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Art. 29 BGFA – Cooperation with the Competent Authority of the Home State
#Doctrine
Note on the structure of the provision: The metadata for Art. 29 BGFA incorrectly records
absatz_count: 1. The complete text of the provision contains two paragraphs, as confirmed by the Federal Supreme Court in BGE 151 II 271 E. 4.2 through verbatim reproduction of the statutory text. The commentary below therefore correctly refers to para. 1 and para. 2.
#1. Legislative History
N. 1 Art. 29 BGFA implements Art. 7(2) 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 (OJ L 77, 14.3.1998), into Swiss law. The Federal Council's Message of 28 April 1999 (BBl 1999 6013, p. 6056 f., s. 234.33) justifies the duty to coordinate with reference to the dual subjection of the EU/EFTA lawyer: while practising permanently in Switzerland, he or she remains registered with the supervisory authority of the home state and is therefore subject both to the professional rules of that state and to those of the host state, Switzerland. This dual subjection necessitates coordination between the supervisory authorities in order to prevent the professional rules of either state from being circumvented.
N. 2 The Message expressly qualifies the prior notification under para. 1 as a merely formal act: it is not capable of delaying the opening of disciplinary proceedings in Switzerland (BBl 1999 6013, p. 6057; confirmed by BGE 151 II 271 E. 4.3). Directive 98/5/EC does not prescribe any particular form of notification. The BGFA entered into force on 1 June 2002 (SR 935.61). Art. 29 BGFA covers materially the same subject matter as Art. 7(2) of the Directive but goes beyond its wording by expressly regulating ongoing cooperation during the proceedings (para. 2) as well.
N. 3 The Agreement on the Free Movement of Persons between Switzerland and the EU (AFMP, SR 0.142.112.681) constitutes the bilateral framework within which Directive 98/5/EC takes effect for Switzerland. The parliamentary deliberations involved several conciliation rounds (National Council 1999–2000, Council of States 1999–2000) and the final vote on 23 June 2000. The records of those deliberations contain no individually attributable statements on Art. 29 BGFA that would have altered its substantive content; the article was adopted in its current form without any material amendment.
#2. Systematic Classification
N. 4 Art. 29 BGFA concludes the third section of the third chapter of the BGFA («Permanent practice under the home-country professional title», Art. 27–29). Art. 27 governs the basic conditions for permanent practice under the home-country title; Art. 28 sets out the conditions for entry in the EU/EFTA lawyers' register; Art. 29 constitutes the procedural counterpart by bridging, in disciplinary supervision over registered EU/EFTA lawyers, to the supervisory authority of the home state. → Art. 27 BGFA, → Art. 28 BGFA.
N. 5 The provision stands in relation to the general professional rules (→ Art. 12 BGFA) and the disciplinary sanctions regime (→ Art. 17 BGFA): Art. 12 and 17 apply, pursuant to Art. 27 para. 2 in conjunction with Art. 23 BGFA, also to EU/EFTA lawyers practising permanently under their home-country title; Art. 29 establishes the specific procedural regime for this group. Art. 29 BGFA does not apply to EU/EFTA lawyers who only provide services in Switzerland on a temporary basis (→ Art. 21–26 BGFA); they are subject to no registration requirement and therefore to no dual subjection, which is the basis for the duty to cooperate.
#3. Elements of the Provision / Normative Content
N. 6 Para. 1 — Duty of prior notification: Before opening disciplinary proceedings against EU/EFTA nationals who permanently represent parties before judicial authorities in Switzerland under their home-country professional title (→ Art. 27 para. 1 BGFA), the cantonal supervisory authority shall notify the competent authority of the home state. The provision requires three elements to be satisfied: (i) the person concerned is a national of an EU/EFTA Member State; (ii) he or she practises permanently in Switzerland under his or her home-country title; (iii) the supervisory authority intends to open disciplinary proceedings. The notification must take place before the proceedings are opened; no particular medium is prescribed (BBl 1999 6013, p. 6057; BGE 151 II 271 E. 4.3).
N. 7 Para. 2 — Cooperation during the proceedings: During pending disciplinary proceedings, the supervisory authority shall cooperate with the competent authority of the home state, in particular by giving it the opportunity to submit observations. The word «in particular» indicates that the modality listed — the submission of observations — is not exhaustive; other forms of cooperation are possible. The decision-making power remains solely with the Swiss supervisory authority; the home-state authority participates only in an advisory capacity (Kellerhals/Baumgartner, BSK BGFA, 2nd ed. 2011, Art. 29 N. 1, 3, 5, 6; Chappuis/Châtelain, CR LLCA, 2nd ed. 2022, Art. 29 N. 3, 5, 6; BGE 151 II 271 E. 4.4).
N. 8 Personal scope of application: The provision covers lawyers from EU and EFTA Member States who are entered in the public EU/EFTA lawyers' register of a cantonal supervisory authority pursuant to Art. 27 para. 1 BGFA. Nationality must have been demonstrated to the supervisory authority in the course of the registration procedure; in disciplinary proceedings the supervisory authority may rely on that already completed verification (BGE 151 II 271 E. 4.5: The Federal Supreme Court supplemented the facts by stating that a person entered in the cantonal EU/EFTA register who appears before a court must already have established his or her EU nationality to the registration authority).
