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Art. 27 BGFA — Principles of Permanent Practice under the Home-State Professional Title
#Doctrine
#1. Legislative History
N. 1 Art. 27 BGFA is directly based on Art. 3 of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 (the so-called Establishment Directive; OJ L 77 of 14 March 1998, p. 36 ff.), which governs the permanent pursuit of the profession of lawyer in a Member State other than that in which the qualification was obtained, under the home-State professional title. This Directive was applicable to Switzerland at the time the BGFA entered into force (1 June 2002) by virtue of Annex III to the Agreement on the Free Movement of Persons (AFMP; SR 0.142.112.681); cf. BGE 151 II 640 recital 4.3.
N. 2 The Federal Council's Dispatch of 28 April 1999 (BBl 1999 6013) explained that EU/EFTA lawyers wishing to practise permanently in Switzerland under their home-State professional title must register with the cantonal supervisory authority. They are required to produce «solely» a certificate attesting to their registration with the competent authority of their home State (BBl 1999 6066). With regard to disciplinary coordination, the Dispatch notes that Art. 7(2) of Directive 98/5/EC obliges the host State to inform the home State before initiating disciplinary proceedings (BBl 1999 6055). The dual subjection to the professional rules of both the home State and the host State makes this coordination necessary; decision-making authority, however, remains exclusively with the Swiss authorities.
N. 3 The parliamentary deliberations on Art. 27 and 28 BGFA were, in substance, uncontroversial. The Federal Supreme Court has noted that the Federal Council's draft of Art. 27 and Art. 28 BGFA was adopted by both chambers without debate (cf. BGE 151 II 640 recital 5.3, with reference to AB 1999 N 1551, 1569; AB 1999 S 1173). Nevertheless, the BGFA as a whole underwent an extensive conciliation procedure: the National Council departed from the draft on 1 September 1999; the Council of States followed with a departure on 20 December 1999; further departures arose on 7 March 2000 (National Council), on 16 March 2000 (referral back to committee by the Council of States), on 5 June 2000 (Council of States), and on 14 June 2000 (National Council), before the Council of States gave its approval on 20 June 2000 and both chambers adopted the Act in the final vote on 23 June 2000. The parliamentary differences concerned predominantly other provisions of the BGFA (in particular the supervisory structure and the professional rules); the fundamental provision of Art. 27 was not affected thereby.
#2. Systematic Classification
N. 4 Art. 27 BGFA opens the third section of the fifth chapter (Art. 27–29) and governs the permanent pursuit of the profession of lawyer under the home-State professional title. This regime differs from two other forms of professional activity: the temporary provision of services under Art. 21 ff. BGFA (up to 90 working days per calendar year, no registration required) and full integration into the Swiss legal profession through registration in the cantonal lawyers' register under Art. 30 ff. BGFA (→ Art. 21 BGFA; → Art. 30 BGFA). The EU/EFTA lawyers' list under Art. 28 BGFA is expressly to be distinguished from the cantonal lawyers' register within the meaning of Art. 5 ff. BGFA (BBl 1999 6066; BGE 151 II 640 recital 4.2.2).
N. 5 Art. 27 BGFA constitutes the fundamental provision of the establishment regime for EU/EFTA lawyers; Art. 28 and 29 BGFA specify the conditions for registration (↔ Art. 28 BGFA) and the applicable professional rules (↔ Art. 29 BGFA). The provision stands in tension with cantonal lawyers' law: Art. 3 BGFA reserves cantonal law to the extent that federal law leaves room for it. In the area of registration requirements, however, the federal legislature has enacted an exhaustive regulation (→ Art. 3 BGFA).
N. 6 In contrast to the regime of permanent practice under Art. 27 BGFA, the temporary provision of services under Art. 21 ff. BGFA precludes any registration on a list (Art. 21(2) BGFA). Conversely, registration in the EU/EFTA lawyers' list does not preclude parallel activity under freedom to provide services in other cantons, as long as the 90-working-day threshold applicable under freedom to provide services is not exceeded (CHAPPUIS/CHÂTELAIN, Commentaire romand, Loi sur les avocats, 2nd ed. 2022, N. 7 on Art. 27 BGFA).
#3. Elements of the Provision / Normative Content
N. 7 Art. 27(1) BGFA sets out two express conditions: (1) nationality of a Member State of the EU or EFTA and entitlement to practise under one of the professional titles listed in the Annex to the BGFA; and (2) registration with a cantonal supervisory authority. According to the German wording («wenn sie bei einer kantonalen Aufsichtsbehörde eingetragen sind») and the French version («après s'être inscrit au tableau»), the entitlement to practise permanently is a consequence of registration — and not the other way around (BGE 151 II 640 recital 5.2). The characteristic of «permanent» practice qualifies the permitted form of activity.
