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Art. 23 BGFA — Obligation to Act in Concert
#Doctrine
#1. Legislative History
N. 1 Art. 23 BGFA originates from the Federal Council's draft bill of 28 April 1999. The Federal Council based it on Arts. 4 and 5 of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (the so-called Services Directive). By concluding the Agreement on the Free Movement of Persons of 21 June 1999 (AFMP; SR 0.142.112.681), the Swiss legislature adopted the scope of that Directive, which it listed in Annex III of the AFMP (BBl 1999 6052 f.).
N. 2 Art. 5 of the Services Directive allows host Member States, for activities relating to the defence or representation of a client in legal proceedings, to require as a condition that the lawyer providing the service act in concert with a lawyer who practises before the court concerned. The Message expressly described this acting in concert as «rather a formality» that «reduces the host-State lawyer to the role of a corresponding lawyer» (BBl 1999 6052 f., para. 234.23). The Message further emphasised that two exceptions from the professional rules otherwise applicable to lawyers providing services were deliberately excluded: court-appointed mandatory defence and legal aid representation (Art. 11 lit. g of the BGFA draft) as inappropriate for foreign lawyers acting only occasionally, and the obligation to notify the register (Art. 11 lit. j of the BGFA draft), since no registration in the register takes place.
N. 3 Art. 23 was debated on several occasions during the parliamentary process. The National Council and the Council of States reached various diverging resolutions during the 1999–2000 sessions before both chambers adopted the current version in the final vote on 23 June 2000. No substantive controversies relating to Art. 23 in the strict sense are recorded in the parliamentary materials; the debate focused on the systematic classification of the EU/EFTA provisions as a whole.
#2. Systematic Classification
N. 4 Art. 23 BGFA is situated in the 4th Chapter of the Act («Freedom to Provide Services», Arts. 21–26 BGFA) and governs a qualified restriction on the freedom to practise the profession for EU/EFTA lawyers who provide services temporarily in Switzerland. This Chapter implements the Services Directive (77/249/EEC), while the 5th Chapter (Arts. 27–29 BGFA) implements the Establishment Directive (98/5/EC).
N. 5 Art. 23 BGFA relates to the overall systematic structure as follows:
- → Art. 21 BGFA confers the right to represent parties under freedom to provide services and constitutes the basic provision, the exercise of which Art. 23 restricts in cases where legal representation by a lawyer is mandatory.
- → Art. 22 BGFA governs proof of qualification upon request by the authorities; Art. 23 adds, for proceedings where legal representation is mandatory, the further obligation to cooperate with a registered lawyer.
- ↔ Art. 27 para. 2 BGFA provides that Art. 23 also applies to lawyers who are permanently active in Switzerland and registered in the EU/EFTA lawyers' list (→ N. 9).
- → Art. 25 BGFA subjects lawyers providing services to the professional rules of Art. 12 BGFA; Art. 23 is a lex specialis for proceedings where legal representation is mandatory.
- → Art. 4 BGFA governs the domestic lawyer's monopoly, the substantive protection mechanism of which Art. 23 complements in a cross-border context.
N. 6 The provision bridges freedom to provide services under EU/EFTA law and the Swiss lawyer's monopoly: it permits the exercise of the profession without conferring full equivalence with registered lawyers, while simultaneously safeguarding quality assurance in proceedings of particular importance to the party (Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 209).
#3. Elements of the Provision / Normative Content
N. 7 The elements of Art. 23 BGFA require cumulatively:
(a) Lawyer providing services: The personal scope covers exclusively lawyers providing services under freedom to provide services pursuant to Art. 21 para. 1 BGFA, i.e. EU/EFTA nationals who are entitled to practise the legal profession in their home state under one of the professional titles listed in the Annex to the BGFA, and who are not registered in the EU/EFTA lawyers' list (Art. 28 BGFA) or in the cantonal lawyers' register (Arts. 5 ff. BGFA). Judgment 2A.536/2003 of 9 August 2004, cons. 3.2.1, confirmed that no registration is provided for in respect of this category.
