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Art. 34a BGFA — International Treaties
#Doctrine
#1. Legislative History
N. 1 The BGFA of 23 June 2000 (SR 935.61), which entered into force on 1 June 2002 (BBl 1999 6013), did not in its original version contain any authority to conclude treaties on the recognition of foreign professional titles of lawyers from third states. Arts. 21–34 BGFA (Sections 4–6) regulated exclusively the freedom of movement of nationals of EU and EFTA member states in implementation of the Agreement on the Free Movement of Persons of 21 June 1999 (AFMP, SR 0.142.112.681) and the relevant EU Directives (Dir. 77/249/EEC; Dir. 89/48/EEC; Dir. 98/5/EC; cf. BGE 151 II 640 cons. 4.3). An extension to third states had been deliberately left open by the legislature of 2000.
N. 2 Art. 34a BGFA was inserted by the Federal Act of 20 March 2015 on Continuing Education and Training (CETA, SR 419.1) as a consequential amendment (AS 2016 689, 708) and entered into force on 1 January 2017. The CETA was primarily aimed at regulating occupation-oriented continuing education and training, but contained an extensive catalogue of consequential amendments to existing professional statutes. As part of this harmonisation, the Federal Council was granted authority under Art. 34a BGFA to conclude international treaties on the recognition of foreign professional titles from third states within the scope of application of the BGFA, and to enact implementing provisions. The Message on the CETA (BBl 2013 3729) described this step as an instrument for opening up the freedom of movement of lawyers to Switzerland's important trading partners, notably in the context of bilateral economic partnership negotiations, without undermining the existing standards of the BGFA. In the National Council and in the Council of States, the insertion of Art. 34a was adopted without significant controversy; the committees emphasised that the provision does not produce any immediate liberalisation, but merely establishes the Federal Council's authority to conclude treaties.
N. 3 Compared with the original BGFA Message of 1999 (BBl 1999 6013), Art. 34a represents a systematic extension of the legislative concept: whereas the 1999 Message had left the third-state question to the Federal Council's bilateral treaty policy without a specific statutory basis, Art. 34a now creates an explicit legal basis for corresponding international treaties within the overall framework of the BGFA. This corresponds to the constitutional requirement of a basis in formal legislation for interferences with economic freedom (Art. 94 FC) and to the obligation of the Federal Council to issue important legislative provisions in the form of federal acts (Art. 164 FC; cf. Art. 7a GAOA for general treaty-making powers).
#2. Systematic Classification
N. 4 Art. 34a BGFA forms the conclusion of Section 6 (Arts. 30–34a) «Entry in the Cantonal Register of Lawyers» and at the same time the final article of the entire EU/EFTA part (Arts. 21–34a) of the BGFA. Systematically, it is closely connected with:
- → Arts. 21–26 BGFA (free movement of services for EU/EFTA lawyers)
- → Arts. 27–29 BGFA (permanent practice under the original professional title)
- → Arts. 30–34 BGFA (entry in the cantonal register of lawyers)
- ↔ Art. 25 BGFA (professional rules, to which para. 2 lit. a expressly refers)
N. 5 Art. 34a establishes a special power of the Federal Council to conclude international treaties with third states in the field of the law governing the legal profession. This power operates as lex specialis in relation to the Federal Council's general representative authority (Art. 184 para. 1 FC in conjunction with Art. 7a GAOA): whereas Art. 7a GAOA establishes a general treaty-making power of the executive, Art. 34a BGFA presupposes substantive minimum conditions (para. 2) and an explicit basis in a federal act for treaties in this particularly profession-specific area of regulation. The systematic approach follows a pattern well-known in other professional statutes (cf. Art. 35 Vocational and Professional Education and Training Act; Art. 48 MedProfA for international agreements in the healthcare field).
N. 6 The relationship to Arts. 21–34 BGFA is asymmetric: Arts. 21–34 govern the legal position directly and mandatorily by virtue of the AFMP. Art. 34a, by contrast, merely authorises the Federal Council to conclude corresponding treaties; without an international treaty, the provision produces no direct effects for lawyers from third states. Neither registration in the register nor the rights to practise arising from Arts. 27–34 BGFA accrue directly to nationals of third states.
#3. Elements of the Provision / Normative Content
N. 7 Art. 34a para. 1 requires three constituent elements:
(a) «Within the scope of application of this Act»: The international treaty must relate to facts falling within the material scope of application of the BGFA (Art. 2 BGFA), i.e. to forensic activity as representation of parties before judicial authorities. The purely advisory activity of lawyers from third states (legal consulting) does not fall within the scope of the BGFA and is therefore not covered by Art. 34a.
