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Art. 26 BGFA — Information on Disciplinary Measures
#Doctrine
#1. Legislative History
N. 1 Art. 26 BGFA implements Art. 7(2) of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (OJ EC No. L 78/17) into Swiss law. This Directive obliges host states to notify the competent authority of the home state when disciplinary measures are taken against lawyers providing services. The Directive was not directly applicable to Switzerland as a non-EU member state, but was incorporated into the Swiss-European legal framework by reference in Annex III, B.3 of the Agreement on the Free Movement of Persons of 21 June 1999 (AFMP; SR 0.142.112.681). Together with Art. 25 BGFA, Art. 26 BGFA forms the concluding provision of Section 4 on the temporary provision of services.
N. 2 The Federal Council's Dispatch of 28 April 1999 (BBl 1999 6013, 6054) reveals that the legislature conceived the duty to provide information as a necessary counterpart to the supervision of EU/EFTA lawyers providing services: since these lawyers are not entered in the cantonal register of lawyers but are only kept on a special list (→ Art. 28 BGFA), the home state requires knowledge of disciplinary measures in order to be able to act on the person concerned in turn. The parliamentary deliberations on Art. 26 BGFA proceeded without any individually attributed motions or proposed amendments: the National Council (1 September 1999) and the Council of States (20 December 1999) adopted divergences from the Federal Council's draft, thereafter underwent several rounds of conciliation (National Council 7 March 2000; Council of States 16 March 2000 with referral back to the committee; Council of States 5 June 2000; National Council 14 June 2000), and adopted the Act in the final vote on 23 June 2000. The available minutes contain no individually attributed contributions for Art. 26 BGFA; the structural divergences in the conciliation procedure concerned other provisions of the Act. Art. 26 BGFA has been in force since 1 June 2002 (AS 2002 862) and has remained unchanged since then.
#2. Systematic Classification
N. 3 Art. 26 BGFA stands at the end of Section 4 (Arts. 21–26 BGFA) on the temporary provision of services. The provision closes the regulatory circle of the section:
| Provision | Content | |-----------|---------| | Arts. 21–22 BGFA | Entitlement and proof of qualification | | Arts. 23–24 BGFA | Corresponding lawyer and professional title | | Art. 25 BGFA | Applicable professional rules | | Art. 26 BGFA | Information on disciplinary measures to the home state |
N. 4 The provision is closely linked to Art. 25 BGFA (subjection to the professional rules under Art. 12 BGFA) and Art. 17 BGFA (disciplinary measures): if a lawyer providing services violates the professional rules, the Swiss supervisory authority imposes a disciplinary measure under Art. 17 BGFA; Art. 26 BGFA then obliges that authority to inform the competent authority of the home state. This duty to inform supplements domestic disciplinary jurisdiction with a cross-border duty of coordination. ↔ Art. 25 BGFA; → Art. 17 BGFA; → Art. 15 BGFA.
N. 5 For EU/EFTA lawyers practising on a permanent basis (Arts. 27–34 BGFA), there is no express parallel provision to Art. 26 BGFA. The prevailing doctrine derives a corresponding duty for this group of persons from Art. 7(1) of Directive 98/5/EC and from the overall system (Fellmann/Zindel, BSK BGFA, 2nd ed. 2011, Preliminary Remarks to Arts. 27–34 N. 12; Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 844). The question of analogy is to be resolved in light of the principle — confirmed in BGE 151 II 640 (2C_271/2024 of 26 February 2025) at E. 4.3 — that BGFA provisions on EU/EFTA lawyers must be interpreted in conformity with the Directives.
#3. Content of the Provision
N. 6 Art. 26 BGFA reads, in accordance with the authoritative text on Fedlex (SR 935.61):
«The supervisory authority shall inform the competent authority of the home state of any disciplinary measures it orders against lawyers providing services.»
The provision establishes an active duty to inform on the part of the cantonal supervisory authority vis-à-vis the competent authority of the home state. It presupposes three constituent elements: (a) a disciplinary measure, (b) ordered against a lawyer providing services, (c) by the supervisory authority.
