Noch kein Inhalt verfügbar.
Art. 25 BGFA — Professional Rules (Permanent Practice)
#Doctrine
#1. Legislative History
N. 1 Art. 25 BGFA transposes Art. 6 of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained into Swiss law. The Federal Council's Message of 28 April 1999 (BBl 1999 6013, p. 6053 f.) explains that the permanent practice of the profession under the home-State professional title constitutes a preliminary stage to full integration into Swiss lawyers' law (→ Art. 29–34 BGFA). The Federal Council saw no substantive justification for drawing a distinction, as regards substantive professional duties, between lawyers registered throughout Switzerland and EU/EFTA lawyers practising permanently in Switzerland.
N. 2 The draft legislation initially provided for permanent practice by way of a reference to Art. 21 BGFA (consent in cases requiring mandatory representation by a lawyer) and Art. 23 BGFA (professional rules for service providers). The legislature decided to use the same referral mechanism it had already established for the temporary provision of services (Art. 23), supplementing it only with the additionally applicable provision concerning registration in the register (Art. 12 lit. j BGFA), which — consistently with the overall scheme — remains excluded, since EU/EFTA lawyers in permanent practice are entered on a separate list under Art. 26 BGFA. The parliamentary deliberations took place in several stages between September 1999 and June 2000; the final version was adopted by both Chambers in the final vote of 23 June 2000. The provision entered into force on 1 June 2002 (AS 2002 863).
#2. Systematic Classification
N. 3 Art. 25 BGFA is located in the 5th Section («Permanent Practice of the Profession of Lawyer by Lawyers from Member States of the EU or EFTA») and forms the professional-law centrepiece of that Section. It establishes the substantive legal binding of professional duties for EU/EFTA lawyers who — following entry on the cantonal list pursuant to Art. 26 BGFA — practise permanently in Switzerland under their home-State professional title.
N. 4 The systematic scheme distinguishes three categories of persons subject to different regulatory regimes:
- Swiss and inter-cantonal lawyers: full subjection to Art. 12 BGFA (→ Art. 12 BGFA);
- EU/EFTA lawyers temporarily providing services (Art. 21–24 BGFA): Art. 12 BGFA with the exception of lit. g and lit. j (→ Art. 23 BGFA);
- EU/EFTA lawyers in permanent practice (Art. 27–29 BGFA): Art. 12 BGFA with the exception of lit. g and lit. j (Art. 25 BGFA).
The reference in Art. 27 para. 2 BGFA to Art. 25 BGFA explicitly extends the scope of the professional rules to lawyers who commence permanent practice without having first been entered on the list (BGE 130 II 87 E. 5.1.2; judgments 2A.110/2003 E. 5.1.2 of 29.1.2004 and 2A.111/2003 E. 5.1.2 of 29.1.2004).
N. 5 Art. 25 BGFA interacts with several legal provisions:
- ↔ Art. 12 BGFA: source of the professional rules referred to;
- ↔ Art. 23 BGFA: parallel provision for the temporary provision of services;
- → Art. 26 BGFA: registration requirement for permanent practice;
- → Art. 27 para. 2 BGFA: reference to Art. 25 for the substantive professional duties in the context of permanent practice;
- → Art. 30 para. 2 BGFA: extension to fully integrated EU/EFTA lawyers;
- ↔ Art. 13 BGFA in conjunction with Art. 321 SCC: professional secrecy, which applies without restriction;
- ↔ Art. 6 Dir. 98/5/EC: primary legal basis (national treatment);
- → AGA (SR 0.142.112.681), Annex I Art. 19 and Annex III B.3.
#3. Content of the Provision
N. 6 Art. 25 BGFA contains a blanket reference with exhaustive exceptions: all professional rules of Art. 12 BGFA apply to EU/EFTA lawyers in permanent practice, subject to exactly two exceptions:
-
Art. 12 lit. g BGFA (official duty defence and legal aid representation): This function typically presupposes full integration into the Swiss legal system and is structurally incompatible with the professional affiliation of a foreign-qualified lawyer. The exception corresponds, by analogy, to Art. 4 para. 4 Dir. 77/249/EEC and, by implication, to Art. 5 Dir. 98/5/EC.
-
Art. 12 lit. j BGFA (duty to be registered in the register): EU/EFTA lawyers are not entered in the cantonal lawyers' register under Art. 6 BGFA but on the separate list under Art. 26 BGFA. A cumulative registration duty would therefore be without object; moreover, it would be inconsistent with the overall scheme, since entry on the list under Art. 26 BGFA is conclusively regulated.
