Noch kein Inhalt verfügbar.
Art. 28 BGFA — Registration with the Supervisory Authority
#Doctrine
#1. Legislative History
N. 1 Art. 28 BGFA traces back to the Federal Council's draft Message of 28 April 1999 (BBl 1999 6013). The Federal Council based the BGFA on the Agreement on the Free Movement of Persons (AFMP; SR 0.142.112.681), signed on 21 June 1999, and three EU directives: the Services Directive (Dir. 77/249/EEC), the Mutual Recognition of Higher-Education Diplomas Directive (Dir. 89/48/EEC), and — of central importance for Art. 28 BGFA — the Establishment Directive (Dir. 98/5/EC) to facilitate the permanent practice of the legal profession in a Member State other than that in which the qualification was obtained (BBl 1999 6022 ff.; BGE 151 II 640 E. 4.3).
N. 2 The Message described the concept of the EU/EFTA lawyers' list only briefly: EU/EFTA lawyers wishing to practise under their home-country professional title «register» with the supervisory authority of the canton in which they have a business address. They are required to produce «only» a certificate attesting their registration with the competent authority of their home State (BBl 1999 6066 para. 234.32). The Federal Council's draft of Art. 27 and Art. 28 BGFA was adopted by both chambers without debate (AB 1999 N 1551 ff., 1569; AB 1999 S 1173).
N. 3 The Establishment Directive 98/5/EC was adopted after the signing date of the AFMP (16 February 1998, in force from 14 March 1998). Annex III to the AFMP expressly refers to it. The case law of the CJEU on the Directive issued since then has been progressively incorporated by the Federal Supreme Court into its interpretation of Art. 28 BGFA, leading to a significant evolution of the case law (see below N. 21 ff.).
#2. Systematic Classification
N. 4 Art. 28 BGFA is located in the fifth section of the BGFA («Permanent practice under the home-country professional title», Art. 27–29) and forms the procedural counterpart to the substantive entitlement provision in Art. 27 para. 1 BGFA. The Act distinguishes three modalities of professional practice for EU/EFTA lawyers in Switzerland:
- Freedom to provide services (Art. 21–26 BGFA): temporary activity of up to 90 working days per calendar year, without a registration requirement;
- Permanent practice under the home-country professional title (Art. 27–29 BGFA): registration in the EU/EFTA lawyers' list; Art. 28 governs the registration procedure;
- Entry in the cantonal lawyers' register (Art. 30–34a BGFA): full assimilation following an aptitude test or three years of registration in the list.
N. 5 The EU/EFTA lawyers' list governed by Art. 28 BGFA (also referred to as the «public list») is to be maintained by the supervisory authority pursuant to Art. 14 BGFA. It is conceptually and legally distinct from the cantonal lawyers' register under Art. 5 ff. BGFA (BBl 1999 6066; judgment 2A.536/2003 of 9 August 2004 E. 3.2.2): whereas the register documents full integration into the Swiss legal system, the list enables permanent practice under the home-country professional title — acquired in the home State. ↔ Art. 27 BGFA (entitlement provision), → Art. 30 BGFA (facilitated transfer to the cantonal register after three years of registration in the list).
N. 6 The supervisory authority that maintains the list is also the disciplinary authority (→ Art. 14 BGFA, → Art. 17 BGFA). Registered EU/EFTA lawyers are likewise subject to the professional rules of Art. 12 and 13 BGFA as well as the disciplinary supervision under Art. 14–20 BGFA (Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 179; Bohnet/Martenet, Droit de la profession d'avocat, 2009, para. 841).
#3. Elements of the Provision / Normative Content
3.1 Maintenance of the List (Art. 28 para. 1 BGFA)
N. 7 Art. 28 para. 1 BGFA obliges every cantonal supervisory authority to maintain an EU/EFTA lawyers' list. This obligation is mandatory and leaves no cantonal discretion. The list is public (Art. 3 para. 4 Dir. 98/5/EC); an explicit obligation to publish it is not set out in the BGFA itself, but follows from the Directive and the purpose of supervision (Kellerhals/Baumgartner, in: Nater/Zindel [eds.], Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 1 on Art. 28 BGFA). The EU/EFTA lawyers' list is distinct from the admission list of the cantonal lawyers' register within the meaning of Art. 5 ff. BGFA; it does not confer entitlement to use the local professional title.
