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Art. 34 BGFA — Procedure
#Doctrine
#1. Legislative History
N. 1 Art. 34 BGFA bears the marginal heading «Procedure» and contains a general framework of competences for all proceedings governed by the BGFA. The provision corresponds to the Federal Council's original draft; the parliamentary deliberations proceeded without material amendments (AB 1999 N 1569; AB 1999 S 1173). In the Dispatch of 28 April 1999, Art. 34 BGFA (at that time Art. 31 E-BGFA) is briefly justified as a consequence of the federalist design of the Act: «Procedure is governed by cantonal law. However, a judicial authority must decide as the last cantonal instance so that the federal administrative law appeal is available» (BBl 1999 6058 para. 234.3). The Federal Council thereby sought to ensure that the Federal Lawyers Act, despite regulating subject matter at the federal level, preserves cantonal procedural autonomy.
N. 2 Prior to the entry into force of the BGFA on 1 June 2002, the disciplinary law governing lawyers was regulated exclusively by cantonal law; the only federal law remedy was the constitutional complaint. With the BGFA, which comprehensively unified the rules of professional conduct (Art. 12 BGFA) and disciplinary law (Art. 17 ff. BGFA) at the federal level, the federal appeal (today: appeal on public law grounds pursuant to Art. 82 ff. BGG) was opened against final cantonal decisions — subject to the requirement under Art. 34 para. 1 BGFA in conjunction with Art. 98a aOG (today: Art. 86 para. 2 BGG) that a judicial authority must act as the last cantonal instance (BGE 129 II 297 E. 1.1).
N. 3 The scope of application of Art. 34 BGFA encompasses all proceedings under the BGFA: entry in the register (Art. 6–9 BGFA), the EU/EFTA lawyers list (Art. 27–29 BGFA), entry in the register for EU/EFTA lawyers (Art. 30–34 BGFA), and disciplinary proceedings (Art. 15–20 BGFA). The Dispatch expressly states that Art. 34 BGFA applies as a common framework provision for all types of proceedings under the Act (BBl 1999 6058). With the amendment to the BGFA of 19 March 2021 (AS 2022 406, in force since 1 January 2023), Art. 34a BGFA was inserted, setting out specific requirements for the aptitude test and the interview on professional qualifications; the general procedural provision in Art. 34 BGFA remained unchanged.
#2. Systematic Classification
N. 4 Art. 34 BGFA appears at the end of Section 5 of the BGFA («Permanent pursuit of the legal profession in Switzerland by EU/EFTA lawyers under the professional title of the home State and entry in the cantonal lawyers register», Art. 27–34 BGFA). In terms of its substance, however, Art. 34 BGFA is a cross-cutting provision: by virtue of the express references in case law, it applies to all proceedings under the BGFA, not only to the EU/EFTA proceedings in Section 5 (cf. BGE 129 II 297 E. 1.1; judgment 2A.98/2004 of 7.7.2004 E. 1.2; judgment 2A.600/2003 of 11.8.2004 E. 1.1; judgment 2C_133/2012 of 18.6.2012 E. 5.3; judgment 2C_430/2013 of 22.7.2013 E. 2.1).
N. 5 Systematically, Art. 34 BGFA corresponds to Art. 3 BGFA (cantonal lawyers acts, reservation of cantonal law). Both provisions attest to the fundamental federalist principle of the BGFA: the Confederation establishes the substantive law of the profession, while the cantons shape organisation and procedure. This principle has remained unchanged following the entry into force of the BGG (1 January 2007); Art. 86 para. 2 BGG carries forward the requirement of a judicial last cantonal instance (cf. Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 276).
N. 6 Art. 34 BGFA supplements the substantive provisions on:
- Entry in the register (Art. 6 BGFA) and deletion (Art. 9 BGFA)
- Supervision (Art. 14 BGFA) and disciplinary proceedings (Art. 15 f. BGFA)
- Disciplinary measures (Art. 17 BGFA)
- EU/EFTA list entry (Art. 28 BGFA) and register entry (Art. 30 BGFA)
- Aptitude test (Art. 31 BGFA) and interview (Art. 32 BGFA)
The design of proceedings for all these matters falls to the cantons within the framework of Art. 34 BGFA.