N. 8 The distinction between permanent practice (Art. 27 BGFA) and temporary provision of services (Art. 21 BGFA) is determined by the frequency and duration of the activity, not merely by the establishment of infrastructure (offices) in Switzerland (judgment 2A.536/2003 of 9 August 2004, recital 3.2.2). Fellmann notes that permanent professional practice presupposes that the lawyer has integrated into the economy of the host State (Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 176). A planned activity of more than 90 working days per calendar year, or an activity intended for an indefinite period, indicates an intention to pursue permanent professional practice; the requirements for proof of this intention are to be set at a low threshold (BGE 151 II 640 recital 5.7.2; CHAPPUIS/CHÂTELAIN, Commentaire romand, Loi sur les avocats, 2nd ed. 2022, N. 7 on Art. 27 BGFA).
N. 9 Art. 27(2) BGFA declares Art. 23 and Art. 24 BGFA applicable mutatis mutandis: in proceedings where legal representation is mandatory, lawyers registered under Art. 27 BGFA are also required to act in agreement with a lawyer registered in a cantonal lawyers' register (Art. 23 BGFA). The professional title of the home State must be retained (Art. 24 BGFA), which distinguishes registered EU/EFTA lawyers from lawyers admitted under Art. 30 ff. BGFA to the cantonal lawyers' register, who are permitted to use the professional title customary in the canton.
N. 10 For registration with the cantonal supervisory authority, Art. 28(2) BGFA requires, as the sole formal condition, the production of a certificate attesting to registration with the competent body of the home State (not more than three months old). No further registration requirements are expressly provided; in particular, no prior establishment of a primary centre of activity in Switzerland may be required (BGE 151 II 640 recital 5.7.2; KELLERHALS/BAUMGARTNER, in: Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 3 on Art. 28 BGFA). Nor is it permissible to make registration contingent on the lawyer not maintaining a second or third office in other AFMP Member States (BGE 151 II 640 recital 5.7.1; ECJ, judgment C-58/13 [Torresi] of 17 July 2014, para. 39).
N. 11 Art. 27(2) in conjunction with Art. 25 ff. BGFA subjects lawyers registered in the EU/EFTA lawyers' list to the professional rules of the host canton, including the disciplinary supervision of the cantonal supervisory authority. Under Art. 29(2) BGFA, they are simultaneously subject to the professional rules of their home State. The resulting obligation of coordination is the underlying rationale of the disciplinary cooperation mechanism under Art. 29(2) BGFA (BBl 1999 6055; → Art. 29 BGFA).
#4. Legal Consequences
N. 12 Registration in the EU/EFTA lawyers' list under Art. 27(1) in conjunction with Art. 28(2) BGFA has as its primary effect the entitlement to permanent representation of parties before Swiss judicial authorities under the home-State professional title. Registration also produces two anticipatory effects: first, it enables facilitated registration in the cantonal lawyers' register under Art. 30(1)(b) BGFA (after at least three years of registration on the list and proof of effective activity in Swiss law). Second, it may affect the immigration-law status of self-employed lawyers (Art. 12 ff. Annex I AFMP; BGE 151 II 640 recital 5.4.2).
N. 13 Without registration, or where registration has been refused, EU/EFTA lawyers are limited to practising under freedom to provide services for a maximum of 90 working days per calendar year (Art. 5 AFMP; Weber-Stecher, Internationale Freizügigkeit von Rechtsanwältinnen und Rechtsanwälten im Verhältnis Schweiz-EU, in: Professional Legal Services, 2000, p. 59). Court-appointed defence in criminal proceedings is also available to EU/EFTA lawyers who are registered on the list (Cantonal Court of St. Gallen, Indictment Chamber, AK.2014.361 of 3 February 2015).
N. 14 A refusal of registration on the list constitutes an appealable decision; the hierarchy of instances leads via the cantonal administrative court to the Federal Supreme Court, which may be seised by way of an appeal in public-law matters (Art. 82(a), Art. 86(1)(d) BGG; BGE 151 II 640 recital 1).
#5. Contested Issues
N. 15 Contested issue: Requirements for «permanent» practice. The central controversy concerns the extent to which a permanent activity in Switzerland must be demonstrated before registration in the EU/EFTA lawyers' list can be demanded. The Federal Supreme Court fundamentally clarified its case law in BGE 151 II 640 (= judgment 2C_271/2024 of 26 February 2025):
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Earlier case law (restrictive): In judgment 2A.536/2003 of 9 August 2004, the Federal Supreme Court had inferred from the regulatory context that registration presupposed a «permanent» activity within the meaning of Art. 27(1) BGFA (recital 4.1). Judgment 2C_694/2011 of 19 December 2011 tightened this further: permanent professional practice was held to require that the lawyer had shifted the centre of gravity of his or her activity to Switzerland (recital 4.4); Kellerhals/Baumgartner, Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 2 on Art. 27 BGFA; Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 176 (on integration into the economy of the host State).
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Liberalisation by BGE 151 II 640 (2025): The Federal Supreme Court refined this case law in light of the full-harmonisation effect of Art. 3 of Directive 98/5/EC (ECJ C-58/13 [Torresi]; C-431/17 [Monachos Eirinaios]). The decisive factor is the intention to operate a law firm permanently in Switzerland, combined with corresponding arrangements made to that end. A prior establishment of a primary centre of activity in Switzerland may not be required (BGE 151 II 640 recital 5.7). The Administrative Court of the Canton of Aargau (Administrative Court of the Canton of Aargau, WBE.2017.393 of 24 January 2018) had also previously held that the requirement of permanent professional practice did not prevent EU/EFTA lawyers from opening a second office in Switzerland.
