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Art. 32 BGFA – Interview to Assess Professional Competence
#Doctrine
#1. Legislative History
N. 1 Art. 32 BGFA forms part of the comprehensive integration of the European directives on freedom of movement for lawyers into Swiss law. On 28 April 1999, the Federal Council submitted its Message on the Federal Act on Freedom of Movement for Lawyers (BBl 1999 6013). The sixth section of the BGFA (Art. 30–34) implements Directive 89/48/EEC on a general system for the recognition of higher-education diplomas, which had since been superseded by Directive 2005/36/EC on the recognition of professional qualifications (VB.2016.00490, E. 2.1; BGE 151 II 640 E. 4.3).
N. 2 The central concept of the sixth section is that EU/EFTA lawyers who have engaged in sustained professional practice in Switzerland under their home-State professional title (→ Art. 27–29 BGFA) for three years may seek full assimilation with holders of a cantonal law licence. Those who have completed the three-year registration period but are unable to fully demonstrate effective practice in Swiss law should not be required to sit the aptitude test. Art. 32 therefore creates a less onerous compensatory mechanism: the interview to assess professional competence, as an alternative to the aptitude test under Art. 31 BGFA (BBl 1999 6013, 6058).
N. 3 The Message explains that the former rule in Art. 29 paras. 2 and 3 OG (as then in force), which restricted appearances before the Federal Court to lawyers holding a cantonal law licence, was incompatible with the Agreement on the Free Movement of Persons (AFMP, SR 0.142.112.681) and the new Lawyers Act. The reciprocity clause in Art. 29 para. 3 former OG was, moreover, impermissible under Art. VII GATS; a treaty solution was preferred over autonomous recognition, since the latter would have triggered a conditional most-favoured-nation obligation (BBl 1999 6013, 6058). These considerations informed the design of Art. 30–34 BGFA as a whole.
N. 4 Parliament debated the draft in several readings between September 1999 and June 2000. The National Council diverged from the Federal Council's draft on 1 September 1999; the Council of States in turn diverged on 20 December 1999; after further rounds of conciliation proceedings (National Council 7 March 2000, Council of States 16 March 2000 referral back to committee, Council of States 5 June 2000, National Council 14 June 2000), both chambers approved the text in the final vote on 23 June 2000. No separately attributed statements were recorded with respect to Art. 32 itself; the provision followed the general consensus on the gradual opening to EU/EFTA lawyers.
#2. Systematic Classification
N. 5 Art. 32 BGFA belongs to the sixth section («Registration in the register»), which governs the transition from sustained professional practice under the home-State professional title (fifth section, Art. 27–29 BGFA) to full assimilation in the cantonal register of lawyers. Together with Art. 30 para. 1 lit. b BGFA (substantive precondition), Art. 31 BGFA (aptitude test as alternative), and Art. 33 BGFA (professional title following registration), the provision forms a coherent pathway to admission.
N. 6 The relationship to Art. 31 BGFA is one of mutual exclusivity: Art. 32 does not apply where an aptitude test under Art. 31 has been passed, and vice versa. Art. 32 is the less onerous compensatory mechanism compared with Art. 31 — it places practical verification by means of an interview in the place of a comprehensive written examination. The choice of pathway does not rest in the authority's free discretion but follows from the structure of Art. 30 para. 1 lit. b BGFA: only a person who has completed the three-year registration period in the EU/EFTA lawyers list (→ Art. 28 BGFA) but is unable to demonstrate effective and regular practice in Swiss law throughout the entire period is subject to the interview; a person who provides such proof requires neither interview nor aptitude test (BGE 151 II 640 E. 4.2.3).
N. 7 Systematically, Art. 32 BGFA corresponds to Art. 7 para. 1 BGFA (professional requirements for regular registration) insofar as the interview provides proof of the knowledge of Swiss law required for registration in the cantonal register in a tailored manner, adapted to existing professional experience. → Art. 3 para. 1 BGFA (cantonal responsibility for bar examination commissions) remains decisive.