↔ Art. 3 BGFA (reservation of cantonal law; federalist basic structure) → Art. 6 BGFA (entry in the register; procedure governed by cantonal law) → Art. 14 BGFA (supervision; organisation governed by cantonal law) → Art. 15 f. BGFA (disciplinary proceedings; conduct governed by cantonal law) → Art. 34a BGFA (specific requirements for the aptitude test and interview) → Art. 86 para. 2 BGG (judicial last instance as a condition for an appeal to the Federal Supreme Court)
#3. Content of the Provision
3.1 Cantonal Procedural Autonomy (para. 1, first clause)
N. 7 Art. 34 para. 1 sentence 1 BGFA provides that the cantons regulate procedure. This is a general delegation provision: it entrusts the design of all proceedings under the BGFA to cantonal law, to the extent that federal law does not provide otherwise. The cantons therefore enact cantonal implementing acts for the BGFA (EG BGFA) or adapt their existing lawyers acts accordingly. Procedural rules differ considerably from canton to canton (cf. Bohnet/Martenet, Droit de la profession d'avocat, 2009, para. 2124 ff.; Nater/Zindel, Kommentar zum Anwaltsgesetz, 2020, N. 3 on Art. 34).
N. 8 Cantonal procedural autonomy means in particular:
(a) Organisation of the supervisory authority: The cantons may entrust supervision to a lawyers commission, a bar association, the cantonal court of appeal, or another authority. They may appoint bodies with a professional composition, provided that an appeal to a judicial authority lies against their decisions (BGE 126 I 228 E. 3; judgment 2A.98/2004 E. 3.5.2).
(b) Procedural rules: The cantons determine time limits, scope of review, party status of the complainant, the right to inspect the file, and the public nature of hearings. In a matter regulated by cantonal law — such as the notification of a decision to the complainant — the Federal Supreme Court's scope of review is limited to arbitrariness (judgment 2C_133/2012 E. 5.3).
(c) Appellate structure: The cantons determine which authority decides at first instance and which serves as the appellate instance; they may designate the cantonal court of appeal, the administrative court, or another judicial authority as the last cantonal instance (judgment 2A.98/2004 E. 2.3).
(d) Costs: Whether procedural costs may be imposed on the complainant and on what basis is governed by cantonal law. The imposition of costs on the complainant is permissible where there is a cantonal statutory basis (BGE 129 II 297 E. 2.2.1).
N. 9 The BGFA itself contains minimal federal law requirements that take precedence over cantonal procedural law. These include in particular: the right to be heard under Art. 29 para. 2 FC and the right to a fair trial under Art. 6 ECHR (to the extent applicable). The applicability of Art. 6 para. 1 ECHR to disciplinary proceedings against lawyers must be assessed in a nuanced manner: for more serious sanctions (prohibition on practising), the Federal Supreme Court affirms the existence of «civil rights» within the meaning of Art. 6 ECHR and the right to a public oral hearing (judgment St. Gallen BR.2006.1 of 7.9.2006; cf. Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 277). For mere fines or reprimands, Art. 6 ECHR does not apply (BGE 128 I 346; judgment 2A.545/2003 E. 2.2).
3.2 Judicial Last Cantonal Instance (para. 1, second clause)
N. 10 Art. 34 para. 1 BGFA contains implicitly — through its systematic connection with Federal Supreme Court case law — the requirement that a judicial authority must decide as the last cantonal instance. The Federal Council expressly justified this in the Dispatch: only in this way can the federal administrative law appeal (today: appeal on public law grounds under Art. 82 ff. BGG) be brought against the final cantonal decision (BBl 1999 6058; BGE 129 II 297 E. 1.1). Following the entry into force of the BGG, this requirement is now codified in Art. 86 para. 2 BGG: in public law matters, the immediate lower courts of the Federal Supreme Court must be the supreme cantonal courts.
N. 11 The requirement of a judicial last instance does not mean that the entire cantonal procedural structure must be judicial in nature. First-instance administrative and supervisory authorities (supervisory commissions, bar associations) are permissible under federal law, provided that an appeal to a judicial authority (cantonal court of appeal, administrative court, cantonal court) lies against their decisions (BGE 126 I 228 E. 3; judgment 2A.98/2004 E. 3.5.2; judgment 2A.600/2003 E. 1.1).
N. 12 The Federal Supreme Court has clarified that the regulation of procedure remains a matter for the cantons (Art. 34 para. 1 BGFA), including the rules on recusal of members of cantonal supervisory authorities; procedural objections in this regard may be examined before the Federal Supreme Court only from the standpoint of arbitrariness (Art. 9 FC) and any specific constitutional rights invoked (judgment 2A.545/2003 E. 1.3).
