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Art. 35 BGFA — Referendum
#Doctrine
#1. Legislative History
N. 1 Art. 35 BGFA subjects the Federal Act on the Freedom of Movement for Lawyers to the optional referendum pursuant to Art. 141 para. 1 lit. a FC. The Federal Council's dispatch of 28 April 1999 (BBl 1999 6013) addressed the referendum and entry into force jointly in a single article, designated «Art. 34» in the draft bill at that time (BBl 1999 6059). In the course of the parliamentary deliberations, the structure of the Act was adjusted: a standalone procedural provision was inserted as Art. 34, thereby shifting the referendum clause to Art. 35. This editorial renumbering does not reflect any substantive change; the entry-into-force provision, which in the dispatch had still been part of «Art. 34», was moved in the enacted Act into the Federal Council's commencement order. The Act was adopted by the Federal Assembly in the final vote on 23 June 2000 (AS 2002 823).
N. 2 The referendum was not called. The Federal Council brought the BGFA into force by order of 14 November 2001 on 1 June 2002 (AS 2002 823). The EU/EFTA provisions (Art. 21–34a BGFA) entered into force at a later date, in accordance with the temporal scope of the Agreement on the Free Movement of Persons (AFMP, SR 0.142.112.681).
#2. Systematic Classification
N. 3 Art. 35 BGFA stands as the final provision of the Act and, together with → Art. 32 BGFA (transitional provisions EU/EFTA), → Art. 33 BGFA (professional title) and → Art. 34 BGFA (procedure), forms the concluding part of the Act. Unlike those substantive final provisions, Art. 35 BGFA has an exclusively constitutional-procedural function: it brings the Act within the scope of Art. 141 para. 1 lit. a FC and thereby affirms its democratic legitimacy through optional popular participation. Following the expiry of the referendum period without a popular initiative and the entry into force of the Act on 1 June 2002, Art. 35 BGFA no longer produces any operative effect.
N. 4 The constitutional anchor is Art. 141 para. 1 lit. a FC, which subjects federal acts in general to the optional referendum. Art. 35 BGFA is therefore declaratory in nature — it reiterates a constitutional consequence that would have arisen independently of its presence (Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 2993). The explicit inclusion of a referendum clause in final provisions is consistent with the Federal Council's legislative drafting technique and serves to make the scope of the enactment clear to those subject to the norm (Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1761).
#3. Elements of the Provision / Normative Content
N. 5 Art. 35 BGFA consists of a single sentence subjecting the Act to the optional referendum. The provision presupposes that the BGFA constitutes a «federal act» within the meaning of Art. 141 para. 1 lit. a FC — which is undisputed (Häfelin/Haller/Keller/Thurnherr, op. cit., N. 1758 f.). The optional referendum entitles 50,000 persons entitled to vote or eight cantons to request a popular vote within 100 days of the official publication of the enactment (Art. 141 para. 1 FC). This period expired without a referendum following the final vote of 23 June 2000.
N. 6 The question of whether the BGFA should have been declared urgent (Art. 165 FC) was not seriously considered either in the dispatch or in the parliamentary debates. The Act went through the ordinary legislative procedure. The combination of an interim solution in cantonal law with the phased entry into force of the BGFA provided sufficient time for the adaptation of cantonal register structures (BBl 1999 6059).
#4. Legal Consequences
N. 7 Upon the unused expiry of the referendum period following publication of the BGFA in the Federal Gazette, the Act acquired legal force on 1 June 2002 (AS 2002 823). Art. 35 BGFA is thereby legally spent: it has fulfilled its constitutional-procedural function and has produced no further effects since then. For subsequent amendments to the Act — in particular the insertion of Art. 34a BGFA and other provisions on EU/EFTA lawyers — the respective amending decrees apply, each with their own referendum clauses.
#5. Contested Issues
N. 8 Declaratory versus constitutive effect of the referendum clause: Constitutional scholarship is divided on whether a referendum clause in a federal act has constitutive or merely declaratory significance. Rhinow/Schefer/Uebersax (Schweizerisches Verfassungsrecht, 3rd ed. 2016, N. 2993) represent the prevailing view that federal acts are always subject to the optional referendum by virtue of Art. 141 para. 1 lit. a FC, regardless of any statutory referendum clause. The explicit clause is therefore declaratory. Häfelin/Haller/Keller/Thurnherr (Schweizerisches Bundesstaatsrecht, 10th ed. 2020, N. 1761) regard this as a matter of legislative drafting technique: the Federal Council maintains the practice of including an explicit clause in order to avoid ambiguity in the case of mixed enactments (acts containing treaty-law elements). For the BGFA, this controversy has no practical consequences, since the Act is categorised as a purely domestic federal act.
N. 9 Separate entry into force of the EU/EFTA provisions: The separate commencement of Art. 21–34a BGFA (EU/EFTA provisions) raises the constitutional question of whether a single referendum vote on the Act as a whole provides adequate democratic oversight of the EU/EFTA parts when these enter into force only at a later date. Bohnet/Martenet (Droit de la profession d'avocat, 2009, N. 52) note that the EU/EFTA provisions essentially implement the AFMP and EU Directives 77/249/EEC and 98/5/EC, which were themselves subject to the referendum on the AFMP. The referendum opportunity afforded by Art. 35 BGFA thus covered only the autonomously Swiss regulatory content of the BGFA. Fellmann (Anwaltsrecht, 2nd ed. 2017, N. 6) concurs with this assessment without drawing any constitutional consequences from it.
#6. Practical Notes
N. 10 Art. 35 BGFA has no practical significance for ongoing legal application following the entry into force of the Act on 1 June 2002. For questions of professional law, registration in the cantonal register, or disciplinary proceedings, only the substantive provisions (Art. 1–34a BGFA) are determinative. When commenting on subsequent amendments to the Act, reference should be made to the respective independent referendum clauses in the amending enactments, and not to Art. 35 BGFA.
Literature cited: Rhinow/Schefer/Uebersax, Schweizerisches Verfassungsrecht, 3rd ed. 2016; Häfelin/Haller/Keller/Thurnherr, Schweizerisches Bundesstaatsrecht, 10th ed. 2020; Bohnet/Martenet, Droit de la profession d'avocat, 2009; Fellmann, Anwaltsrecht, 2nd ed. 2017.
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