#3. Constituent Elements / Normative Content
N. 8 Competent authority (para. 1). The interview is conducted by the bar examination commission of the canton in whose register the applicant wishes to be enrolled. Cantonal jurisdiction is linked to the desired registration canton — not to the canton in which the EU/EFTA lawyers list (→ Art. 28 BGFA) is maintained, although in practice both cantons will typically be identical. Where different cantons are involved, the applicant's choice of registration canton also determines, indirectly, the commission with jurisdiction over the interview. Art. 32 para. 1 thus connects with Art. 6 para. 1 BGFA, which provides that lawyers shall register in the canton where they have their business address.
N. 9 Basis for assessment (para. 2). The commission relies in particular on the information and documents submitted by the applicant concerning the activities performed in Switzerland. The term «in particular» makes clear that the provision contains a non-exhaustive list; the commission may draw on additional sources of information. Practically relevant items include lists of mandates, records of court pleadings, evidence of work on Swiss legal issues, and certificates from law firms. Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 988, emphasise that the documents submitted serve as the basis for the interview and that exhaustive documentation of every mandate must not be demanded.
N. 10 Subject matter of the assessment (para. 3). The commission takes into account the applicant's knowledge of and professional experience in Swiss law, as well as participation in courses and seminars on Swiss law. The interview is not an examination with a pass or fail grade in the technical sense; it serves to verify an adequate foundation of knowledge. Fellmann, Anwaltsrecht, 2nd ed. 2017, N. 271, emphasises that the interview should be tailored to the individual knowledge gaps identified and must not be conducted as a structured examination following a predetermined catalogue.
N. 11 Demarcation from the aptitude test (Art. 31 BGFA). The aptitude test under Art. 31 BGFA is available to EU/EFTA lawyers who have not (yet) been registered in the EU/EFTA lawyers list for three years. The interview under Art. 32 presupposes the three-year prior registration but applies a less demanding standard: not abstract legal knowledge, but the picture of the Swiss legal practice actually performed, takes centre stage. Nater/Tuchschmid, Die internationale Freizügigkeit nach dem BGFA, in: Thürer/Weber/Portmann/Kellerhals (eds.), Bilaterale Verträge I & II Schweiz–EU, 2007, p. 325, speak of an «individualised verification» as distinct from the standardised aptitude test.
#4. Legal Consequences
N. 12 The interview is not independently enforceable — it is not an end in itself but an intermediate step in the procedure for registration in the cantonal register of lawyers. If the interview establishes that the applicant possesses sufficient knowledge of and professional experience in Swiss law, the substantive precondition of Art. 30 para. 1 lit. b BGFA is satisfied; the supervisory authority must then — together with the other requirements (Art. 8 BGFA) — proceed to register the applicant in the cantonal register of lawyers.
N. 13 Upon registration in the cantonal register of lawyers pursuant to Art. 30 BGFA, EU/EFTA lawyers are fully assimilated with holders of a cantonal law licence (Art. 30 para. 2 BGFA). They may henceforth use the professional title corresponding to the registration canton (Art. 33 BGFA) and are subject to the full disciplinary supervision of the BGFA (→ Art. 12–20 BGFA). The restriction to the home-State professional title under Art. 24 in conjunction with Art. 27 para. 2 BGFA thereby falls away.
N. 14 If the interview has a negative outcome, the applicant may pursue legal remedies under the applicable cantonal administrative procedure law; the decision of the supervisory authority on registration is subject to a public-law appeal to the Federal Court (Art. 82 lit. a BGG). → Art. 9 BGFA; Art. 17 BGFA.
#5. Disputed Issues
N. 15 Legal character of the interview. In legal scholarship, it is disputed whether the interview under Art. 32 BGFA is to be characterised as an (informal) competence verification or as a genuine examination with a pass or fail character. Fellmann, Anwaltsrecht, 2nd ed. 2017, N. 271, and Nater/Tuchschmid, loc. cit., p. 325, take the view that the interview does not constitute an examination in the strict sense; the commission is to form an overall picture, not to conduct an examination. By contrast, Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 988 f., point out that the commission nonetheless makes a fact-based assessment that is subject to legal challenge and therefore operates materially as an examination decision. The practical consequence of this controversy concerns the standard of judicial review: are errors of discretion also subject to review as to substantive defensibility (so Bohnet/Martenet), or does the commission enjoy broad discretion analogous to the correction of an examination (so Fellmann)?
