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Art. 22 BGFA — Proof of Legal Qualification
#Doctrine
#1. Legislative History
N. 1 Art. 22 BGFA was enacted as part of the Federal Act on the Free Movement of Lawyers of 23 June 2000 (SR 935.61, in force since 1 June 2002). The provision implements Art. 7(1) of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (the Services Directive). The Message addresses Art. 22 under item 234.22 (BBl 1999 6063). The Federal Council described the regulatory purpose as a straightforward means of oversight: judicial and supervisory authorities should be able — without requiring prior registration — to verify the qualification of EU/EFTA lawyers providing services at any time; proof may be furnished by means of a law licence, a certificate of admission to the legal profession in the home State, or a comparable document (BBl 1999 6063 item 234.22). Page 6052 of the Message (BBl 1999 6052) contains the general presentation of the rules on professional titles for Art. 24 BGFA, not the specific commentary on Art. 22.
N. 2 The parliamentary proceedings concerning Art. 22 were uncontroversial. The Council of States deliberated on the bill on 20 December 1999, and the National Council on 1 September 1999, as well as in the subsequent conciliation rounds until June 2000; both chambers adopted the bill in the final vote on 23 June 2000. The provision was not amended during the legislative process. The substantive differences between the chambers concerned other articles, in particular the conditions for registration and disciplinary supervision.
#2. Systematic Classification
N. 3 Art. 22 BGFA forms part of the fourth section of the Act (Arts. 21–26 BGFA) on the freedom to provide services for EU/EFTA lawyers. Together with the fifth section (permanent practice under the original professional title, Arts. 27–29 BGFA) and the sixth section (entry in the cantonal register of lawyers, Arts. 30–34a BGFA), this section constitutes the European-law-based regime governing international freedom of movement for lawyers.
Art. 22 BGFA also applies — expressly by statutory reference — mutatis mutandis, pursuant to Art. 25(2) BGFA, to EU/EFTA lawyers practising permanently under their original professional title. The mutatis mutandis applicability is the sole structural feature extending Art. 22 BGFA beyond the services context; the details of that application need not be addressed here (→ N. 14 et seq.), since Art. 25(2) BGFA as a referral provision fully conveys its operation in that context.
N. 4 The systematic position of Art. 22 within the services section corresponds to the graduated logic of the BGFA: in the provision of services (Art. 21(1) BGFA, maximum 90 working days per calendar year) there is no prior registration in a register (Art. 21(2) BGFA); as a counterbalance for the absence of ex-ante control, Art. 22 BGFA enables ex-post verification of qualification by judicial and supervisory authorities. The Federal Supreme Court expressly confirmed this rationale in judgment 2A.536/2003 of 9 August 2004, cons. 4.3, holding that the obligation to furnish proof on demand is in fact more favourable for service providers than prior registration, because they may commence representation without advance registration. ↔ Art. 21 BGFA (entitlement to provide services); → Art. 23 BGFA (compulsory representation by a lawyer); → Art. 24 BGFA (professional title); → Art. 25 BGFA (professional conduct rules and mutatis mutandis applicability).
#3. Elements of the Provision / Normative Content
N. 5 Art. 22 BGFA contains a single rule: the federal and cantonal judicial authorities before which lawyers providing services appear, as well as the supervisory authorities over lawyers, may require those lawyers to prove their legal qualification. The provision establishes a duty on the part of the lawyer that is triggered by a request from an authority; in the absence of such a request, there is no spontaneous obligation to furnish proof.
N. 6 Addressees of the request are, on the one hand, the «federal and cantonal judicial authorities» — i.e. all ordinary courts and arbitral tribunals exercising a public function — and, on the other, the «supervisory authorities over lawyers» within the meaning of Arts. 14 et seq. BGFA. Other public offices (e.g. notarial offices, land registry offices) do not fall within the wording of the provision; to the extent that they supervise party representation in administrative proceedings, they may, if applicable, rely on cantonal law.
N. 7 Persons subject to the obligation to furnish proof are «lawyers providing services» within the meaning of Art. 21(1) BGFA: nationals of EU or EFTA member states who are entitled to practise as lawyers in their home State and who carry on activities in Switzerland on a temporary basis. In judgment 2A.536/2003, cons. 3.2.1, the Federal Supreme Court drew the distinction between the provision of services (Art. 21 BGFA) and permanent practice (Art. 27 BGFA) on the basis of the frequency and duration of the activity, and clarified that Art. 22 BGFA directly applies, as a rule, only to lawyers appearing within the services framework.
N. 8 Subject matter of the proof is the «legal qualification». The Message gives as examples: a law licence, a certificate of admission to the legal profession in the home State (BBl 1999 6063 item 234.22). Any document that credibly demonstrates entitlement to practise as a lawyer in the home State is suitable; the Act does not expressly require official certification or an apostille, though this may be required by the authority pursuant to general procedural principles. The certificate must be current; Fellmann notes that the proof must establish the entitlement existing at the time of the appearance (Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 176 et seq.).
N. 9 Discretion of the authorities: The word «may» confers a discretion on judicial and supervisory authorities. This discretion must be exercised properly; grounds for making a request arise, for example, where there is reasonable doubt as to the qualification, on a first appearance before an authority, or upon application by an opposing party. Weber-Stecher notes that authorities should exercise this power with restraint so as not to impose a disproportionate burden on the freedom to provide services (Weber-Stecher, Internationale Freizügigkeit von Rechtsanwältinnen und Rechtsanwälten im Verhältnis Schweiz–EU, in: Nater [ed.], Professional Legal Services, 2000, p. 57). The Federal Supreme Court confirmed the duty of restrained application in judgment 2A.536/2003, cons. 4.3 and characterised the obligation to furnish proof on demand as a proportionate measure that is in fact favourable to service providers.