(b) «International treaties»: The term encompasses all international agreements within the meaning of Art. 141 FC, thus both bilateral agreements with individual third states and multilateral treaties. In terms of content, the provision focuses on treaties concerning the recognition of foreign professional titles, not on the general recognition of educational qualifications. The distinction is material: the BGFA contains a list of professional titles in the Annex (cf. Art. 27 para. 1 BGFA); Art. 34a authorises the analogous extension to third-state titles.
(c) «Which entitle the holder to practise as a lawyer»: The recognised foreign professional title must confer entitlement to practise as a lawyer in the respective state of origin. The Federal Council may therefore not conclude treaties that merely recognise professional titles without a corresponding professional licence.
N. 8 Art. 34a para. 2 lays down substantive minimum conditions for the conclusion of such treaties. The Federal Council shall in particular ensure that:
Lit. a: Subjection to the professional rules of Art. 25 BGFA. Art. 25 BGFA (in conjunction with Art. 12 BGFA) contains the professional rules applicable to EU/EFTA lawyers. The subjection of lawyers from third states to these rules is mandatory: the Federal Council has no discretion to derogate from this. The wording «in particular» indicates that para. 2 is not exhaustive; further protective measures (e.g. professional liability insurance, professional secrecy) may and should also be agreed.
Lit. b: Entry in accordance with EU/EFTA principles. Entry in the cantonal register of lawyers must «be governed by the principles applicable to lawyers from EU or EFTA member states», i.e. by Arts. 30–34 BGFA. This ensures that the standard of equivalence is maintained: lawyers from third states may not be placed in a more favourable position than EU/EFTA lawyers. Whether they may be placed in a less favourable position (e.g. additional examination requirements) is left open in the statute and must be assessed in the context of the principle of proportionality and the relevant treaty negotiations.
N. 9 Art. 34a para. 3 grants the Federal Council the legislative power to implement the international treaties concluded. This delegation is limited in scope: the Federal Council may only enact «implementing provisions for the execution of these treaties», but may not introduce independent liberalisations without a treaty basis. Parliament retains control over the approval of treaties pursuant to Art. 166 para. 2 FC (obligation to obtain approval for important international treaties).
#4. Legal Consequences
N. 10 Art. 34a produces no direct legal effects for lawyers from third states. The provision is programmatic in nature: without the conclusion of an international treaty by the Federal Council, Arts. 21–34 BGFA remain reserved for EU/EFTA lawyers. Lawyers from third states (e.g. the USA, the United Kingdom, Japan) have no right to registration under the EU/EFTA rules as long as no corresponding international treaty exists.
N. 11 Once an international treaty has been concluded and approved, the same mechanisms as for EU/EFTA lawyers apply to the lawyers from third states covered by it, to the extent provided for in the treaty: in particular the right to entry in the cantonal list, subjection to professional supervision and professional secrecy, and — upon fulfilment of the conditions of Art. 30 BGFA — the possibility of entry in the cantonal register of lawyers under a simplified procedure.
N. 12 Disciplinary supervision follows the territorial principle: registered lawyers from third states are subject to the cantonal supervisory authorities (→ Arts. 17 et seq. BGFA). The applicability of Art. 25 BGFA (para. 2 lit. a) ensures that all professional rules — in particular independence, professional secrecy, and the prohibition of conflicts of interest — also apply to lawyers from third states.
N. 13 To date (as of 2025), the Federal Council has concluded no international treaty on the basis of Art. 34a BGFA. The provision is therefore in a state of legislative readiness. Negotiations in the context of free trade agreements (in particular with the United Kingdom following Brexit) could activate Art. 34a, insofar as these cover services chapters involving the law governing the legal profession.
#5. Contested Issues
N. 14 Relationship to Art. 7a GAOA (treaty-making power of the Federal Council): It is disputed whether Art. 34a BGFA constitutes a necessary or merely declaratory basis for the conclusion of international treaties in the field of the law governing the legal profession. One view could maintain that the Federal Council is already empowered under Art. 184 para. 1 FC in conjunction with Art. 7a GAOA to conclude such treaties without Art. 34a. The opposing view, which is to be preferred here, regards Art. 34a as lex specialis in relation to Art. 7a GAOA: since international treaties on the recognition of lawyers' professional titles affect the lawyers' monopoly and thus economic freedom (Art. 27 FC), a sector-specific enabling provision in a federal act is required. Fellmann (Anwaltsrecht, 2nd ed. 2017, N. 190 f.) underlines the importance of such a basis in formal legislation for interferences with professional freedom. Bohnet/Martenet (Droit de la profession d'avocat, 2009, N. 1065) note that recognition arrangements in the legal field structurally require a parliamentary basis. Art. 34a BGFA satisfies this requirement and is therefore to be qualified as the necessary (not merely declaratory) basis for treaties with third states.