N. 8 Competence for registration lies with the supervisory authority of the canton in which the lawyer has a business address (Art. 28 para. 2 BGFA). Where a lawyer practises in several cantons, registration must be effected in the canton of the principal business address (Chappuis/Châtelain, in: Bohnet [ed.], Commentaire romand, Loi sur les avocats, 2nd ed. 2022, N. 3 on Art. 28 BGFA). A change of canton of the business address requires a change of registration.
3.2 Proof of Legal Qualification (Art. 28 para. 2 BGFA)
N. 9 Art. 28 para. 2 BGFA specifies as the only express condition for registration the proof of legal qualification by means of a certificate attesting registration with the competent authority of the home State. This certificate must not be more than three months old. The provision thus mirrors verbatim Art. 3 para. 2 first sentence of Dir. 98/5/EC.
N. 10 The certificate must demonstrate current entitlement to practise as a lawyer in the home State. A single submission suffices for registration; the BGFA does not impose a periodic renewal obligation (unlike, for example, Austrian law, which the EFTA Court found to be contrary to the Directive: judgment of the EFTA Court of 27 November 2013 E-6/13 Metacom AG, para. 60, cited in BGE 151 II 640 E. 5.6.3). The supervisory authority may not require any additional evidence beyond the certificate.
N. 11 According to the now settled case law, the proof required under Art. 28 para. 2 BGFA is in principle the sole condition for registration. This corresponds to the «complete harmonisation» of registration conditions by Art. 3 Dir. 98/5/EC consistently required by the CJEU (CJEU C-431/17 Monachos Eirinaios, paras. 26–28; CJEU C-58/13 Torresi, paras. 38–39; BGE 151 II 640 E. 5.6.3).
3.3 Implicit Condition: Intention of Permanent Practice
N. 12 Although Art. 28 para. 2 BGFA, on its face, requires only the certificate, it follows from the systematic context of Art. 27 para. 1 BGFA that registration presupposes that the applicant does not intend merely to act under the freedom to provide services (Art. 21 ff. BGFA) but has the intention of establishing themselves in Switzerland and practising on a permanent basis (judgment 2A.536/2003 of 9 August 2004 E. 4.1; BGE 151 II 640 E. 5.7.1).
N. 13 The standard of proof for this intention to establish — as clarified by BGE 151 II 640 — must not be set too high. As a general rule, it suffices if there is an intention to operate a law firm in Switzerland on a permanent basis and concrete steps have been taken to that end (e.g. opening of a law firm, business address, infrastructure). As a temporal reference point: an intended activity exceeding 90 working days per calendar year or of indefinite duration indicates permanent practice (BGE 151 II 640 E. 5.7.2; Chappuis/Châtelain, CR LLCA, Art. 27 N. 7).
N. 14 It is impermissible to make registration conditional on the applicant having already, prior to registration, shifted the economic centre of gravity of their activity to Switzerland, not maintaining a second or third law firm abroad, or having already been predominantly active in Switzerland (BGE 151 II 640 E. 5.7.1 and 6.2; see also VG Aargau WBE.2017.393 of 24 January 2018). Equally, immigration-law status alone may not be invoked as an obstacle to registration (BGE 151 II 640 E. 6.3).
#4. Legal Consequences
N. 15 Registration in the EU/EFTA lawyers' list confers entitlement to practise as a lawyer on a permanent basis under the home-country professional title in Switzerland (Art. 27 para. 1 BGFA). The entitlement is a consequence of registration — and not the other way around: prior permanent practice may not be required (BGE 151 II 640 E. 6.2).
N. 16 Registration has far-reaching anticipatory effects: it triggers the running of the three-year period, upon expiry of which — provided effective and regular activity in Swiss law is demonstrated — entry in the cantonal lawyers' register without an aptitude test becomes possible (Art. 30 para. 1 lit. b BGFA). For a subsequent entry in the register, the supervisory authority must verify whether such activity has actually taken place, which factually eliminates the risk of abuse (BGE 151 II 640 E. 5.7.3; Bohnet, Droit des professions judiciaires, 3rd ed. 2014, p. 24).
