion», indicating broad consensus on the fundamental architecture of the free-movement regime.
#2. Systematic Classification
N. 4 Art. 21 BGFA opens the fourth section of the Act («Lawyers from Member States of the EU or EFTA», Art. 21–34a) and, together with Art. 22–26 BGFA, constitutes the rules on the freedom to provide services. This section is structurally independent from the third section on the cantonal register of lawyers (Art. 5–11 BGFA): lawyers providing services are expressly not entered in the cantonal register of lawyers (Art. 21 para. 2 BGFA; → Art. 4 BGFA).
N. 5 The systematic position clarifies the binary structure of EU/EFTA free-movement law: Art. 21 BGFA protects the freedom to provide services (Art. 5 AFMP), while Art. 27 BGFA safeguards the freedom of establishment (Art. 4 in conjunction with Art. 12 ff. Annex I AFMP). The distinction between the two freedoms is of considerable practical importance, because only the freedom of establishment gives rise to a right of residence and the 90-day limit (→ N. 10) marks the transition between the two regimes. The Federal Supreme Court refined this dividing line in BGE 151 II 640 consid. 4.2.1 with reference to the relevant case law of the Court of Justice of the European Union.
N. 6 Art. 21 BGFA is in tension with the national lawyers' monopoly (↔ Art. 2 BGFA, ↔ Art. 68 para. 2 CPC, ↔ Art. 127 para. 5 CrimPC). Together with Art. 4 BGFA, it forms one of the federal-law foundations on which the lawyers' monopoly in procedural law rests: according to BGE 147 IV 379 consid. 1.2.2, both lawyers entered in a cantonal register of lawyers and EU/EFTA lawyers «in accordance with the requirements of Art. 21 ff. BGFA» are entitled to conduct a defence.
#3. Elements of the Provision / Normative Content
3.1 Personal Scope (Para. 1)
N. 7 Art. 21 para. 1 BGFA requires three conditions to be satisfied: (i) nationality of an EU or EFTA member state, (ii) authorisation to practise as a lawyer in the home state, and (iii) use of one of the professional titles listed in the Annex to the BGFA. The obligation to prove one's legal qualifications upon request by the judicial or supervisory authorities is separately governed by → Art. 22 BGFA. The Annex to the BGFA lists the recognised professional titles of EU and EFTA states; it must be updated whenever new member states accede. Nationality as a connecting factor follows the Services Directive (Art. 1 Directive 77/249/EEC; cf. Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 176).
N. 8 The freedom to provide services is — unlike domestic practice — also open to legal entities and law firms, provided that the individual lawyer acting on their behalf personally satisfies the personal requirements. Judgment 6B_68/2018 of 7 November 2018 consid. 1 confirmed that a Liechtenstein law firm not entered in the Swiss register of lawyers may represent its clients before the Federal Supreme Court on the basis of Art. 21 ff. BGFA, as long as the individual acting on behalf of the firm meets the requirements of Art. 21 para. 1 BGFA.
3.2 No Registration Requirement (Para. 2)
N. 9 Art. 21 para. 2 BGFA makes clear that lawyers providing services are not entered in the cantonal registers of lawyers. This distinguishes them from permanently practising EU/EFTA lawyers (→ Art. 27–28 BGFA) and from fully integrated EU/EFTA lawyers (→ Art. 30 BGFA). The Federal Council justified the waiver of a registration obligation on grounds of practicability: prior registration for merely temporary activity would involve disproportionate administrative burden for both the supervisory authorities and the service providers (BBl 1999 6063 para. 234.21; confirmed in Judgment 2A.536/2003 of 9 August 2004 consid. 4.2).
3.3 The 90-Day Limit
N. 10 Art. 21 itself contains no explicit maximum number of days, but the limit of 90 working days per calendar year follows directly from Art. 5 AFMP (cf. BGE 151 II 640 consid. 4.2.1; Judgment 2A.536/2003 consid. 3.2.1; Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 179). A lawyer who regularly practises in Switzerland for more than 90 days per year moves beyond the scope of the freedom to provide services and must be entered in the EU/EFTA lawyers' list pursuant to Art. 27–28 BGFA. The Federal Supreme Court clarified in BGE 151 II 640 consid. 5.7.2 that exceeding 90 days is indicative of permanent activity; it is not, however, the sole decisive criterion for the demarcation.