N. 15 Meaning of the term «principles» in para. 2 lit. b: Whether the reference to the «principles» of the EU/EFTA registration regime means full equality of treatment or merely a value-based alignment is an open question in the literature. Günthardt (Switzerland and the European Union: The Implications of the Institutional Framework and the Right of Free Movement for the Mutual Recognition of Professional Qualifications, 2021, p. 393 f.) emphasises that the conditions for registration under Art. 28 para. 2 BGFA were reduced to a minimum by BGE 151 II 640 cons. 5.7 (proof of qualification and intention to establish a practice). Whether treaties with third states concluded under Art. 34a must adopt this minimum threshold or may agree to stricter requirements is not explicitly regulated by statute. The wording («shall be governed by the principles») speaks more in favour of adopting the qualitative, but not necessarily the quantitative, elements of the EU/EFTA system. A different registration threshold (e.g. an aptitude test as the standard case) would be compatible with Art. 34a, provided it is proportionate and corresponds to the content of the treaty. This question has not yet been resolved by administrative practice or Federal Tribunal case law.
N. 16 GATS and most-favoured-nation treatment: Art. 34a BGFA must also be viewed in the light of Switzerland's obligations under the WTO General Agreement on Trade in Services (GATS, SR 0.632.20). Insofar as Switzerland has entered into specific commitments under the GATS framework for legal services (cf. «Mode 4» — freedom of movement of skilled persons), international treaties concluded under Art. 34a with GATS-compatible provisions may conflict with, or complement, one another. The most-favoured-nation principle (Art. II GATS) may require that concessions from treaties with third states also be extended to other WTO members. A definitive clarification is lacking in Swiss case law; the Federal Tribunal has not yet taken a clear position on the direct applicability of the GATS in professional law (cf. generally BGE 131 II 13 cons. 3.2 on the GATS issue in telecommunications law).
#6. Practical Notes
N. 17 Examination of existing treaty bases: Lawyers from third states and their Swiss law firms must first examine whether their state of origin has concluded an international treaty with Switzerland under Art. 34a BGFA. Since no such treaty exists to date, reliance on Art. 34a as a basis for registration is currently excluded. Nationals of third states must therefore satisfy the ordinary admission requirements under Art. 7 BGFA (cantonal bar licence, traineeship, examination) or, if they are simultaneously citizens of an EU/EFTA state, follow the route under Arts. 27 et seq. BGFA.
N. 18 Relevance of the VG ZH decision (VB.2016.00490): In this (cantonal) decision of 8 December 2016, the Administrative Court of Zurich held that, for entry in the EU/EFTA lawyers' list under Art. 28 BGFA, the decisive factor is the professional title under which the person seeking registration is entitled to practise in the EU member state — not where the qualification was originally acquired. This decision has neither binding effect for other cantons nor precedential significance at federal level; it does, however, illustrate vividly the practical demarcation question that Art. 34a is intended to resolve in the medium term: lawyers who have acquired their qualification outside the EU and had it recognised in an EU state fall under Art. 27 BGFA and not under Art. 34a. Art. 34a would only be relevant for persons whose qualification has not been recognised in any EU/EFTA state.
N. 19 Treaty policy recommendation: Law firms that employ or wish to engage lawyers from third states should monitor Switzerland's ongoing free trade negotiations (in particular with the United Kingdom, India, and the Gulf States). As soon as an agreement contains services chapters with a connection to the law governing the legal profession and is implemented on the basis of Art. 34a BGFA, registration opportunities may arise for such lawyers.
N. 20 Transitional law: Should the Federal Council conclude an international treaty under Art. 34a, the general principle applies to implementation by ordinance that the cantonal supervisory authorities must be prepared for the new lists and procedures. The ordinance-making power (para. 3) enables rapid, though not parliamentary-endorsed, regulation of the details. The cantons have no right of objection; the keeping of the register remains cantonal (→ Art. 28 para. 1 BGFA), but is prescribed by federal law.
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