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Art. 30 BGFA – Principles (Registration of EU/EFTA Lawyers in the Cantonal Register)
#Doctrine
#1. Legislative History
N. 1 Art. 30 BGFA transposes Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 into Swiss law. That Directive aims to facilitate the permanent practice of the legal profession in a Member State other than the one in which the qualification was obtained (cf. BBl 1999 6061, para. 234). The BGFA is further based on the Services Directive 77/249/EEC and the Diploma Recognition Directive 89/48/EEC; all three directives are expressly listed in Annex III to the Agreement on the Free Movement of Persons of 21 June 1999 (AFMP; SR 0.142.112.681) (BGE 151 II 640 consid. 4.3).
N. 2 In its Message of 28 April 1999, the Federal Council explained that EU/EFTA lawyers wishing to establish themselves permanently in Switzerland must complete a qualified recognition procedure, consisting either of an aptitude test (→ Art. 31 BGFA) or a three-year «probationary period» on the EU/EFTA lawyers list (→ Art. 28 BGFA) with demonstrated activity in Swiss law (BBl 1999 6067 f., para. 234.33). The Federal Council's draft of Art. 30 BGFA was adopted by both chambers without discussion (AB 1999 N 1551 ff., 1569; AB 1999 S 1173). The only changes made to the draft were of a linguistic nature; no substantive amendments were introduced by Parliament.
N. 3 In 2019, by the Federal Act of 28 September 2018, Art. 30 BGFA was supplemented by a new para. 1 let. b subpara. 2 (in force since 1 January 2020), which expressly codified the professional aptitude interview as an alternative to the three-year proof of activity (→ Art. 32 BGFA). This explicitly enshrined the possibility of a shorter effective period of activity in Swiss law.
#2. Systematic Classification
N. 4 Art. 30 BGFA appears in Chapter 5 of the BGFA (Art. 27–34a), which governs the permanent practice of the legal profession by EU/EFTA nationals. The Act provides for three levels of market access for EU/EFTA lawyers: (1) temporary provision of services of up to 90 working days per year without registration (→ Art. 21 BGFA), (2) permanent practice under the original foreign professional title with registration on the EU/EFTA lawyers list (→ Art. 27–29 BGFA), and (3) full integration through registration in the cantonal lawyers register under Art. 30 BGFA (judgment 2A.536/2003 of 9 August 2004 consid. 3.2; BGE 151 II 640 consid. 4.2).
N. 5 Art. 30 BGFA mirrors Art. 6–9 BGFA for domestic lawyers: whereas Swiss lawyers require a cantonal lawyers' licence and must satisfy the conditions of Art. 7–8 BGFA, EU/EFTA lawyers need only demonstrate their home-State legal qualification, supplemented by one of the two recognition routes under Art. 30 para. 1 let. a or b BGFA. The waiver of the traineeship requirement under Art. 7 para. 1 let. b BGFA (→ Art. 30 para. 1) corresponds to the Union-law principle of national treatment: EU/EFTA lawyers have already acquired their practical skills in their home State. The personal conditions under Art. 8 BGFA — in particular the requirement of independence — nonetheless apply without restriction to registered EU/EFTA lawyers as well (Art. 30 para. 2; BGE 130 II 87 consid. 5.1.2).
N. 6 The EU/EFTA lawyers list under Art. 28 BGFA and the cantonal lawyers register under Art. 30 BGFA are two distinct instruments with different legal effects: registration on the EU/EFTA lawyers list entitles the lawyer to practise permanently under the home-State professional title (→ Art. 27 para. 1 BGFA); registration in the cantonal register, by contrast, confers full equivalence with domestic lawyers, including the right to use the domestic professional title (Art. 30 para. 2 BGFA; judgment 2A.536/2003 consid. 3.2.3; Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 176 ff.).
