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Art. 31 BGFA — Aptitude Test
#Doctrine
#1. Legislative History
N. 1 The BGFA implements three EU Directives: the Services Directive (77/249/EEC), the Diploma Recognition Directive (89/48/EEC), and — for permanent establishment — the Establishment Directive (98/5/EC); cf. BBl 1999 6013, 6022 ff. Art. 31 implements the Diploma Recognition Directive (89/48/EEC), which governs the recognition of higher-education diplomas attesting to professional training of at least three years' duration and permits the home state to prescribe an aptitude test or adaptation period where there are substantial differences between the training programmes (cf. Art. 4(1)(b) of Directive 89/48/EEC).
N. 2 The Federal Council Message expressly states that EU lawyers who are fully integrated into a cantonal lawyers' register — i.e. after passing the aptitude test under Art. 31 or completing the interview under Art. 32 BGFA — are no longer subject to any formal distinction from Swiss lawyers (BBl 1999 6013, 6057). The right to use the professional title of the canton of registration replaces the original professional title, while Art. 10(6) of the Establishment Directive (98/5/EC) additionally permits continued use of the original professional title; this is incorporated in Art. 33 BGFA.
N. 3 The legislation underwent several parliamentary readings between 1999 and 2000. The National Council adopted amendments to the Federal Council's draft on 1 September 1999; the Council of States followed with further amendments on 20 December 1999. After the conciliation procedure (National Council 7 March 2000, Council of States 16 March 2000 with referral back to committee, Council of States 5 June 2000, National Council 14 June 2000), both chambers approved the text on 20/23 June 2000. The final vote took place on 23 June 2000. The parliamentary debates concerned primarily the delineation of federal law and cantonal law (→ Art. 3 BGFA) and the conditions for entry in the register, rather than the technical details of the aptitude test itself.
#2. Systematic Classification
N. 4 Art. 31 falls within the 5th Section of the BGFA («Permanent practice under the professional title of the home state», Arts. 27–29) and the 6th Section («Entry in the cantonal lawyers' register», Arts. 30–34a). The provision regulates one of the two alternative routes to entry in the cantonal lawyers' register under Art. 30(1)(a) BGFA for EU/EFTA lawyers. The other route is governed by Art. 30(1)(b) BGFA (at least three years of registration in the EU/EFTA lawyers' list with effective and regular activity in Swiss law) and Art. 32 BGFA (interview on professional aptitude where the period of activity in Swiss law is shorter).
N. 5 The three modes of access for EU/EFTA lawyers form a coherent system: (1) temporary provision of services of up to 90 working days per calendar year without registration (Arts. 21–26 BGFA), (2) permanent practice under the original professional title via the EU/EFTA lawyers' list (Arts. 27–29 BGFA), (3) full integration through entry in the cantonal lawyers' register (Arts. 30–34a BGFA). Art. 31 belongs to the third mode. BGE 151 II 640 E. 4.2 (judgment 2C_271/2024 of 26 February 2025) expressly confirms this three-tier structure.
N. 6 Inherent to the system is the function of the aptitude test as a bridge between the EU/EFTA legal qualification (which is based on a different national legal order) and the Swiss patent of attorney. The test substitutes the Swiss legal traineeship and examination under Art. 7(1)(b) BGFA; the substantive academic training requirement (Art. 7(1)(a) BGFA) is equivalently replaced by Art. 31(1)(a) BGFA. ↔ Art. 30 BGFA; → Art. 32 BGFA; → Art. 33 BGFA (professional title after integration).
#3. Elements of the Provision / Normative Content
N. 7 Personal scope (Art. 31(1)): Admission to the aptitude test is open to nationals of EU or EFTA member states. The decisive criterion is nationality of a member state, not the place where the diploma was obtained. The Administrative Court of Zurich (VB.2016.00490, final judgment of 8 December 2016) clarified that the professional qualification for entry in the list under Art. 28 BGFA does not necessarily have to have been acquired originally in an EU or EFTA member state; this reasoning applies mutatis mutandis to admission to the aptitude test: what is decisive is the current entitlement to practise as a lawyer in a member state (Art. 31(1)(b) BGFA).
N. 8 Academic requirements (Art. 31(1)(a)): The applicant must have completed at least three years of higher education and any additional professional training that may be required. This requirement corresponds to Art. 1 of Directive 89/48/EEC (higher-education diploma attesting to a course of study of at least three years). Where the course of study is shorter, admission to the aptitude test is precluded; an adaptation period is not provided for in the BGFA.