N. 7 In all other respects, all duties under Art. 12 BGFA apply without restriction:
- Diligence and conscientiousness (lit. a);
- Independence (lit. b): The requirement of independence applies in full to EU/EFTA lawyers in permanent practice and is based on the principle of national treatment (Art. 6 Dir. 98/5/EC; BGE 130 II 87 E. 5.1.2). The Federal Supreme Court has explicitly held that the argument of reverse discrimination is incorrect, because EU/EFTA lawyers are subject, pursuant to Art. 25 or Art. 27 para. 2 in conjunction with Art. 25 BGFA, to the same professional rules as registered Swiss lawyers;
- Prohibition on conflicts of interest (lit. c);
- Professional secrecy (lit. d, → Art. 13 BGFA);
- Restrictions on advertising (lit. e);
- Administration of client funds (lit. h);
- Continuing professional development (lit. i, to the extent applicable).
N. 8 The applicability of Art. 12 lit. f BGFA (duty to cooperate with authorities) and Art. 12 lit. k BGFA (observance of the professional rules of other cantons) to EU/EFTA lawyers in permanent practice follows directly from the blanket reference. Art. 6 para. 1 Dir. 98/5/EC provides that the registered lawyer is subject to the professional rules of the host State regardless of the organisation of the lawyer's practice; in addition, the lawyer remains subject to the professional rules of the home State. The BGFA regulates only the Swiss side of this dual obligation; the relationship to the professional law of the home State is governed by treaty.
#4. Legal Consequences
N. 9 If an EU/EFTA lawyer in permanent practice infringes the professional rules of Art. 12 BGFA applicable by virtue of Art. 25 BGFA, the disciplinary measures under Art. 17 BGFA apply. This follows from Art. 27 para. 2 BGFA, which establishes the disciplinary authority of the cantonal supervisory authority over EU/EFTA lawyers in permanent practice. Sanctions range from a warning to a professional ban; in the case of serious violations, removal from the list under Art. 26 BGFA is possible (→ Art. 17 BGFA in conjunction with Art. 9 BGFA by analogy).
N. 10 Violations of professional secrecy that are relevant under criminal law (→ Art. 13 BGFA, Art. 321 SCC) affect EU/EFTA lawyers in permanent practice in the same way as registered Swiss lawyers. Criminal liability attaches to the factual activity as a lawyer in Switzerland, not to the form of registration.
N. 11 For procedural purposes, EU/EFTA lawyers in permanent practice are to be treated in the same way as registered Swiss lawyers for the purposes of the right to refuse to testify and restrictions on seizure (Art. 171 CrimPC, Art. 160 CPC), to the extent that they are subject to professional secrecy under Art. 13 BGFA. The professional secrecy provisions presuppose legal activity in Switzerland, not registration in a specific register.
#5. Contested Issues
N. 12 Scope of the independence requirement in respect of employed EU/EFTA lawyers. The most significant contested issue concerns whether the independence requirement applicable by virtue of Art. 25 BGFA (Art. 12 lit. b BGFA) imposes the same institutional requirements on EU/EFTA lawyers in permanent practice as on Swiss lawyers. The Federal Supreme Court clarified in BGE 130 II 87 E. 5.1.2 and in the parallel judgments 2A.110/2003 and 2A.111/2003 that Art. 25 in conjunction with Art. 27 para. 2 BGFA extends the independence requirement in full to EU/EFTA lawyers and thereby precludes reverse discrimination — as feared by National Councillor Nabholz (AB 1999 N 1558). Art. 8 Dir. 98/5/EC confirms this equal treatment for employed foreign lawyers expressly: the host State may refuse them admission only to the extent that it does so in relation to domestic lawyers in the same situation.
N. 13 Relationship between home-State and host-State professional rules. Art. 6 para. 1 Dir. 98/5/EC provides for a dual obligation: the EU lawyer in permanent practice is subject to the professional rules of both the home State and the host State. Fellmann/Zindel (eds.), Basler Kommentar Anwaltsgesetz, 2nd ed. 2019, emphasise that under Swiss law the duties under Art. 12 BGFA are conclusively regulated and do not claim subsidiarity vis-à-vis the law of the home State. Bohnet/Martenet, Droit de la profession d'avocat, 2009, N 1842 ff., on the other hand, identify a normative tension where the law of the home State prescribes stricter standards — for example with regard to the prohibition on advertising (Art. 12 lit. e BGFA). In practice, this conflict is resolved in favour of the stricter standard, since the lawyer must always comply with both sets of duties.