#3. Elements of the Provision / Normative Content
N. 7 Scope of application (Art. 30 para. 1): Art. 30 BGFA applies to nationals of EU or EFTA Member States who are entitled to practise the legal profession in their home State under one of the professional titles listed in the Annex to the BGFA. The prerequisite is an existing legal qualification in the home State; the Swiss cantonal lawyers' licence (Art. 7 BGFA) is not required, but the personal conditions under Art. 8 BGFA are (↔ Art. 8 BGFA).
N. 8 First recognition route — aptitude test (Art. 30 para. 1 let. a): EU/EFTA lawyers may obtain registration in the cantonal register by passing an aptitude test under Art. 31 BGFA (→ Art. 31 BGFA). This test covers knowledge of Swiss law to the extent required for the practice of the legal profession in Switzerland. It need not cover the entire legal curriculum but is limited to the differences between the home State's law and Swiss law. This corresponds to Art. 4 of Directive 89/48/EEC, which leaves the host State the choice between an aptitude test and an adaptation period; the BGFA provides exclusively for the test option (Bohnet/Martenet, Droit de la profession d'avocat, 2009, para. 921 ff.).
N. 9 Second recognition route — three-year registration and proof of activity (Art. 30 para. 1 let. b): As an alternative to the aptitude test, EU/EFTA lawyers may obtain registration if they demonstrate cumulatively that they (i) have been registered for at least three years on the EU/EFTA lawyers list of a canton (→ Art. 28 BGFA) and (ii) during that period were effectively and regularly active in Swiss law (Art. 30 para. 1 let. b subpara. 1), or — if the period of activity in Swiss law was shorter — have demonstrated their professional abilities in an aptitude interview (Art. 30 para. 1 let. b subpara. 2; → Art. 32 BGFA). The three-year period runs from the date of registration on the EU/EFTA lawyers list; that registration in turn requires, according to the case law, an intention to practise permanently in Switzerland, whereby BGE 151 II 640 consid. 5.7 holds that no excessive demands may be placed on this proof.
N. 10 Proof of effective activity in Swiss law: «Effectively and regularly» requires, according to Bohnet (Bohnet, Droit des professions judiciaires, 3rd ed. 2014, p. 24), a continuous, not merely occasional, engagement with Swiss law. Proof may be furnished by lists of mandates, court files, correspondence, or other suitable documents. An abusive invocation of the three-year period without effective activity in Swiss law excludes this recognition route by operation of law; the risk of abuse is practically eliminated by the supervisory authority's examination at the point of registration in the cantonal register (BGE 151 II 640 consid. 5.7.3, with reference to the ECJ judgment Torresi, recital 42).
N. 11 Legal consequence of registration (Art. 30 para. 2): Upon registration in the cantonal lawyers register under Art. 30 BGFA, EU/EFTA lawyers acquire the same rights and duties as lawyers holding a cantonal lawyers' licence. They are fully subject to the professional rules under Art. 12 BGFA (in particular the requirement of independence, Art. 12 let. b BGFA) and the professional secrecy obligation under Art. 13 BGFA. They may represent parties before judicial authorities in all cantons throughout Switzerland without any further authorisation (→ Art. 4 BGFA) and are entitled to use the professional title customary in the canton of their establishment (judgment 2A.536/2003 consid. 3.2.3). The disciplinary law under Art. 17 BGFA applies in full (↔ Art. 17 BGFA).
#4. Legal Consequences
N. 12 Equivalence with domestic lawyers: Art. 30 para. 2 BGFA brings about full professional equivalence. The principle of national treatment applies in both directions: EU/EFTA lawyers acquire the same rights (inter-cantonal freedom of movement, professional title, access to the reserved area of practice) and the same duties (professional rules, professional secrecy, disciplinary law, independence requirement) as Swiss lawyers with a register entry. The legal consequence is thus, according to BGE 130 II 87 consid. 5.1.2, the mirror image of the duties of domestic lawyers under Art. 8 para. 1 let. d BGFA: the independence requirement applies without qualification.