3.4 Professional Title
N. 11 EU/EFTA lawyers providing services in Switzerland use their home-country professional title in the official language of the home state, with an indication of the competent professional organisation or the court before which they are admitted (→ Art. 24 BGFA). This is a key element of the Services Directive (Art. 3 Directive 77/249/EEC) and serves the purpose of transparency vis-à-vis the public and the courts.
3.5 Proceedings Requiring Representation by a Lawyer
N. 12 In proceedings in which representation by a lawyer is mandatory, EU/EFTA lawyers providing services are required to act in conjunction with a lawyer entered in the cantonal register of lawyers (→ Art. 23 BGFA). The Federal Council based this rule on Art. 5 of Directive 77/249/EEC, which, as a permissive provision, allows for such a requirement, and on the judgment of the Court of Justice of the European Union of 25 February 1988, which limits the conjunction obligation to proceedings in which the procedural rules make legal representation compulsory (BBl 1999 6051 f. para. 234.23). Conjunction does not mean that the registered lawyer must hold a power of attorney or be present at hearings (BBl 1999 6052). In practice this obligation plays a minor role, as Swiss law recognises very few proceedings in which legal representation is genuinely mandatory; the Federal Council expressly noted this in the Dispatch (BBl 1999 6051 f.: «Under the current system in Switzerland there are hardly any such proceedings»; confirmed in Judgment 2A.536/2003 consid. 3.2.1).
#4. Legal Consequences
N. 13 A person who satisfies the requirements of Art. 21 para. 1 BGFA is entitled to represent parties before Swiss judicial authorities without any further authorisation procedure. The right of representation arises directly by operation of law. Once the lawyer providing services is active in Switzerland, Swiss professional law applies: «A lawyer admitted on the basis of the AFMP and the Lawyers Act is in principle subject to the same rules as Swiss lawyers when providing services» (Judgment 4A_83/2008 of 11 April 2008 consid. 2.2; likewise Judgment 5A_461/2012 of 1 February 2013 consid. 3.2).
N. 14 If registration is lacking where permanent activity is involved (i.e. where Art. 21 BGFA is relied upon despite the 90-day limit having been exceeded), the lawyers concerned are excluded from activities falling within the scope of the lawyers' monopoly. If a non-registered lawyer signs a pleading, this defect is in principle curable, but only if it is remedied within the period set for that purpose (Judgment 5A_461/2012 consid. 3.4 and 4.2; → Art. 68 para. 2 CPC).
N. 15 The right of representation under Art. 21 BGFA is one of the federal-law foundations of the lawyers' monopoly in criminal procedure (Art. 127 para. 5 CrimPC). According to BGE 147 IV 379 consid. 1.2.2, EU/EFTA lawyers «in accordance with the requirements of Art. 21 ff. BGFA» are also entitled to conduct a criminal defence. Unlike the civil procedure monopoly (Art. 68 para. 2 CPC), the criminal procedure monopoly applies not only to professional defence but also to non-professional defence (BGE 147 IV 379 consid. 1.2.3).
#5. Contested Issues
N. 16 Distinction between the freedom to provide services and the freedom of establishment. For a long time it was contested which criteria are decisive for distinguishing temporary service provision from permanent professional practice. In Judgment 2A.536/2003 consid. 4.1, the Federal Supreme Court had inferred from the «regulatory context» of the BGFA that entry in the EU/EFTA lawyers' list additionally required «permanent» activity in Switzerland. In Judgment 2C_694/2011 it clarified that permanent professional practice exists only if the lawyer has «the centre of gravity or the focal point of professional activities» in Switzerland. Bohnet/Martenet, Droit de la profession d'avocat, 2009, para. 841 and Chappuis/Châtelain, in: CR CO LAvoc, 2nd ed. 2022, N. 4 on Art. 28 BGFA, criticised this interpretation as excessively restrictive and incompatible with the wording of Art. 27 and 28 BGFA. In BGE 151 II 640 consid. 5.7, the Federal Supreme Court refined its case law having regard to the case law of the Court of Justice of the European Union on Directive 98/5/EC (judgments Torresi C-58/13 and Monachos Eirinaios C-431/17): prior establishment of an economic centre of gravity in Switzerland may not be required; what is decisive is the intention to practise permanently in Switzerland and the taking of corresponding steps to that end.
