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Art. 36 BGFA — Transitional Provision (Entry into Force)
#Doctrine
#1. Legislative History
N. 1 Art. 36 BGFA traces back to Art. 33 of the Federal Council's draft Lawyers Act of 28 April 1999. The Message (BBl 1999 6070 f.) explains the provision with a single concrete example: a lawyer who was able to obtain a cantonal practising certificate without having previously completed an internship of at least one year — i.e. a situation that exclusively concerns professional requirements. As a further example of application, the legislature had in mind Bernese «Fürsprecher» who had obtained their certificate under old law without having formally acquired a licence («Lizenziat») (Valloni/Steinegger, Bundesgesetz über die Freizügigkeit der Anwältinnen und Anwälte, 2002, p. 64 fn. 126). Both categories of cases concern solely the recognition of educational qualifications.
N. 2 The constitutional point of reference for the transitional provision is Art. 196 No. 5 FC (transitional provision relating to Art. 95 FC). This provision obliges the cantons to mutually recognise educational qualifications until federal legislation is enacted. Art. 95 para. 2 FC for its part safeguards the uniform Swiss economic area and the nationwide pursuit of a profession on the basis of recognised educational qualifications. By referring to Art. 196 No. 5 FC, the legislature signals that Art. 36 BGFA links exclusively to the certificate of competence — i.e. professional suitability — and not to the personal requirements under Art. 8 BGFA.
N. 3 The BGFA entered into force on 1 June 2002 (AS 2002 862). Lawyers already admitted under the previous cantonal law submitted numerous registration applications in the first months, in some cases relying exclusively on Art. 36 BGFA — in particular where they did not meet the new requirements of Art. 8 para. 1 lit. d BGFA (institutional independence) under the new law. This immediately gave rise to a wave of administrative court appeals, which prompted the Federal Supreme Court to issue its landmark judgment (BGE 130 II 87 of 29 January 2004).
#2. Systematic Classification
N. 4 Art. 36 BGFA constitutes the sole genuine transitional provision of the Act (Section 6). It bridges the gap between the old, purely cantonal law on lawyers and the new federal regulatory regime. Systematically, it supplements Art. 6–8 BGFA: whereas Art. 6–7 BGFA govern the ordinary professional requirements for registration, Art. 36 BGFA creates a time-limited relaxation of the professional requirements for holders of certificates obtained under old law. → Art. 7 BGFA (professional requirements); → Art. 8 BGFA (personal requirements); → Art. 6 BGFA (registration).
N. 5 The provision has largely exhausted its practical scope of application. Since the BGFA has now been in force for more than two decades, lawyers who obtained their practising certificate exclusively under old cantonal law without satisfying today's minimum professional requirements (completed degree, one-year internship; → Art. 7 BGFA) are hardly still in practice. New applications relying exclusively on Art. 36 BGFA are no longer to be expected. The provision is of legal-historical significance because the Federal Supreme Court used it to develop the fundamental principles governing the limits of transitional law in the field of lawyers' law.
#3. Elements of the Provision / Normative Content
N. 6 Art. 36 BGFA establishes a right to registration («shall be … registered») — not a discretionary clause. The supervisory authority may not reject a qualified applicant. The right is subject to two cumulative requirements:
- The applicant holds a practising certificate under the previous cantonal law (constituent element of the pre-existing certificate of competence).
- They would have been granted a licence to practise in the other cantons under Art. 196 No. 5 FC (hypothetical inter-cantonal criterion).
N. 7 The first constituent element — a practising certificate under the previous cantonal law — is a purely formal requirement. It is sufficient that a valid cantonal certificate of competence exists as of the date of entry into force of the BGFA (1 June 2002). Whether the certificate of competence could still be issued under current law, or whether the training regime has since been harmonised, is irrelevant.
N. 8 The second constituent element — hypothetical eligibility for authorisation under Art. 196 No. 5 FC — refers to the former inter-cantonal freedom of movement regime. The decisive question is whether the applicant could have been admitted in other cantons under the law applicable before 1 June 2002, not whether they were in fact admitted. The hypothetical criterion protects lawyers who, for formal reasons (differing cantonal training requirements), could have participated in inter-cantonal freedom of movement had the harmonisation requirement under Art. 196 No. 5 FC been fully implemented (BGE 130 II 87 E. 8.1 p. 108 f.).
N. 9 Crucially, Art. 36 BGFA exempts only from professional requirements under Art. 7 BGFA, not from the personal requirements under Art. 8 BGFA. The wording of the provision — in particular the reference to Art. 196 No. 5 FC and thereby to Art. 95 FC (recognition of educational qualifications) — makes this mandatory. The Federal Council cited exclusively examples of a professional nature in the Message (BBl 1999 6070 f.). The materials contain no clear indications supporting a different interpretation (BGE 130 II 87 E. 8.2 p. 109 f.; judgment 2A.295/2003 of 3.6.2004 E. 4.2; judgment 2A.126/2003 of 13.4.2004 E. 6.2).
N. 10 The personal requirements under Art. 8 para. 1 lit. a–c BGFA (legal capacity, no relevant entry in the criminal register, no certified losses) must be satisfied in all cases — this is undisputed in the legal literature (BGE 130 II 87 E. 8.2 p. 109). Particularly contested was the independence requirement under Art. 8 para. 1 lit. d BGFA (see N. 13–15 below).