N. 13 Anticipatory effect of registration on the EU/EFTA lawyers list: Registration on the EU/EFTA lawyers list (→ Art. 27–29 BGFA) has an important anticipatory effect: it triggers the three-year period under Art. 30 para. 1 let. b BGFA. If registration on the EU/EFTA lawyers list is absent or refused, EU/EFTA lawyers — apart from the aptitude test route — cannot pursue the path under Art. 30 para. 1 let. b BGFA and are limited to the freedom to provide services (90 days; → Art. 21 BGFA) (BGE 151 II 640 consid. 5.4.2).
N. 14 Removal from the register: If an EU/EFTA lawyer registered under Art. 30 no longer satisfies the personal conditions under Art. 8 BGFA or loses their authorisation in the home State, the register entry must be cancelled under Art. 9 BGFA (→ Art. 9 BGFA). The cantonal supervisory authority may take appropriate measures in the exercise of its disciplinary supervision under Art. 17 BGFA (↔ Art. 17 BGFA).
#5. Contested Issues
N. 15 Relationship to the conditions for registration on the EU/EFTA lawyers list: A central contested point concerns the conditions under which registration on the EU/EFTA lawyers list must occur, since that registration is itself a prerequisite for the route under Art. 30 para. 1 let. b BGFA. In judgment 2C_694/2011 of 19 December 2011, the Federal Supreme Court had required that legal activity in Switzerland must constitute the main focus of the lawyer's professional practice. This case law was criticised by Kellerhals/Baumgartner (in: Kommentar zum Anwaltsgesetz, 2nd ed. 2011, n. 3 on Art. 28 BGFA), Chappuis/Châtelain (in: Commentaire romand, Loi sur les avocats, 2nd ed. 2022, n. 4 on Art. 28 BGFA) and Bohnet/Martenet (op. cit., para. 841) as overly restrictive and incompatible with Directive 98/5/EC. BGE 151 II 640 corrected the case law in line with ECJ practice (judgments Torresi, C-58/13, recitals 38 f.; Monachos Eirinaios, C-431/17, recitals 26 ff.): registration on the EU/EFTA list now requires only proof of the legal qualification and the intention to operate a law firm permanently in Switzerland; a prior establishment of a primary economic focus may not be demanded. This considerably facilitates access to the three-year recognition route under Art. 30 para. 1 let. b BGFA.
N. 16 Abuse potential of the three-year registration: Some authors — notably Einhaus (Die Richtlinie 98/5/EG, in: Das künftige Berufsbild des Anwalts in Europa, 2000, p. 53) — have pointed to the risk that EU/EFTA lawyers might register on the EU/EFTA lawyers list without being effectively active in Swiss law, and thereby use the three-year period abusively in order to obtain access to the cantonal register without an aptitude test. BGE 151 II 640 consid. 5.7.3 countered this by holding that at the point of registration in the cantonal register under Art. 30 para. 1 let. b, the authority is required to examine whether the lawyer was effectively and regularly active in Swiss law during the three years; the risk of abuse is thereby practically excluded. Moreover, abusive reliance on Directive 98/5/EC is inadmissible under ECJ law (judgment Torresi, recital 42).
N. 17 Cantonal competences and the reservation under Art. 3 BGFA: It is disputed whether cantons may impose additional requirements within the framework of Art. 30 BGFA. Judgment 2C_897/2015 consid. 6.2.2 indicates that, according to Kettiger (Jusletter 28 September 2009, p. 5), Art. 30 BGFA could be understood as being limited to proof of professional qualifications. The prevailing doctrine and the Federal Supreme Court (judgment 2C_897/2015 consid. 6.2.1; BGE 134 II 329 consid. 5.1 p. 332), however, acknowledge that cantons may impose additional personal conditions within the framework of Art. 3 BGFA, to the extent that federal law does not regulate the matter exhaustively (→ Art. 3 BGFA). Since Art. 30 para. 2 BGFA mandates full equivalence and thereby also renders Art. 8 BGFA applicable, the personal conditions for EU/EFTA lawyers registered under Art. 30 are exhaustively governed by federal law (Fellmann, op. cit., para. 684 f.).