N. 17 Scope of the AFMP in procedural matters. The Federal Supreme Court clarified in Judgment 4A_83/2008 consid. 2.2 that the AFMP and Art. 21 BGFA exclusively govern admission to the legal profession in Switzerland and not the procedural rules to which the admitted lawyer is subject. EU/EFTA lawyers providing services are therefore subject to Swiss law with respect to time-limit calculation, the filing of pleadings, and all other procedural matters. In this context, Nater/Wipf, in: Thürer/Weber/Zäch (eds.), Bilaterale Verträge Schweiz–EG, 2002, pp. 258 f., argue that equal treatment of EU/EFTA lawyers with Swiss lawyers constitutes a fundamental structural principle of the free-movement regime.
N. 18 Law firms in the context of the freedom to provide services. Judgment 6B_68/2018 consid. 1 answered the question whether law firms (i.e. legal entities) may also appear on the basis of Art. 21 ff. BGFA. The Federal Supreme Court answered in the affirmative: the absence of registration of the firm in the cantonal register is immaterial, as long as the individual acting on its behalf satisfies the requirements of Art. 21 para. 1 BGFA and the activity is carried out «only on a case-by-case or temporary basis». Academic writing is divided on whether the procedural power of attorney must be granted to the natural person or to the firm; Dreyer, in: CR LAvoc, 2nd ed. 2022, N. 6 and 11 on Preliminary Remarks to Art. 21–26 BGFA, considers the power of attorney in favour of the natural person to be more appropriate.
#6. Practical Notes
N. 19 Proof of legal qualifications. Although Art. 21 para. 2 BGFA does not require registration, lawyers providing services must prove their qualifications upon request by the judicial or supervisory authorities (→ Art. 22 BGFA). As a practical matter, it is advisable to carry a current certificate of admission issued by the competent authority of the home state together with the Annex to the BGFA listing the recognised professional titles. According to the wording of Art. 22 BGFA, advance proof is not required.
N. 20 Distinction from permanent activity. Anyone wishing to establish a lasting mandate practice in Switzerland should seek entry in the EU/EFTA lawyers' list (→ Art. 27–28 BGFA) at an early stage, rather than waiting until the 90-day limit has been exceeded. According to BGE 151 II 640 consid. 5.7.2, the opening of a law office in Switzerland and a declared intention to practise permanently are in principle sufficient to satisfy the registration requirements; prior activity of 90 days is not required. The distinction is legally significant on account of its implications under immigration law (residence permit) and for professional supervision.
N. 21 Mandatory representation and conjunction. Where an EU/EFTA lawyer providing services is engaged in Swiss proceedings in which legal representation is mandatory, a lawyer entered in the cantonal register of lawyers must be involved before the proceedings begin (→ Art. 23 BGFA). In practice this situation rarely arises, as Swiss law scarcely recognises genuine mandatory legal representation (in the sense of procedural incapacity without a lawyer); certain cantonal administrative court proceedings may constitute an exception. Conjunction requires no particular form; neither a formal power of attorney nor physical presence of the registered lawyer is required (BBl 1999 6052).
N. 22 Professional conduct rules and disciplinary supervision. EU/EFTA lawyers providing services are subject to the Swiss professional conduct rules (→ Art. 12 BGFA) and to supervision by the cantonal supervisory authorities to the extent that they are active in Switzerland (→ Art. 25–26 BGFA). Parallel professional obligations towards the home state continue to apply. In the event of breaches of professional conduct rules, the disciplinary measures under → Art. 17 BGFA are applicable despite the absence of registration. Weber-Stecher, in: Nater (ed.), Professional Legal Services, 2000, p. 57, notes that this dual subjection carries a potential for conflict which has so far barely been addressed in practice.
Cross-references: → Art. 22 BGFA (proof of legal qualifications); → Art. 23 BGFA (conjunction in mandatory representation proceedings); → Art. 24 BGFA (professional title); → Art. 25–26 BGFA (professional conduct rules and supervision); → Art. 27–29 BGFA (permanent practice under home-country professional title); → Art. 30–34 BGFA (registration in the cantonal register of lawyers); ↔ Art. 4 BGFA (registration); ↔ Art. 68 para. 2 CPC (party representation in civil proceedings); ↔ Art. 127 para. 5 CrimPC (lawyers' monopoly in criminal proceedings); ↔ Art. 40 BGG (representation before the Federal Supreme Court); → Art. 5 AFMP (freedom to provide services).
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