N. 9 Legal qualification (Art. 31(1)(b)): The diploma must entitle the applicant to practise the legal profession in an EU or EFTA member state. The decisive factor is the current entitlement to practise in the home state, not the formal designation of the qualification. The professional titles of the member states are listed in the Annex to the BGFA. The Federal Supreme Court confirmed in judgment 2C_897/2015 of 25 May 2016 E. 6.2.3 that the legal qualification under Art. 31(1)(b) BGFA is accepted regardless of whether the foreign patent of attorney is tied to substantive requirements only or also to personal requirements — the legislature had focused on the conditions for entry in the register, not on the requirements of the foreign patent itself.
N. 10 Competent commission (Art. 31(2)): The aptitude test must be taken before the bar examination commission of the canton in whose register the applicant wishes to be entered. Competence is thus linked to the place of registration. The BGFA does not expressly provide for intercantonal recognition of the test result; in practice, however, the test is generally taken only once. Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 176 notes that the cantonal examination commissions are required to structure the test in accordance with the requirements of federal law.
N. 11 Subject matter of the test (Art. 31(3)): The aptitude test covers Swiss law. The cantons determine the precise subject matter; it must cover the material differences between the Swiss and the foreign legal order. In contrast to the regular bar examination under Art. 7(1)(b) BGFA, a full traineeship cannot be required; the test is limited to the gaps in knowledge that actually exist. Bohnet/Martenet, Droit de la profession d'avocat, 2009, para. 876 ff. emphasise that the aptitude test must be designed proportionately and may not in practice attain the same standard as the full bar examination.
N. 12 Personal requirements: Art. 31 governs only the specific substantive conditions for admission to the aptitude test. The general personal requirements for registration under Art. 8 BGFA (legal capacity, absence of unsatisfied debt-enforcement certificates, absence of relevant criminal convictions, independence) apply cumulatively and must be met at the time of registration; this follows from Art. 30(2) BGFA, which provides, upon passing the aptitude test, for registration with the same rights and duties as domestic lawyers. ↔ Art. 8 BGFA; → Art. 30(2) BGFA.
#4. Legal Consequences
N. 13 Passing the aptitude test gives rise to an entitlement to entry in the cantonal lawyers' register under Art. 30(1)(a) BGFA, provided that the remaining requirements (in particular Art. 8 BGFA and a business address in the canton) are met. Registration confers the same rights and duties as entry based on a cantonal patent of attorney; in particular, freedom of movement under Art. 4 BGFA applies throughout Switzerland (Art. 30(2) BGFA).
N. 14 After passing the test and being entered in the register, the Federal Council Message (BBl 1999 6013, 6057) holds that no formal distinction from Swiss lawyers exists any longer. Consequently, the professional title rules of Art. 33 BGFA apply: the registered person may use the professional title of the canton of registration and may additionally bear their original professional title in the official language of the home state. → Art. 33 BGFA.
N. 15 Failure to pass the aptitude test is not a definitive exclusion: retaking the test is possible under cantonal examination law. Alternatively, the route via three years of registration in the EU/EFTA lawyers' list with effective activity in Swiss law remains open (Art. 30(1)(b) BGFA in conjunction with Art. 32 BGFA). → Art. 32 BGFA.
N. 16 The professional rules (Art. 12 BGFA) and disciplinary supervision (Art. 17 BGFA) apply without restriction following registration. Full integration also means that the EU/EFTA lawyer is removed from the EU/EFTA lawyers' list under Art. 28 BGFA if they were previously entered therein; parallel registration is not provided for (cf. Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 176). ↔ Arts. 12, 17 BGFA.
#5. Contested Issues
N. 17 Relationship of the aptitude test to the regular bar examination: It is disputed how far the aptitude test may diverge in content from the regular cantonal bar examination. Bohnet/Martenet, Droit de la profession d'avocat, 2009, para. 876 ff. take the view that the test must be limited to the actual gaps in knowledge of Swiss law and may not in practice constitute a complete re-examination, since Directive 89/48/EEC requires the compensatory mechanism to be proportionate. Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 176 ff. acknowledges the scope for cantonal variation but likewise emphasises the constraint imposed by EU law. In practice, cantonal rules are not always consistent; a Federal Supreme Court clarification of the maximum scope of the aptitude test is still outstanding.