#4. Legal Consequences
N. 10 If a lawyer providing services fails to comply with the request, the judicial authority may refuse to admit the lawyer to act as representative; the supervisory authority may — pursuant to Art. 17 BGFA — impose a disciplinary measure. The BGFA does not provide for a separate sanction in Art. 22; the legal consequences follow from the general rules of procedural and disciplinary law. Failure to furnish proof does not automatically result in removal from a register, since there is no register for service providers.
N. 11 Where proof cannot be furnished or the qualification ceases to exist (e.g. revocation of admission in the home State), the entitlement to provide services under Art. 21(1) BGFA lapses. → Art. 17 BGFA (disciplinary measures); → Art. 21 BGFA (conditions for the provision of services).
#5. Contested Issues
N. 12 Relationship to Art. 7 of Directive 77/249/EEC: Art. 7(1) of the Services Directive provides that the competent authority of the host State may require the lawyer to «certify» his or her status as a lawyer of the home State. Art. 22 BGFA uses the broader term «prove» and refers to «legal qualification», which corresponds to the German wording of the Services Directive. Nater and Wipf take the view that Art. 22 BGFA constitutes a complete and EU-compliant implementation (Nater/Wipf, Internationale Freizügigkeit nach dem BGFA, in: Thürer/Weber/Zäch [eds.], Bilaterale Verträge Schweiz–EG, 2002, pp. 258 et seq.). Bohnet/Martenet regard the limitation of the right to request proof to authorities (not private parties) as a reasonable restriction compatible with the Directive (Bohnet/Martenet, Droit de la profession d'avocat, 2009, para. 306).
N. 13 Distinction from proof of qualification upon registration in the list (Art. 28(2) BGFA): Upon registration in the EU/EFTA lawyers' list pursuant to Art. 28(2) BGFA, proof of legal qualification is a mandatory condition for registration (a certificate of registration with the competent authority of the home State, not more than three months old). By contrast, proof under Art. 22 BGFA is occasion-specific and not subject to formal requirements. BGE 151 II 640, cons. 5.5 clarified that the proof requirements under Art. 28(2) BGFA are to be applied with a low threshold in the light of EU law, and that production of the home State certificate constitutes, in principle, the only condition for registration. Although that case-law directly governs Art. 28 BGFA, it also has indirect significance for Art. 22 BGFA, in that it elaborates the Federal Supreme Court's proportionality considerations regarding proof of qualification within the overall EU/EFTA lawyers' regime.
N. 14 Mutatis mutandis application to permanently practising lawyers (Art. 25(2) BGFA): Art. 25(2) BGFA declares Art. 22 BGFA applicable mutatis mutandis to lawyers practising permanently under their original professional title (Art. 27 BGFA). The «mutatis mutandis» application means that the discretion of the authorities and the absence of formal requirements for proof also apply in that context; the difference is that such persons are entered in the EU/EFTA lawyers' list and their qualification has therefore already been verified by an authority. Fellmann notes that a fresh request under Art. 22 BGFA in respect of permanently practising lawyers who are already registered will generally be justified only where there are specific doubts as to the continuing existence of the qualification (e.g. information regarding disciplinary proceedings in the home State) (Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 179).
N. 15 Consequences of Brexit: Since the withdrawal of the United Kingdom from the EU on 31 January 2020 (taking effect for Switzerland on 1 January 2021 as a result of the termination of the bilateral Agreement on the Free Movement of Persons with effect from that date), British solicitors and barristers no longer fall within the scope of Arts. 21 et seq. BGFA. They may no longer rely on Art. 22 BGFA to prove their qualification in order to appear in Switzerland in the context of the free provision of services. General immigration law is applicable to them; to practise in Switzerland they require an authorisation under cantonal lawyers' law or must satisfy the registration conditions under Art. 7 BGFA. No bilateral agreement with the United Kingdom restoring the former legal position exists (status: 2025).
#6. Practical Notes
N. 16 In practice, Art. 22 BGFA is rarely invoked as a standalone issue, since the question of legal qualification before Swiss courts is generally sufficiently evidenced by the law licence of the home State (submission of a copy) or by appearing under the professional title in accordance with Art. 24 BGFA. Judicial authorities make use of the power to request proof primarily where the professional title used is unfamiliar or where there are doubts as to the currency of the admission.
N. 17 Lawyers engaged in cross-border provision of services with Switzerland should at all times carry a current certificate from the competent authority of their home State (e.g. bar association, Rechtsanwaltskammer, Bar Council, Ordre des avocats). This certificate can be produced without difficulty upon request and satisfies the requirements of Art. 22 BGFA in all cases. In the case of permanent practice, proof is already furnished by the registration certificate under Art. 28(2) BGFA; Art. 22 BGFA then has only residual significance (→ N. 14).
N. 18 Supervisory authorities are required to submit a request for proof of qualification in writing or in a form documented in the case file, so that the lawyer has the opportunity to respond within a reasonable period. An immediate refusal to admit the lawyer to act as representative without a prior opportunity to furnish proof would be incompatible with the principle of proportionality and the guarantee of fair proceedings (Art. 29 FC).
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