#4. Legal Consequences
N. 9 Breach of para. 1: Failure to give the prior notification constitutes a procedural defect. This defect is not particularly serious and is not recognisable at first glance within the meaning of the nullity doctrine; it therefore does not render the disciplinary decision void but merely voidable (BGE 151 II 271 E. 4.7.2). If an appeal is upheld, the matter must be referred back to the supervisory authority, which must re-conduct the proceedings in compliance with Art. 29 BGFA (Bohnet/Martenet, Droit de la profession d'avocat, 2009, p. 366 N. 844; Chappuis/Châtelain, CR LLCA, 2nd ed. 2022, Art. 29 N. 11).
N. 10 Breach of para. 2: The same legal consequence — voidability, not nullity — applies to a breach of the duty to cooperate during the proceedings. In BGE 151 II 271 E. 4.7.2 the Federal Supreme Court qualified a breach of both paragraphs simultaneously (no prior notification, no opportunity to submit observations) as not giving rise to nullity, because the home-state authority participates only in an advisory capacity. The supervisory authority does not suspend any proceedings: the notification under para. 1 is purely formal in nature and does not delay the opening of proceedings.
N. 11 Avenues of appeal: The lawyer may raise a breach of Art. 29 BGFA before the Federal Supreme Court for the first time even if he or she did not invoke this objection before the lower instances, since the Federal Supreme Court applies federal law ex officio (Art. 95 lit. a and Art. 106 para. 1 BGG; BGE 151 II 271 E. 4.1 with reference to BGE 142 I 155 E. 4.4.3).
#5. Contested Issues
N. 12 Nature of the prior notification: It is undisputed that the notification under para. 1 is merely formal in character and does not suspend the opening of proceedings (BBl 1999 6013, p. 6057). Kellerhals/Baumgartner (BSK BGFA, 2nd ed. 2011, Art. 29 N. 3) and Chappuis/Châtelain (CR LLCA, 2nd ed. 2022, Art. 29 N. 3) concur on this point, confirmed by BGE 151 II 271 E. 4.3. A question not conclusively resolved in legal writing is whether, upon a breach of para. 1, the supervisory authority must re-conduct the proceedings of its own motion or whether an appellate decision is required: Bohnet/Martenet (2009, p. 366 N. 844) and Chappuis/Châtelain (Art. 29 N. 11) assume a referral back following the lodging of an appeal; spontaneous cure by the authority is not examined in depth in the commentary literature.
N. 13 Legal consequence of breach — nullity vs. voidability: The prevailing doctrine already took the view, prior to BGE 151 II 271, that a violation of Art. 29 BGFA leads only to voidability (Chappuis/Châtelain, CR LLCA, 2nd ed. 2022, Art. 29 N. 11). The Federal Supreme Court expressly confirmed this position in BGE 151 II 271 E. 4.7.2, holding that the merely advisory nature of the home-state authority's participation and the absence of an express nullity sanction in the BGFA militate against the assumption of a qualified defect. A minority view that in some writings placed greater emphasis on the procedural requirement has not prevailed.
N. 14 Relationship to EU Directive: Directive 98/5/EC does not apply to Switzerland directly by virtue of Community law; it takes effect in the relationship between Switzerland and the EU solely through the AFMP (SR 0.142.112.681) and the implementing BGFA. Whether gaps in Art. 29 BGFA are to be filled by means of Directive-conforming interpretation has not been conclusively answered in Swiss legal writing. Bohnet/Martenet (2009, p. 366) favour close alignment with the text of the Directive; an autonomous interpretation guided by Swiss procedural law is advocated by Kellerhals/Baumgartner (BSK BGFA, 2nd ed. 2011, Art. 29 N. 6).
#6. Practical Notes
N. 15 Identifying the competent authority of the home state: Before opening disciplinary proceedings, the cantonal supervisory authority must ascertain the competent supervisory authority of the home state. Since the organisational structures for lawyer supervision vary considerably across EU/EFTA Member States, it is advisable to consult the General Secretariat of the Council of Bars and Law Societies of Europe (CCBE) or to contact the national bar association of the home state directly.
N. 16 Form and documentation of the notification: Art. 29 BGFA does not prescribe any form (BBl 1999 6013, p. 6057). For evidential reasons, a written notification with acknowledgement of receipt is recommended in order to be able to demonstrate compliance with para. 1 in the event of an appeal. According to the Message, the notification should be made «as quickly as possible» and before the formal act of opening proceedings.
N. 17 Distinction from temporary provision of services: Art. 29 BGFA does not apply to EU/EFTA lawyers who are active in Switzerland only occasionally and on a temporary basis (→ Art. 21–26 BGFA). They are subject neither to a registration requirement nor to dual subjection, so that the need for coordination does not arise. The decisive criterion for this distinction is that of permanence within the meaning of Art. 27 para. 1 BGFA (integration into the Swiss legal structure through entry in the register).
N. 18 Practical significance of para. 2: The opportunity to submit observations pursuant to para. 2 enables the home-state authority to bring to the proceedings any parallel disciplinary proceedings in its own country or any disciplinary-relevant prior information regarding the lawyer concerned. The Swiss supervisory authority is not obliged to follow the observations of the foreign authority, but must take note of them in the course of its fact-finding.
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