N. 18 Personal requirements for the foreign patent of attorney: The Federal Supreme Court resolved a doctrinal dispute in judgment 2C_897/2015 of 25 May 2016 E. 6.2.2–6.2.3: Kettiger (Jusletter 28 September 2009, p. 5) argued that Art. 31 BGFA implied that the patent of attorney certified only substantive qualifications, not personal requirements, because EU/EFTA lawyers were required only to demonstrate substantive aptitude (aptitude test). The Federal Supreme Court rejected this argument: the legal qualification under Art. 31(1)(b) BGFA is accepted regardless of whether it is linked in the home state to substantive requirements only or also to personal requirements; the legislature's focus was on the conditions for registration in Switzerland, not on the requirements of the foreign patent. The prevailing legal scholarship agrees with this conclusion — Nater, in: Fellmann/Zindel, Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 3 on Art. 3 BGFA; Bohnet/Othenin-Girard/Schweizer, in: Commentaire Romand, Loi sur les avocats, 2010, N. 16 on Art. 3 BGFA.
N. 19 Three-year registration as an alternative and risk of abuse: The possibility of circumventing the aptitude test by means of three years of registration in the EU/EFTA lawyers' list (Art. 30(1)(b) BGFA) raises the question of whether and when registration in the EU/EFTA lawyers' list without substantial Swiss practice is abusive. The Federal Supreme Court dismissed the risk of abuse as practically low in BGE 151 II 640 E. 5.7.3 (judgment 2C_271/2024 of 26 February 2025), because the competent authority for the subsequent registration in the register verifies effective and regular activity in Swiss law. Bohnet, Droit des professions judiciaires, 3rd ed. 2014, p. 24 confirms this assessment. The aptitude test under Art. 31 therefore remains the more direct, but substantively more demanding, route.
N. 20 Requirements regarding permanence of prior registration: BGE 151 II 640 E. 5.5–5.7 (judgment 2C_271/2024 of 26 February 2025) clarifies that prior registration in the EU/EFTA lawyers' list (Art. 28 BGFA) — as a prerequisite for the alternative route under Art. 30(1)(b) BGFA — may not be made conditional on a prior economic centre of gravity in Switzerland. Earlier case law (judgment 2C_694/2011 of 19 December 2011 E. 4.4) had required a predominant level of activity in Switzerland and was thereby expressly refined. This development facilitates access to the three-year alternative to the aptitude test and thus indirectly reduces the incentive to take the route under Art. 31.
#6. Practical Guidance
N. 21 EU/EFTA lawyers wishing to be entered in the cantonal lawyers' register quickly, without having to wait three years on the EU/EFTA lawyers' list, typically choose the route via the aptitude test under Art. 31. They must apply to the bar examination commission of the canton in which they have their business address (Art. 31(2) BGFA). Before registering for the test, the cantonal provisions on the conduct of the test, subject matter, and admission requirements must be consulted carefully; the cantons have implemented Directive 89/48/EEC in different ways.
N. 22 The following documents are regularly required for admission to the aptitude test: (a) proof of EU/EFTA nationality, (b) higher-education diploma indicating the duration of study (at least three years, Art. 31(1)(a) BGFA), (c) certificate attesting entitlement to practise as a lawyer in the home state (Art. 31(1)(b) BGFA) — the certificate must not be more than three months old (Art. 28(2) BGFA applies mutatis mutandis). In addition, the documents evidencing the personal requirements under Art. 8 BGFA (extract from the debt-enforcement register, extract from the criminal records register) must be provided for the subsequent entry in the register.
N. 23 After passing the aptitude test and being entered in the cantonal lawyers' register, the registered person enjoys Swiss intercantonal freedom of movement (Art. 4 BGFA). They may practise throughout the reserved area of activity and are subject to the professional rules and disciplinary supervision in the same way as all other registered lawyers (Arts. 12–20 BGFA). Continued use of the original professional title in the official language of the home state remains permitted under Art. 33 BGFA, provided that the cantonal professional title is clearly indicated.
N. 24 Candidates for the aptitude test should note that admission to the test does not yet give rise to an entitlement to registration. If, at the time of the application for registration, there are unsatisfied debt-enforcement certificates or the requirements under Art. 8 BGFA are not met, registration must be refused, even if the aptitude test has been passed (→ Arts. 8 and 9 BGFA). Conversely, failure to pass the aptitude test is not a permanent bar; the alternative route via three years of registration in the EU/EFTA lawyers' list (Art. 30(1)(b) BGFA in conjunction with Art. 32 BGFA) remains open.
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