N. 16 Contested issue: Relationship between residence law and registration on the list. The Administrative Court of St. Gallen had, in B 2023/256 of 19 April 2024, refused registration partly on the ground that the applicant held a residence permit without entitlement to gainful employment. The Federal Supreme Court rejected this linkage in BGE 151 II 640 recital 6.3: lawyers' law and immigration law must be assessed independently of each other. Bohnet/Martenet, Droit de la profession d'avocat, 2009, para. 841, support this separation on the basis of the systematic structure of the BGFA.
N. 17 Contested issue: Abuse potential of the liberal interpretation. Where registration in the EU/EFTA lawyers' list is used primarily to trigger the three-year period under Art. 30(1)(b) BGFA, without effective activity in Swiss law, an abuse is present. The Federal Supreme Court relativises this risk by pointing out that the authority responsible for registration in the cantonal lawyers' register must in any event verify whether the person concerned was effectively and regularly active in Swiss law (BGE 151 II 640 recital 5.7.3; Bohnet, Droit des professions judiciaires, 3rd ed. 2014, p. 24; ECJ C-58/13 [Torresi] para. 42 on the prohibition of abuse).
N. 18 Contested issue: Relevance of post-agreement ECJ case law. Pursuant to Art. 16(2) AFMP, the ECJ case law prior to the date of signature (21 June 1999) is in principle determinative for the application of the AFMP. The Federal Supreme Court departs from subsequent ECJ practice only for «compelling» reasons (BGE 147 II 1 recital 2.3; 144 II 113 recital 4.1). Since Directive 98/5/EC was adopted after the date of signature, but the ECJ judgments in Torresi (2014) and Monachos Eirinaios (2019) decisively establish the full harmonisation of registration requirements, the Federal Supreme Court found «compelling» reasons to follow the more recent ECJ practice: the earlier Federal Supreme Court case law was based on the prior judgment in Gebhard (C-55/94, 1995), which had been handed down in a fundamentally different European-law context (BGE 151 II 640 recitals 5.5.3, 5.6.3; KELLERHALS/BAUMGARTNER, Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 6 on Preliminary Remarks to Art. 21–34 BGFA).
#6. Practical Notes
N. 19 EU/EFTA lawyers who wish to practise permanently in Switzerland register with the cantonal supervisory authority of the canton in which they have a business address (Art. 28(1) BGFA). It is sufficient that they intend to operate a law firm permanently in Switzerland and have made the corresponding arrangements to that end. A prior shift of the centre of gravity of their activity to Switzerland is not required (BGE 151 II 640 recitals 5.7.1–5.7.2). Lawyers who simultaneously operate offices in several Member States may nonetheless register (BBl 1999 6055; BGE 151 II 640 recital 5.7.1).
N. 20 For disciplinary proceedings, the following applies: cantonal supervisory authorities are required to inform the competent bodies of the home State before initiating disciplinary proceedings (Art. 29(2) BGFA; Art. 7(2) Directive 98/5/EC; BBl 1999 6055). This notification is formal in character and has no delaying effect on the opening of proceedings. Any professional ban applies only in Switzerland; the home State may draw its own consequences from a Swiss disciplinary decision (→ Art. 29 BGFA; → Art. 17 BGFA).
N. 21 Admitted lawyers from the EU and EFTA are subject to the same procedural rules as domestic lawyers: the AFMP and the BGFA regulate exclusively access to the profession and the modalities of its exercise, not procedural time limits (judgment 4A_83/2008 of 11 April 2008, recital 2.2). Court-appointed defence in criminal proceedings is also open to registered EU/EFTA lawyers (Cantonal Court of St. Gallen, Indictment Chamber, AK.2014.361 of 3 February 2015; Art. 132(2) CrimPC).
N. 22 The three-year period for facilitated registration in the cantonal lawyers' register (Art. 30(1)(b) BGFA) begins to run from the date of registration in the EU/EFTA lawyers' list. During these three years, the lawyers must be able to demonstrate effective and regular activity in Swiss law; a mere «letterbox registration» without actual professional practice will result in the rejection of the subsequent application for registration in the lawyers' register (BGE 151 II 640 recital 5.7.3; → Art. 30 BGFA).
Cross-references: ↔ Art. 28 BGFA (registration requirements and EU/EFTA lawyers' list); → Art. 21 BGFA (temporary provision of services); → Art. 29 BGFA (applicable professional rules, disciplinary coordination); → Art. 30 BGFA (registration in the cantonal lawyers' register); → Art. 3 BGFA (relationship to cantonal law); → Art. 17 BGFA (disciplinary measures); ↔ Art. 23 BGFA (mandatory legal representation); ↔ Art. 24 BGFA (professional title).
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