#4. Legal Consequences
N. 11 If the constituent requirements of Art. 36 BGFA are satisfied and all personal requirements under Art. 8 BGFA are met, the supervisory authority must register the lawyer in the cantonal lawyers' register. Reliance on Art. 36 BGFA is, however, subsidiary: if a lawyer satisfies the ordinary requirements under Art. 6–8 BGFA, recourse to the transitional provision is unnecessary (BGE 130 II 87 E. 2.1 p. 90; judgment 2A.126/2003 E. 2).
N. 12 If the personal requirements are lacking — in particular independence under Art. 8 para. 1 lit. d BGFA — Art. 36 BGFA cannot establish a right to registration. There is no transitional acquired-rights guarantee for employed lawyers who would have been admitted under a more liberal cantonal law. The registration of a lawyer without proof of independence violates federal law, even if that lawyer was admitted under old cantonal law (BGE 130 II 87 E. 8.3 p. 110; judgment 2A.295/2003 E. 4.3).
#5. Disputed Questions
N. 13 The decisive disputed question concerns whether Art. 36 BGFA exempts employed lawyers from the obligation to satisfy the independence requirement under Art. 8 para. 1 lit. d BGFA, where they were admitted to practice under a liberal cantonal practice before 1 June 2002.
N. 14 Nater (Steiniger Weg zur Harmonisierung des Anwaltsrechts in der Schweiz, SJZ 98/2002, pp. 362 ff., 364) argued clearly that lawyers previously admitted on the basis of a liberal cantonal practice regarding employed lawyers were required to be registered under Art. 36 BGFA, even if they did not satisfy the more restrictive independence requirement under Art. 8 para. 1 lit. d BGFA. Meier (Bundesanwaltsgesetz: Probleme in der Praxis, Plädoyer 2000/5, pp. 30 ff., 40) tended in the same direction, though relying on a — as the Federal Supreme Court noted — overly liberal reading of prior Federal Supreme Court practice.
N. 15 The contrary view was taken by Hess (Umsetzung des BGFA durch die Kantone, SJZ 98/2002, pp. 485 ff., 493 f.), who considered it out of the question that employed lawyers who, by virtue of the presumption of independence expressed in Art. 8 para. 1 lit. d BGFA, are not regarded as independent, could obtain registration by way of transitional law. The Federal Supreme Court concurred with this view: the independence requirement had not been newly introduced by the BGFA but had already applied as a central prerequisite for the practice of the legal profession. Art. 36 BGFA did not permit the significance of that requirement to be undermined through transitional law (BGE 130 II 87 E. 8.2 p. 109 f.).
N. 16 At the same time, legal scholars disputed whether the Internal Market Act (BGBM; SR 943.02) could have conferred on employed lawyers from cantons with a liberal admission practice a right to registration in cantons with stricter practice, which was to have benefited them under Art. 36 BGFA. The Federal Supreme Court answered in the negative: the presumption of equivalence under the BGBM (→ Art. 4 BGBM) does not apply without restriction to personal requirements; a canton with stricter independence practice was also entitled to impose corresponding requirements vis-à-vis out-of-canton applicants, provided that the restriction applied equally to local practitioners and was indispensable for the protection of overriding public interests (consumer protection) (judgment 2A.295/2003 E. 4.2; → Art. 3 para. 1, para. 2 lit. c BGBM).
#6. Practical Notes
N. 17 Anyone wishing to invoke Art. 36 BGFA today bears the burden of proof for all constituent elements: the existence of a cantonal practising certificate under old law and hypothetical eligibility for authorisation in other cantons under the law applicable before 1 June 2002. Since the BGFA has been in force for more than two decades, applications relying on Art. 36 BGFA as an independent legal basis are no longer to be expected in practice.
N. 18 For employed lawyers whose employer is not registered in the register, Art. 36 BGFA is in no circumstances available as a transitional-law basis for registration, according to consistent Federal Supreme Court case law. Such lawyers must establish independence under Art. 8 para. 1 lit. d BGFA through the ordinary procedure — in particular by presenting an employment contract drafted accordingly, maintaining spatial separation of activities, and restricting mandates to matters outside the employer's field of activity (→ Art. 8 BGFA; → BGE 130 II 87 E. 5.2 and 6; judgment 2A.529/2004 of 9.3.2005 E. 2.1).
N. 19 For lawyers invoking Art. 36 BGFA, the following applies on a subsidiary basis: if they satisfy the ordinary requirements under Art. 6–8 BGFA — including in particular the personal requirements, among them independence — recourse to the transitional provision is unnecessary. The registration authority examines the ordinary law first; Art. 36 BGFA is only to be examined once it has been established that registration through the normal route is not possible (BGE 130 II 87 E. 2.1 p. 90).
N. 20 For the practice of cantonal supervisory authorities, this means: a lawyer registered pursuant to Art. 36 BGFA is not relieved of the obligation to continuously satisfy the personal requirements. If facts come to light after registration that cast doubt on independence, the supervisory authority may and must initiate deletion (→ Art. 9 BGFA). Art. 36 BGFA does not alter this ongoing supervisory duty.
#Cross-References
- ↔ Art. 7 BGFA (professional requirements — scope of exemption under Art. 36 BGFA)
- ↔ Art. 8 BGFA (personal requirements — not affected by Art. 36 BGFA)
- → Art. 6 BGFA (registration — procedure and legal consequence)
- → Art. 9 BGFA (deletion — where requirements subsequently cease to be met)
- → Art. 12 lit. b BGFA (independence as an ongoing professional duty)
- → Art. 196 No. 5 FC (constitutional anchoring of the transitional regime)
- → Art. 95 para. 2 FC (uniform economic area, pursuit of profession)
- → Art. 4 BGBM (presumption of equivalence for certificates of competence in the internal market)
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