(b) Proceedings requiring mandatory representation by a lawyer: The provision is limited to proceedings in which the applicable procedural law prescribes representation by an admitted lawyer. Mandatory legal representation exists in particular in criminal defence pursuant to Art. 127 para. 5 CrimPC and in civil proceedings where cantonal or federal law so provides. The Obergericht of Zurich held that Art. 127 para. 5 CrimPC establishes mandatory legal representation in a fraud case (Art. 146 SCC), thereby triggering Art. 23 BGFA (Decision UH150139 of 26 August 2015, cons. II.1 f.). The Message expressly noted that mandatory legal representation hardly existed in Switzerland under the legal framework at the time (BBl 1999 6053); this assessment remains broadly valid with qualifications following the entry into force of the CrimPC in 2011, since Art. 127 para. 5 CrimPC distinguishes between mandatory defence and discretionary defence.
(c) Acting in concert: The lawyer providing services must, when conducting the proceedings, act in concert with a lawyer registered in the cantonal lawyers' register. According to the Message, acting in concert is to be understood functionally as a corresponding-lawyer relationship: the registered lawyer bears responsibility vis-à-vis the court as the case may require (BBl 1999 6052 f., with reference to Art. 5 of Directive 77/249/EEC). The Court of Justice of the European Communities (CJEU) held it to be permissible to require the lawyer providing the service to designate the concert-lawyer as authorised agent for service (CJEU, Case C-294/89 of 10 July 1991, para. 35, confirmed by the Obergericht of Zurich, UH150139, cons. II.2).
N. 8 The Act lays down no formal requirements for acting in concert. Practice has — as shown by Decision UH150139 — accepted that the concert arrangement is combined with a corresponding lawyer whose address simultaneously serves as the address for service pursuant to Art. 87 para. 2 CrimPC. There is no obligation to designate the officially appointed duty defence counsel specifically as corresponding lawyer (Obergericht of Zurich, UH150139, cons. II.4).
N. 9 Art. 27 para. 2 BGFA declares Art. 23 to apply mutatis mutandis to EU/EFTA lawyers who are permanently active in Switzerland and registered in the EU/EFTA lawyers' list. The obligation to act in concert therefore applies not only to lawyers practising in Switzerland on an occasional basis, but also to those practising there on a permanent basis without a cantonal practising certificate, provided that proceedings requiring mandatory legal representation are at issue (Judgment 2A.536/2003, cons. 3.2.2; BGE 151 II 640, cons. 4.2.1 f.).
#4. Legal Consequences
N. 10 In the event of non-compliance with the obligation to act in concert, the competent authority (court or public prosecutor's office) must refuse to admit the lawyer providing services as a representative until the concert arrangement has been established. The Obergericht of Zurich confirmed that it is not objectionable for the public prosecutor's office to refuse to admit the applicant as counsel for the accused as long as no corresponding lawyer has been designated (UH150139, cons. II.4).
N. 11 Breach of Art. 23 BGFA may simultaneously constitute a violation of the professional rules pursuant to Art. 12 BGFA in conjunction with Art. 25 BGFA and may give rise to disciplinary consequences pursuant to Art. 17 BGFA. → Art. 17 BGFA.
N. 12 It follows from the protective scope of the provision that the corresponding lawyer functions as a link between the foreign lawyer and the Swiss proceedings. The corresponding lawyer's responsibility vis-à-vis the court affects his or her own standing as a registered lawyer; the corresponding lawyer is liable towards the client under the general rules governing the contract of mandate (Arts. 394 ff. CO) and may in turn be called to account disciplinarily for violations of professional rules.
#5. Disputed Questions
N. 13 Scope of acting in concert: Academic opinion is divided as to whether acting in concert materially requires active co-responsibility on the part of the corresponding lawyer, or whether it amounts to a purely formal authorisation for service. Nater/Wipf, relying on the Message and the Services Directive, take the view that acting in concert constitutes a genuine formality and confines the corresponding lawyer to an administrative role (Nater/Wipf, in: Thürer/Weber/Zäch [eds.], Bilaterale Verträge Schweiz-EG, 2002, pp. 258 f.). Fellmann, by contrast, emphasises that acting in concert may, depending on the circumstances of the case, imply substantive co-responsibility, in particular where the court treats the registered lawyer as the responsible party (Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 209). Practice — notably the CJEU in Case C-294/89, para. 35, and the Obergericht of Zurich in UH150139 — tends towards the formal reading, but leaves the substantive dimension open.