N. 17 Registered EU/EFTA lawyers are subject to the professional rules (Art. 12 BGFA), professional secrecy (Art. 13 BGFA), and disciplinary supervision (Art. 14–20 BGFA). They use their home-country professional title in the official language of the home State, indicating the professional organisation or the court before which they are authorised to practise (Art. 24 in conjunction with Art. 27 para. 2 BGFA).
N. 18 Refusal of registration constitutes an appealable ruling. The remedy lies under cantonal law; the final cantonal instance is a court (Art. 86 para. 2 BGG); the Federal Supreme Court decides as the appellate authority in public-law matters (Art. 82 lit. a BGG; judgment 2A.536/2003 of 9 August 2004 E. 1).
#5. Disputed Questions
5.1 Development of Case Law on Registration Conditions
N. 19 The interpretation of the concept of «permanent» activity as an implicit registration requirement has undergone a significant development in the Federal Supreme Court's case law, shaped decisively by the CJEU's case law on Dir. 98/5/EC.
N. 20 In judgment 2A.536/2003 of 9 August 2004 (E. 4.1), the Federal Supreme Court recognised for the first time that, from the regulatory context of Art. 28 BGFA, «permanent» activity is additionally required. In the case at hand, the appellant had neither claimed to intend permanent practice nor held the necessary residence permit; the precise requirements for permanence were left open.
N. 21 In judgment 2C_694/2011 of 19 December 2011 (E. 4.4, unpublished), the Federal Supreme Court substantially tightened the requirements: permanent professional practice was held to exist only where the lawyer concerned had «integrated» into the economy of the host State. The centre of gravity of the lawyer's activity had to be in Switzerland; the mere establishment of a secondary law firm was insufficient. The judgment, however, primarily concerned a question of discrimination against Swiss nationals in intercantonal relationships and did not directly address a cross-border situation.
N. 22 With BGE 151 II 640 (2025), the Federal Supreme Court fundamentally clarified this case law and considerably lowered the requirements. The Court emphasised that judgment 2C_694/2011 was based on the case law in CJEU C-55/94 Gebhard (1995) — a judgment issued before Dir. 98/5/EC was adopted. Since then, the CJEU has recognised a «complete harmonisation» of registration conditions that does not permit any national additional requirements (CJEU C-431/17 Monachos Eirinaios; CJEU C-58/13 Torresi). The Federal Supreme Court followed this development: requiring a prior shift of the economic centre of gravity to Switzerland is impermissible (BGE 151 II 640 E. 5.7 and 5.8).
5.2 Relationship between Lawyers Law and Immigration Law
N. 23 Earlier case law closely linked the registration conditions to immigration-law status: a residence permit was regarded as a necessary precondition for registration (judgment 2A.536/2003 of 9 August 2004 E. 3.2.2). Chappuis/Châtelain (CR LLCA, Art. 28 N. 4) and Kellerhals/Baumgartner (Kommentar zum AnwG, N. 3 on Art. 28 BGFA) take the view that the expressly enacted conditions of Art. 28 para. 2 BGFA are exhaustive. The Federal Supreme Court clarified in BGE 151 II 640 E. 6.3 that lawyers law and immigration law are to be assessed independently of one another and that residence status alone does not constitute an obstacle to registration.
5.3 Secondary Law Firm and Multiple Establishments
N. 24 It was disputed whether an EU/EFTA lawyer already established in one or more other States may establish a further place of business in Switzerland. The Administrative Court of Aargau (WBE.2017.393 of 24 January 2018) answered this in the affirmative, holding that the requirement of permanent professional practice does not prohibit EU/EFTA lawyers from opening a secondary law firm. BGE 151 II 640 E. 5.7.1 expressly confirmed this with reference to CJEU 107/83 Klopp (1984): Member States may not restrict the right of establishment in several States (Bohnet/Martenet, Droit de la profession d'avocat, para. 897; Günthardt, Switzerland and the European Union, 2021, p. 393).