3.3 Relationship between Cantonal and Federal Law
N. 13 The BGFA exhaustively regulates the substantive law of the profession (rules of professional conduct, disciplinary measures); with respect to procedure, the cantons retain regulatory autonomy. This division has been precisely elaborated in the case law: Art. 17 BGFA (disciplinary measures) contains no procedural provisions whatsoever — procedural questions fall exclusively within the cantonal competence under Art. 34 para. 1 BGFA (judgment 2C_133/2012 E. 5.3.2). Cantonal procedural norms — for example concerning the composition of appellate chambers, the notification of decisions to third parties, or the allocation of costs — are therefore subject to review only for arbitrariness, not for conformity with federal law.
N. 14 The BGFA sets limits on cantonal procedural law where federal constitutional law or international law is directly applicable. Thus Art. 29 FC (right to be heard, right to a fair trial) must be fully observed in cantonal lawyers' disciplinary proceedings as well. The federal law minimum requirements may be summarised as follows: (1) the last cantonal instance must be a court (Art. 86 para. 2 BGG; Art. 34 BGFA); (2) in cases of severe sanctions, Art. 6 ECHR applies (public hearing); (3) the fundamental procedural guarantees under Art. 29 FC must always be observed.
#4. Legal Consequences
N. 15 If a finally-decided cantonal decision violates the BGFA (substantive federal law), it may be challenged by way of an appeal on public law grounds before the Federal Supreme Court (Art. 82 lit. a in conjunction with Art. 86 para. 1 lit. d BGG). The Federal Supreme Court reviews violations of federal law with full cognition (Art. 95 lit. a BGG). By contrast, violations of cantonal procedural law may only be raised as complaints of arbitrariness (Art. 9 FC).
N. 16 If the challenged decision — despite the applicability of the BGFA — is rendered by a non-judicial authority as the last cantonal instance, the federally required lower court is absent; the Federal Supreme Court does not enter upon the appeal (Art. 86 para. 2 BGG). It is therefore mandatory under federal law for the cantons to provide an appellate route to a judicial authority. Cantons that have structured their implementing legislation accordingly (e.g. ZH: Administrative Commission of the Court of Appeal; LU: First Chamber of the Court of Appeal; SG: Cantonal Court; SH: Court of Appeal) satisfy this requirement (cf. BGE 129 II 297 E. 1.1; judgment 2A.98/2004 E. 2.3; judgment 2C_133/2012 E. 5.3).
N. 17 If a cantonal supervisory authority violates the federally required principle of judicial independence (Art. 30 para. 1 FC) through the composition of the appellate instance, this may be raised as a violation of federal law. However, mere collegiality among judges of the same cantonal court of appeal — without concrete personal bias in the individual case — does not constitute a federally relevant lack of independence (judgment 2A.98/2004 E. 3.5.2; judgment 2C_133/2012 E. 3).
#5. Contested Issues
5.1 Party Status of the Complainant in Disciplinary Proceedings
N. 18 Cantonal laws diverge on the question of whether the complainant is accorded party status in disciplinary proceedings. Nater/Zindel (Kommentar zum Anwaltsgesetz, 2020, N. 5 on Art. 34 BGFA) take the view that the BGFA leaves the design of party status entirely to cantonal law, so that both the model without party status (e.g. ZH) and the model with limited participation of the complainant are permissible under federal law. Fellmann (Anwaltsrecht, 2nd ed. 2017, para. 278) regards this divergence as a procedural inconsistency that, in light of the federal unification of substantive law, must be assessed as a legal-policy deficit of the BGFA.
N. 19 The Federal Supreme Court has recognised the absence of party status for the complainant in disciplinary proceedings as permissible under federal law: since disciplinary supervision serves the public interest, the complainant has no legally protected interest in the disciplining of the lawyer (BGE 129 II 297 E. 2.1 and 3.1). Nevertheless, the complainant retains the right to raise complaints regarding procedural rights to the extent that cantonal procedural law grants them participant status (cf. judgment 2C_133/2012 E. 5.3.1 f.). The notification of the decision to the complainant was qualified by the Federal Supreme Court as not required by federal law, but as permissible under cantonal law (judgment 2C_133/2012 E. 5.3.2).