N. 14 Address for service as a necessary consequence: The Obergericht of Zurich has clarified that the obligation to designate an address for service must be based not on Art. 87 para. 2 CrimPC, but on the obligation to act in concert pursuant to Art. 23 BGFA in conjunction with CJEU case law (UH150139, cons. II.2). Weber-Stecher had already noted at an early stage that the designation of an authorised agent for service is a permissible but not necessarily mandatory measure confined to the address of the officially appointed defence counsel (Weber-Stecher, Internationale Freizügigkeit von Rechtsanwältinnen und Rechtsanwälten im Verhältnis Schweiz-EU, in: Nater [ed.], Professional Legal Services, 2000, p. 57). In practice, the question of which address must serve as the address for service is handled differently by different authorities.
N. 15 Relationship to permanent practice: Academic opinion was long divided on whether Art. 23 BGFA also applies to EU/EFTA lawyers who, while not registered in the EU/EFTA lawyers' list, are de facto permanently active in Switzerland. Bohnet/Martenet take the view that such a person would be required to register pursuant to Art. 27 para. 1 BGFA, and that it is impermissible to circumvent the stricter consequences of permanent practice by failing to apply for registration (Bohnet/Martenet, Droit de la profession d'avocat, 2009, para. 841). The Federal Supreme Court has determined the boundary between temporary provision of services (Art. 21 BGFA) and permanent practice (Art. 27 BGFA) by reference to the frequency and duration of the activity and has recognised a generally low-threshold possibility of registration (BGE 151 II 640, cons. 5.7.1 f.). The referral provision in Art. 27 para. 2 BGFA, which declares Art. 23 applicable to registered EU/EFTA lawyers, resolves the main practical situation: even lawyers registered in the list are subject to the obligation to act in concert in proceedings where legal representation is mandatory.
#6. Practical Notes
N. 16 Identifying mandatory legal representation: The lawyer providing services must, before commencing representation, examine whether the specific proceedings require mandatory legal representation under federal law (in particular Art. 127 para. 5 CrimPC) or cantonal law. Where no mandatory legal representation exists, Art. 23 BGFA does not apply; the exercise of the profession is governed solely by Arts. 21 ff. BGFA.
N. 17 Selection of the corresponding lawyer: The corresponding lawyer must be registered in a cantonal lawyers' register (Arts. 5 ff. BGFA); registration in the EU/EFTA lawyers' list does not suffice. It is advisable to record the concert declaration in writing and to submit it proactively to the competent authority, since the authority will refuse admission as a representative in the absence of such evidence (see UH150139, cons. II.4).
N. 18 Address for service: Relying on CJEU case law (Case C-294/89), the public prosecutor's office or the court is entitled to designate the corresponding lawyer's address as the address for service. That address need not be identical to that of the officially appointed duty defence counsel. A Swiss office address of the lawyer providing services him- or herself (if available) may — in accordance with VerwGer SG, B 2023/256 of 19 April 2024 — also satisfy the concert requirement by means of office infrastructure maintained there, provided that the protective purpose of the obligation to act in concert is upheld.
N. 19 Dual applicability for EU/EFTA list registrants: EU/EFTA lawyers who have registered for permanent practice in the EU/EFTA lawyers' list pursuant to Art. 28 BGFA are likewise subject to Art. 23 BGFA by virtue of Art. 27 para. 2 BGFA. They must therefore also cooperate with a cantonally registered lawyer in proceedings requiring mandatory legal representation, until they have possibly been admitted to the cantonal lawyers' register pursuant to Art. 30 BGFA.
N. 20 Delimitation from mandatory defence: Art. 23 BGFA refers to the mandatory legal representation requirement under procedural law, but does not independently establish any such requirement. Whether proceedings require mandatory legal representation is to be assessed exclusively under the applicable procedural statutes (CrimPC, CPC, APA, cantonal procedural laws). → Art. 127 para. 5 CrimPC; Art. 68 CPC.
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