N. 14 Official duty defence and the exception regime (Art. 12 lit. g BGFA). The exception for the official duty defence is justified by Valloni/Steinegger, Bundesgesetz über die Freizügigkeit der Anwältinnen und Anwälte, 2002, p. 46 f., on the ground that this public-law function presupposes full legal and organisational integration into the Swiss legal system. Rohner/Thouvenin, in: Ehrenzeller (ed.), Das Anwaltsrecht nach dem BGFA, 2003, p. 65, note that the Federal Criminal Court (judgment SN.2013.11 of 16.10.2013) requires entry in the cantonal lawyers' register or on the list under Art. 26 BGFA for the appointment of an official defence lawyer, without independently examining the exception under Art. 12 lit. g BGFA. An EU/EFTA lawyer in permanent practice therefore cannot be appointed as official defence lawyer, even if he or she otherwise fulfils all professional duties. This restriction is not contested in its outcome.
N. 15 Client protection and transparency under the dual obligation. Fritz Rothenbühler, Dienstleistungsfreiheit und Berufsanerkennung, insbesondere für Rechtsanwälte, in: Die sektoriellen Abkommen Schweiz-EG, Berner Tage 2002, p. 114 ff., draws attention to the practical difficulty that clients are not always able to discern whether their lawyer is primarily subject to Swiss or foreign professional rules. He advocates a strengthened duty of transparency towards clients regarding dual professional affiliation. Art. 22 BGFA (duty to use the original professional title) partially addresses this issue; however, an express duty to inform based on Art. 12 lit. a BGFA (diligence and conscientiousness) is applicable as a residual provision in cases of uncertainty.
#6. Practical Notes
N. 16 For EU/EFTA lawyers in permanent practice, virtually the entire body of Swiss substantive professional law applies. The exceptions (Art. 12 lit. g and lit. j BGFA) are narrow and exhaustive. Anyone conducting mandates in Switzerland on a permanent basis must in particular:
- comply without restriction with professional secrecy under Art. 13 BGFA in conjunction with Art. 321 SCC;
- avoid any conflict of interest under Art. 12 lit. c BGFA;
- observe the independence requirement under Art. 12 lit. b BGFA, including the institutional requirements in the case of any employment relationship.
N. 17 Disciplinary proceedings. The cantonal authority of the canton in which the EU/EFTA lawyer is entered on the list under Art. 26 BGFA has jurisdiction over disciplinary supervision. Violations of Art. 12 BGFA give rise to the same measures as apply to registered Swiss lawyers (→ Art. 17 BGFA). The home-State authority is to be informed of serious measures pursuant to Art. 7 Dir. 98/5/EC.
N. 18 Delimitation between temporary and permanent practice. Art. 25 BGFA and Art. 23 BGFA are materially parallel: both refer to Art. 12 BGFA with the same two exceptions. The practical significance of the distinction between temporary provision of services (Art. 21–24 BGFA) and permanent practice (Art. 27–29 BGFA) therefore lies not in substantive professional law, but in procedural and registration law. Entry on the list under Art. 26 BGFA is the decisive connecting factor for Art. 25 BGFA. Lawyers who are factually practising on a permanent basis without having registered on the list face, in addition to disciplinary sanctions, criminal consequences for the unauthorised practice of the profession.
N. 19 Transfer to the Swiss register (Art. 29–34 BGFA). Once an EU/EFTA lawyer in permanent practice is fully integrated into the Swiss lawyers' register pursuant to Art. 29 ff. BGFA, the special status lapses. Art. 12 BGFA then applies without any exception, including the duties under lit. g and lit. j. Art. 30 para. 2 BGFA in that regard no longer refers to Art. 25 BGFA, but directly to Art. 12 BGFA.
Cross-references: → Art. 12 BGFA (professional rules); → Art. 13 BGFA (professional secrecy); → Art. 17 BGFA (disciplinary measures); → Art. 22 BGFA (professional title); ↔ Art. 23 BGFA (professional rules for service providers); → Art. 26 BGFA (entry on the list); → Art. 27 para. 2 BGFA (reference to Art. 25); → Art. 29–34 BGFA (integration); → Art. 321 SCC (professional secrecy under criminal law); → Art. 171 CrimPC (right to refuse to testify); → Art. 160 CPC (right to refuse to participate); Art. 6 Dir. 98/5/EC; AGA SR 0.142.112.681 Annex I Art. 19.
Noch kein Inhalt verfügbar.