N. 18 Demarcation between the aptitude test route (let. a) and the three-year route (let. b): The question has been discussed in the literature whether the EU/EFTA lawyer has a right to choose between the two recognition routes or whether the authority may prescribe the route. According to Bohnet/Martenet (op. cit., para. 921 ff.), the right of choice belongs to the lawyer; Directive 89/48/EEC and its successor instruments confer a subjective right to recognition once the conditions are met. The authority cannot determine which route the lawyer must pursue.
#6. Practical Notes
N. 19 Choosing the recognition route: EU/EFTA lawyers wishing to practise in Switzerland quickly and who have sound knowledge of Swiss law will generally opt for the aptitude test route (Art. 30 para. 1 let. a in conjunction with Art. 31 BGFA). Lawyers who are already practising permanently in Switzerland under their original professional title and have been registered on the EU/EFTA lawyers list may, after three years, pursue the alternative route under Art. 30 para. 1 let. b BGFA, provided they can demonstrate effective activity in Swiss law. According to BGE 151 II 640 consid. 5.7.2, registration on the EU/EFTA lawyers list is to be obtained with a low threshold; it suffices to demonstrate the intention to operate a law firm permanently in Switzerland and to have taken corresponding steps (e.g. opening of a law firm, business address).
N. 20 Examining personal conditions: When processing an application for registration under Art. 30 BGFA, the cantonal supervisory authority must examine not only the professional recognition conditions (let. a or b) but also the personal conditions under Art. 8 BGFA. In particular, the independence requirement (Art. 8 para. 1 let. d BGFA) applies without restriction; in the case of employed EU/EFTA lawyers, BGE 130 II 87 consid. 5.1 establishes the same (rebuttable) presumption of lack of independence as for domestic lawyers.
N. 21 Documenting the three-year period and proof of activity: EU/EFTA lawyers pursuing the route under Art. 30 para. 1 let. b BGFA should carefully document their activity in Swiss law from the date of registration on the EU/EFTA lawyers list (lists of mandates, court correspondence, written submissions in Swiss proceedings). At the point of registration in the cantonal register, the authority must examine whether the activity was effective and regular. If the period of activity was shorter, the alternative of the professional aptitude interview under Art. 32 BGFA is available; this serves to verify the knowledge of Swiss law acquired during the period of activity.
N. 22 Registration and professional title: Upon registration under Art. 30 BGFA, the EU/EFTA lawyer is entitled and obliged to use the professional title customary in the canton of establishment (e.g. «Rechtsanwalt/Rechtsanwältin» in the Canton of Zurich). The lawyer may no longer appear exclusively under their original foreign professional title; this distinguishes them from EU/EFTA lawyers registered under Art. 27 BGFA, who are required to use their home-State title. The supervisory authority of the canton in which the business address is located maintains the register entry; if the business address moves to another canton, cancellation in the current canton and re-registration in the new canton are required (→ Art. 9 BGFA; cf. BGE 131 II 639 consid. 3 on the obligation to be registered in only one canton, which applies by analogy to EU/EFTA lawyers under Art. 30 BGFA).
#Cross-references
- → Art. 7 BGFA (professional conditions for domestic lawyers, from which Art. 30 para. 1 partially exempts EU/EFTA lawyers)
- ↔ Art. 8 BGFA (personal conditions, fully applicable by virtue of Art. 30 para. 2)
- → Art. 9 BGFA (cancellation from the register)
- ↔ Art. 12 BGFA (professional rules, fully applicable)
- ↔ Art. 13 BGFA (professional secrecy, fully applicable)
- → Art. 17 BGFA (disciplinary law)
- → Art. 21–26 BGFA (provision of services, lower level of integration)
- ↔ Art. 27–29 BGFA (EU/EFTA lawyers list, preliminary stage to Art. 30)
- → Art. 31 BGFA (aptitude test)
- → Art. 32 BGFA (professional aptitude interview)
- → Art. 3 BGFA (cantonal reservation)
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