3.1 Lawyers Providing Services
N. 7 «Lawyers providing services» within the meaning of Art. 26 BGFA are persons who fulfil the requirements of Art. 21(1) BGFA: nationals of EU or EFTA member states who are authorised to practise law in their home state under one of the professional titles listed in the Annex to the BGFA and who are temporarily active in Switzerland. Such lawyers are entered neither in the cantonal register of lawyers (Arts. 5 ff. BGFA) nor in the EU/EFTA lawyers' list (Art. 28 BGFA) (Art. 21(2) BGFA). According to BGE 151 II 640 at E. 4.2.1, they are limited to a maximum of 90 working days per calendar year (Art. 5 AFMP).
3.2 Disciplinary Measure
N. 8 The term «disciplinary measures» in Art. 26 BGFA is not defined independently; it refers to the catalogue of measures in Art. 17(1) BGFA: caution, reprimand, fine of up to CHF 20,000, and prohibition on practising for up to two years. All four types of measure trigger the duty to inform; the text does not provide for any restriction to «serious» measures. Fellmann/Zindel (BSK BGFA, 2nd ed. 2011, Art. 26 N. 4) take the view that even merely formally final — but not yet executed — measures trigger the duty, since the home state should be informed as early as possible. → Art. 17 BGFA.
3.3 Competent Authority of the Home State
N. 9 Which authority or professional organisation of the home state qualifies as the «competent authority» is determined not by Swiss law but by the law of the respective home state. In practice, these are typically national bar associations or disciplinary authorities (e.g., the Conseil national des barreaux in France, the Bundesrechtsanwaltskammer in Germany, the Consiglio Nazionale Forense in Italy). The supervisory authority must enquire in advance as to the competent authority; notification to a non-competent authority does not discharge the duty (Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 845).
3.4 Nature and Scope of the Information
N. 10 Art. 26 BGFA does not prescribe the nature or content of the information. From the purpose of the provision — to enable coordinated supervision — it follows that the notification must contain at least the following details: the identity of the lawyer concerned, the type and severity of the disciplinary measure, the professional duty breach underlying it, and the date on which the decision became final. Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 1190, recommends a written notification in the official language of the home state, insofar as this is practicable. No formal requirements are prescribed.
#4. Legal Consequences
N. 11 Art. 26 BGFA establishes a legal duty on the part of the supervisory authority, not a mere discretionary power. The duty to inform arises by operation of law; no application by the lawyer concerned or by the home state is required. If the notification is not given, the supervisory authority violates a duty under federal law. The provision has no direct effect on the lawfulness of the disciplinary measure itself: a failure to notify does not affect the validity of the measure.
N. 12 For the lawyer concerned, the notification in the home state produces indirect legal consequences: the competent authority of the home state may in turn initiate disciplinary proceedings or adjust existing restrictions. The question of whether the principle of «ne bis in idem» precludes double sanctioning is governed by the law of the home state and by general rule-of-law principles; the Federal Supreme Court, prior to the entry into force of the BGFA in the cantonal context, held that cumulative disciplinary sanctioning is permissible provided the principle of proportionality is respected (BGE 108 Ia 230 at E. 2b).
N. 13 Data protection must be observed in the course of transmission. Since 1 September 2023, the revised Federal Act on Data Protection (revFADP; SR 235.1) applies. The disclosure of personal data abroad is in principle permissible under Art. 16(1) revFADP where the recipient country ensures an adequate level of protection. In the case of EU/EFTA states, this is regularly to be affirmed in view of the GDPR (cf. Art. 19(1)(a) revFADP). For transmissions to home states for which no adequacy decision exists, appropriate safeguards must be agreed. The revised FADP (SR 235.1, in force since 1 September 2023) replaces the former FADP (SR 235.1, repealed); the article numbering has changed, so that earlier references to Arts. 17 and 19 of the old FADP must now be updated to the corresponding provisions of the revFADP.
#5. Disputed Issues
N. 14 Relationship to Art. 25 BGFA: Does Art. 26 BGFA presuppose a prior disciplinary decision? According to the wording («disciplinary measures which it orders»), the duty to inform presupposes a formal order, not merely the initiation of disciplinary proceedings. Fellmann/Zindel (BSK BGFA, 2nd ed. 2011, Art. 26 N. 3) advocate this narrow reading: the notification should follow the issuing of the decision, at the latest upon it becoming final. Bohnet/Martenet (Droit de la profession d'avocat, 2009, N. 845), by contrast, argue for earlier notification upon the initiation of serious proceedings, so as to enable preventive coordination by the home state — however without any basis for this in the wording. The dispute is practically significant in relation to interim measures (Art. 17(2) BGFA): whether these also trigger the duty to inform is contested in the legal literature; in view of the protective purpose, there is much to be said in favour of this (Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 1190).