5.2 Applicability of Art. 6 ECHR to Disciplinary Proceedings
N. 20 It is contested whether, and from what level of severity of sanction, Art. 6 para. 1 ECHR (right to a fair trial) applies in lawyers' disciplinary proceedings. The Federal Supreme Court denies applicability in proceedings involving fines and minor reprimands (BGE 128 I 346; judgment 2A.545/2003 E. 2.2). For time-limited prohibitions on practising, Art. 6 ECHR applies under the heading of «civil rights» (judgment SG BR.2006.1 of 7.9.2006). Bohnet/Martenet (Droit de la profession d'avocat, 2009, para. 2130) and Fellmann (Anwaltsrecht, 2nd ed. 2017, para. 277) favour the application of Art. 6 ECHR from the point at which a time-limited prohibition on practising is imposed, since this constitutes a severe impairment of economic activity. Nater/Zindel (Kommentar zum Anwaltsgesetz, 2020, N. 7 on Art. 34 BGFA) follow the Federal Supreme Court's practice, according to which disciplinary fines in the range provided for by the BGFA are not regarded as criminal sanctions within the meaning of the ECHR.
5.3 Transitional Law: Appellate Route for Pre-existing Factual Situations
N. 21 For factual situations that arose before the BGFA entered into force on 1 June 2002, but which were assessed under the new law, the correct appellate route at the federal level was initially disputed. The Federal Supreme Court initially left the question open in a series of decisions (BGE 129 II 297 E. 1.2; judgment 2A.545/2003 E. 1.2 f.), before resolving it in principle in judgment 2A.459/2003 of 18.6.2004 (= BGE 130 II 270): where the cantonal decision — rightly or wrongly — relied or had to rely on federal law, the administrative law appeal is the correct remedy, even where the underlying facts lie within the scope of the previous law. In practice, this question is now of diminishing significance, as no transitional constellations remain pending.
#6. Practical Notes
N. 22 Cantonal implementing acts: In practice, it must always be established first which cantonal EG BGFA or cantonal lawyers act is applicable. The cantonal rules differ considerably in terms of organisation (first-instance supervisory authority), procedural rules (party status, access to the file, public hearings), and appellate routes. In general, in most cantons, appeals against first-instance decisions of supervisory authorities must be directed to the superior cantonal courts (cantonal court of appeal, administrative court, cantonal court).
N. 23 Federal law minimum threshold: Irrespective of the applicable cantonal procedural law, the following federal law mandatory minimum requirements apply: (1) a judicial authority must decide as the last cantonal instance (Art. 86 para. 2 BGG in conjunction with Art. 34 BGFA); (2) the right to be heard under Art. 29 para. 2 FC must be guaranteed; (3) for severe sanctions (at minimum a time-limited prohibition on practising), Art. 6 para. 1 ECHR applies with its entitlement to a public oral hearing. A failure to observe any one of these guarantees constitutes a cognisable violation of federal law.
N. 24 Complaint strategy: Since the BGFA exhaustively regulates the substantive law of the profession, any violation of Art. 12–20 BGFA may be raised before the Federal Supreme Court as a violation of federal law (Art. 95 lit. a BGG) with full cognition. Procedural matters, by contrast, are subject to restricted cognition — since they are left to cantonal law — and may only be raised before the Federal Supreme Court as violations of constitutional law (in particular Art. 9, 29, 30 FC; Art. 6 ECHR) (Art. 106 para. 2 BGG), provided that the relevant complaints are adequately substantiated.
N. 25 Demarcation: cantonal procedural norms as subsidiary law. If a cantonal EG BGFA declares provisions of a federal act — e.g. the Code of Criminal Procedure — to be applicable, these provisions apply as subsidiary cantonal law; the Federal Supreme Court reviews their application only for arbitrariness (judgment 2C_430/2013 E. 3 with reference to judgment 1C_467/2013). In particular, disciplinary proceedings structured along the lines of criminal procedure must be strictly distinguished from register proceedings (deletion under Art. 9 BGFA): the latter are not disciplinary proceedings but an administrative measure, to which the guarantees of criminal procedure cannot simply be transferred (BGE 137 II 425 E. 7.2; judgment 2C_430/2013 E. 3).
N. 26 Review of the composition of the cantonal appellate instance. Challenges to the composition of appellate chambers (e.g. on grounds of collegiality with members of the first-instance supervisory authority) are successful under consistent case law only where there are concrete, objectively comprehensible grounds for doubt as to impartiality in the individual case. Mere collegiality among judges of the same cantonal court of appeal does not suffice (judgment 2A.98/2004 E. 3.5.2; judgment 2C_133/2012 E. 3). A party seeking the recusal of a member of the appellate instance must substantiate concrete, personal grounds for bias (Art. 106 para. 2 BGG).
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