5.4 Significance of European Law for Interpretation
N. 25 Art. 16 para. 2 AFMP provides that, for the application of the Agreement, the CJEU case law predating the date of signature (21 June 1999) is authoritative. However, in its consistent case law, the Federal Supreme Court departs from more recent CJEU practice only where «cogent reasons» exist (BGE 147 II 1 E. 2.3; BGE 144 II 113 E. 4.1). In relation to Art. 28 BGFA, which implements Dir. 98/5/EC (itself adopted after the AFMP was signed), the Federal Supreme Court in BGE 151 II 640 E. 5.6 found no cogent reasons to depart from the CJEU case law and adopted the low-threshold interpretation of the registration conditions. Fellmann (Anwaltsrecht, 2nd ed. 2017, para. 169) and Kellerhals/Baumgartner (Kommentar zum AnwG, N. 6 on the preliminary remarks to Sections 4, 5 and 6 BGFA) emphasise that in relation to Sections 4–6 of the BGFA, the corresponding developments in EU law and the relevant CJEU case law must be taken into account.
#6. Practical Notes
N. 26 Application: Registration is effected by submitting a certificate from the competent authority of the home State that must not be more than three months old. The applicant provides their business address in Switzerland. The supervisory authority may not require any additional evidence, in particular no proof of an existing clientele or a specific turnover in Switzerland.
N. 27 Substantiating the intention to establish: In practice, it is advisable to document concrete steps towards establishing a law firm together with the application (lease agreement, law firm address, infrastructure), since supervisory authorities continue to be entitled to examine the intention to establish. While the requirements have deliberately been set low following BGE 151 II 640, a wholly abstract wish to register without any concrete preparatory measures will generally be insufficient.
N. 28 Delimitation of the freedom to provide services from the freedom of establishment: The delimitation is made according to the frequency, duration, and continuity of the activity. A planned activity of more than 90 working days per calendar year signals an intention to establish. In cases of doubt — in particular upon first commencing activity in Switzerland during a start-up phase — registration in the EU/EFTA lawyers' list is recommended, since only by such registration can the three-year period under Art. 30 para. 1 lit. b BGFA begin to run.
N. 29 Cantonal competence in cases of multiple presence: Where a business address exists simultaneously in several cantons, only one registration is to be effected, namely in the canton of the principal business address. A change of canton triggers a duty to notify a change of registration. Cantonal competence at the time of registration also determines the competence of the supervisory authority for disciplinary proceedings under Art. 14 ff. BGFA.
N. 30 Three-year period and transfer to the cantonal register: EU/EFTA lawyers wishing to transfer to the cantonal lawyers' register after three years of registration in the list (Art. 30 para. 1 lit. b BGFA) must demonstrate that during that period they were effectively and regularly active in Swiss law. Mere registration in the list without actual activity is insufficient. The potential for abuse (registration solely for the purpose of running the time period) is therefore limited (BGE 151 II 640 E. 5.7.3).
N. 31 Remedies: Refusal of registration may be challenged by cantonal means of appeal. After exhaustion of the cantonal court proceedings, an appeal in public-law matters to the Federal Supreme Court is available (Art. 82 lit. a BGG). Jurisdiction lies with the Second Public Law Division (cf. BGE 151 II 640; judgment 2A.536/2003 of 9 August 2004).
#Cross-References
↔ Art. 27 BGFA (entitlement provision for permanent practice under the home-country professional title)
→ Art. 21–26 BGFA (delimitation from the freedom to provide services)
→ Art. 30–34a BGFA (transfer to the cantonal lawyers' register)
→ Art. 14 BGFA (supervisory authority as the authority maintaining the list and exercising disciplinary powers)
↔ Art. 12, 13 BGFA (professional rules and professional secrecy, also applicable to persons registered in the list)
→ Art. 17 BGFA (disciplinary measures in the event of breach of professional rules)
→ Art. 27 FC (economic freedom as the constitutional basis for the freedom of establishment)
Noch kein Inhalt verfügbar.