N. 15 Analogy to EU/EFTA lawyers practising on a permanent basis. For EU/EFTA lawyers practising on a permanent basis (Arts. 27–34 BGFA), there is no provision corresponding to Art. 26 BGFA. Art. 7(1) of Directive 98/5/EC, however, expressly provides that the competent authority of the host state shall notify the competent authority of the home state of any disciplinary measure. Fellmann/Zindel (BSK BGFA, 2nd ed. 2011, Preliminary Remarks to Arts. 27–34 N. 12) and Bohnet/Martenet (Droit de la profession d'avocat, 2009, N. 844) affirm the analogous application of Art. 26 BGFA to permanently practising lawyers, based on the requirement of interpretation in conformity with the Directives, which the Federal Supreme Court reaffirmed in BGE 151 II 640 at E. 5.1 and 5.6. A minority view (Nater/Zindel, Kommentar zum Anwaltsgesetz, 2020, Art. 27 N. 8) insists on a complete positive-law basis and requires a separate statutory rule for permanently practising lawyers.
N. 16 Relationship to inter-cantonal disciplinary coordination. Prior to the entry into force of the BGFA, it was established in the inter-cantonal context that secondary disciplinary sanctioning must be measured against the principle of proportionality (BGE 108 Ia 230 at E. 2b). Art. 26 BGFA, by contrast, governs exclusively the information of the home state, not domestic coordination between cantons. The question of whether Art. 15(2) BGFA (duty of federal authorities to report) and Art. 26 BGFA form a coherent system of inter-cantonal and international disciplinary coordination is assessed differently in the literature: Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 1185, sees a deliberate lacuna in federal law; Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 848, argue for a development of the law in conformity with the system. ↔ Art. 15 BGFA.
#6. Practical Notes
N. 17 Procedural coordination. At the time of issuing the disciplinary decision, the supervisory authority should simultaneously examine whether Art. 26 BGFA is applicable. This requires that the origin of the lawyer concerned (EU/EFTA state) is recorded on file in the disciplinary proceedings. In practice, it is advisable to document the «competent authority» of the home state in the case file. A lawyer who is active in several cantons and is subject to disciplinary measures in several cantons triggers a separate duty to inform under Art. 26 BGFA in each canton.
N. 18 Data-protection-compliant implementation. The notification under Art. 26 BGFA constitutes a disclosure of personal data to foreign authorities as provided by law within the meaning of Art. 16 revFADP (SR 235.1, in force since 1 September 2023). For EU/EFTA states, an adequate level of protection exists under Art. 19(1)(a) revFADP. The lawyer concerned must, as far as possible, be informed of the transmission in advance (Art. 31 revFADP). The General Data Protection Regulation (GDPR) of the EU may in turn be binding on the receiving authority.
N. 19 Enforcement perspective. Art. 26 BGFA does not give rise to any enforcement obligation on the part of the home state; the notification is purely coordinatory in nature. The practical effectiveness of disciplinary sanctions against foreign lawyers in the provision of services therefore depends on whether the home state takes action in turn. In particularly serious cases, the supervisory authority may additionally consider whether a prohibition on practising under Art. 17(1)(d) BGFA should be pronounced, which takes direct effect in Switzerland without being dependent on the cooperation of the home state. → Art. 17 BGFA.
#Bibliography
- Fellmann/Zindel (eds.), Basler Kommentar zum Anwaltsgesetz (BSK BGFA), 2nd ed. 2011, Art. 26
- Fellmann, Anwaltsrecht, 2nd ed. 2017
- Bohnet/Martenet, Droit de la profession d'avocat, 2009
- Nater/Zindel, Kommentar zum Anwaltsgesetz, 2020
- Dispatch of the Federal Council of 28 April 1999 on the Federal Act on Freedom of Movement for Lawyers, BBl 1999 6013
- Council Directive 77/249/EEC of 22 March 1977, OJ EC No. L 78/17
- Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998, OJ EC No. L 77/36
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