N. 16 Duty to provide evidence and burden of proof. A further controversy concerns the allocation of the burden of proof. Nater/Tuchschmid, loc. cit., p. 325, proceed on the basis that the applicant bears the burden of proving his or her Swiss professional practice. Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 988, by contrast, require that the commission actively tailor the interview to the individually documented activities and must not demand exhaustive mandate documentation. This dispute is of particular relevance to lawyers who were registered in the EU/EFTA lawyers list but worked predominantly for foreign clients on matters of Swiss law without being able to document this comprehensively. The Message (BBl 1999 6013, 6058) provides no conclusive answer on this point.
N. 17 Relationship to Art. 3 para. 1 BGFA and cantonal autonomy. The bar examination commissions are cantonal authorities; Art. 32 BGFA makes no detailed provision regarding the composition, procedure, or duration of the interview. This gives rise to cantonal latitude that may lead to different interview formats from canton to canton. Fellmann, Anwaltsrecht, 2nd ed. 2017, N. 272, regards this as problematic, because the effective assimilation under Art. 30 para. 2 BGFA depends on a procedure that is factually non-harmonised. Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 990, view this as an appropriate expression of Art. 3 BGFA. Supreme court clarification of this question is still pending.
#6. Practical Notes
N. 18 Preparation for the interview. Applicants should compile structured documentation of their Swiss legal activities at an early stage: lists of mandates by area of law, evidence of participation in continuing legal education events (courses, seminars), records of court pleadings, and arbitral awards in Swiss law proceedings. Under Art. 32 para. 2 BGFA, these documents form the principal basis for the interview. Fellmann, Anwaltsrecht, 2nd ed. 2017, N. 271, recommends commencing the documentation already upon registration in the EU/EFTA lawyers list under Art. 28 BGFA.
N. 19 Compliance with time limits. The interview forms part of the application for registration under Art. 30 para. 1 lit. b BGFA; the application may only be submitted after the three-year minimum period in the EU/EFTA lawyers list (→ Art. 28 BGFA). A person wishing to shorten the three-year period must fully demonstrate effective and regular practice in Swiss law — failing which the interview under Art. 32 is mandatory. The period runs from the date of registration in the EU/EFTA lawyers list; any interruptions of registration (e.g. as a result of withdrawal and re-registration) must be carefully documented.
N. 20 Choice of cantonal jurisdiction. Since the commission of the desired registration canton has jurisdiction (Art. 32 para. 1 BGFA) and cantonal procedural rules vary, the choice of registration canton may have practical consequences for the conduct and intensity of the interview. Applicants who could have a business address in more than one canton should compare the cantonal implementing rules. → Art. 6 para. 1 BGFA; → Art. 3 para. 1 BGFA.
N. 21 Relationship to Art. 30 para. 1 lit. a BGFA (aptitude test). A person who considers the three-year waiting period too long, or who is unable to document his or her Swiss legal practice comprehensively, may sit the aptitude test under Art. 31 BGFA before the expiry of the three years (BGE 151 II 640 E. 4.2.3; judgment 2A.536/2003 of 9 August 2004 E. 3.2.3). The aptitude test and the interview under Art. 32 are strictly mutually exclusive; an applicant cannot secure both options. The decision between the two pathways should be made on the basis of a realistic assessment of one's own state of knowledge.
Cross-references: ↔ Art. 30 BGFA (substantive basis for registration in the cantonal register) ↔ Art. 31 BGFA (aptitude test as alternative) → Art. 27–28 BGFA (sustained professional practice under home-State title; EU/EFTA lawyers list) → Art. 33 BGFA (professional title following registration) → Art. 3 para. 1 BGFA (cantonal jurisdiction for requirements for obtaining the law licence) → Art. 7–8 BGFA (professional and personal requirements for registration) ↔ Directive 89/48/EEC / Directive 2005/36/EC (EU law; implementing basis) ↔ AFMP Annex III (reference to the Services and Establishment Directive)
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