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Art. 4 BGFA — Principle of Inter-Cantonal Freedom of Movement
#Doctrine
#1. Legislative History
N. 1 The Federal Act on Freedom of Movement for Lawyers (BGFA, SR 935.61) entered into force on 1 June 2002. It abolished the system of cantonal practising licences that had previously been in force, which required each canton to carry out an independent examination before admitting lawyers from other cantons. The Federal Council's dispatch of 28 April 1999 described this system as an obstacle to mobility and identified as its central objective: the creation of uniform federal freedom of movement by introducing cantonal lawyers' registers (BBl 1999 6013, p. 6033 f.).
N. 2 The dispatch explained the regulatory concept: by abolishing cantonal licensing procedures, the cantons would no longer hold documentation on lawyers from other cantons. It nonetheless had to remain possible to verify the conditions quickly. For that purpose, a uniform register structure in all cantons was necessary. After examination, the introduction of a central federal lawyers' register was rejected because it would have created duplication, entailed higher costs, and would have been unique in Europe (BBl 1999 6013, p. 6033 f.).
N. 3 In the parliamentary deliberations, Art. 4 BGFA (then Art. 3 of the draft) was uncontested in principle. The debates focused on the conditions for registration — notably the question of independence for employed lawyers (Art. 8(1)(d) BGFA). National Councillor Hochreutener took the view that independence should be assessed by reference to the individual case alone and not the organisational structure; National Councillor Nabholz likewise favoured a case-by-case approach (AB 1999 N 1557 f.). The parliamentary majority, however — after intensive discussions (AB 1999 N 1556–1566) — followed an institutional definition of independence (vote of Baumberger, AB 1999 N 1559). In the Council of States, rapporteur Saudan submitted that harmonisation concerned primarily the professional requirements and that the cantons retained the power to impose additional requirements (AB 1999 S 1163). The National Council approved the Federal Council's draft on the registration rule without reservation (AB 1999 N 1553; AB 1999 S 1164). The Act was adopted in the final vote on 23 June 2000.
#2. Systematic Classification
N. 4 Art. 4 BGFA is located in the first section of the Act («Freedom of Movement and Register», Arts. 1–11) and constitutes the central provision of the entire regulatory framework. It formulates the principle of freedom of movement — the legal consequence of registration — and thereby creates the connecting point for all subsequent provisions on the register (Art. 5 BGFA), the conditions for registration (Arts. 6–8 BGFA), deletion (Art. 9 BGFA), and the professional title (Art. 11 BGFA).
N. 5 The constitutional basis for the Act lies in Art. 95(1) and (2) of the Federal Constitution (Cst.): the Confederation is empowered to enact rules on private economic activity and to ensure a single Swiss economic area (judgment 2C_897/2015 of 25 May 2016, consid. 6.1). Art. 4 BGFA thereby gives effect to the requirement of free access to the profession throughout the entire national territory (→ Art. 95(2) Cst., → Art. 27 Cst.).
N. 6 Art. 4 BGFA stands in a tension with Art. 3 BGFA: whereas Art. 4 guarantees federal freedom of movement, Art. 3(1) preserves cantonal competence to set the requirements for obtaining a cantonal licence to practise law («Anwaltspatent»), and Art. 3(2) preserves the reservation allowing holders of a cantonal patent to appear before cantonal authorities in their home canton without being registered. This reservation concerns an exception confined to the home canton; the Federal Supreme Court has clarified that the legislative work focused on registration, not the cantonal patent (judgment 2C_897/2015, consid. 6.2.3; ↔ Art. 3 BGFA).
N. 7 Separate rules apply to lawyers from EU and EFTA member states (→ Arts. 21–34a BGFA). They may either provide services on a temporary basis (Arts. 21–26 BGFA, based on Directive 77/249/EEC) or establish themselves on a permanent basis (Arts. 27–29 BGFA, based on Directive 98/5/EC) and, where applicable, be entered in the cantonal lawyers' register (Arts. 30–34 BGFA). The Agreement on the Free Movement of Persons of 21 June 1999 (AFMP, SR 0.142.112.681) provides the international law framework: service providers from EU/EFTA states carry out their activities under the same conditions as Swiss nationals (BGE 130 II 87 E. 5.1.2).
#3. Content of the Provision
N. 8 Art. 4 BGFA reads: «Lawyers who are registered in a cantonal lawyers' register may represent parties before judicial authorities throughout Switzerland without any additional authorisation.» The provision requires two elements and attaches a legal consequence to them.
N. 9 First element — entry in a cantonal lawyers' register: Registration takes place in accordance with Arts. 5–8 BGFA. Each canton maintains a register of lawyers who have a business address on its territory and who satisfy the professional (Art. 7 BGFA) and personal requirements (Art. 8 BGFA). Registration is not an act of granting a practising licence in the traditional sense — the cantonal patent alone serves as the certificate of professional competence — but rather admission to practice in the inter-cantonal context (judgment 2C_897/2015, consid. 7.2.2). Lawyers without a fixed business address in a canton need not register there, but equally cannot claim the right to carry on regular forensic activities in that canton (BBl 1999 6013, p. 6033 f.).
N. 10 Principle of single registration: The Federal Supreme Court held definitively in BGE 131 II 639 E. 3.3–3.5 (2005) that lawyers may be entered in the register of one canton only. In the preliminary draft, the legislator had envisaged an obligation to register in every canton in which the lawyer had a business address, but abandoned that approach in the dispatch and restricted the obligation to register — and implicitly also the possibility — to a single canton (the relevant passage is cited in the judgment as BBl 1999 p. 6046; BGE 131 II 639 E. 3.3). The Federal Assembly approved this approach without reservation (AB 1999 N 1553; S 1164; BGE 131 II 639 E. 3.3). A lawyer with several business addresses must register in the canton in which he or she is predominantly active (BGE 131 II 639 E. 3.5; Staehelin/Oetiker, BSK BGFA, Art. 6 N. 12).
N. 11 Second element — scope of the monopoly: Art. 4 BGFA applies exclusively to the representation of parties before judicial authorities within the so-called lawyers' monopoly (→ Art. 2(1) BGFA). The lawyers' monopoly is not a true monopoly in the legal sense but a classic regulatory admission restriction designed to ensure professional and personal suitability (BGE 130 II 87 E. 3; Poledna, Anwaltsmonopol und Zulassung zum Anwaltsberuf, FS SAV 1998, p. 89 ff.). Pure legal advice does not fall within the scope of Art. 4 BGFA; it is neither subject to a registration requirement nor subject to disciplinary supervision under federal law (judgment 2C_897/2015, consid. 5.2.1).
N. 12 Legal consequence — freedom from authorisation: A registered lawyer may appear throughout Switzerland without needing to obtain an additional authorisation in any other canton. This replaces the former system of mutual practising licences. The legal consequence takes effect ipso iure upon the entry in the register becoming final and requires no further administrative act. If the entry is deleted pursuant to Art. 9 BGFA, the freedom of movement lapses immediately (↔ Art. 9 BGFA).
#4. Legal Consequences
N. 13 Registration within the meaning of Art. 4 BGFA entails comprehensive admission to forensic activity across cantonal boundaries. The registered lawyer is thereby subject to the disciplinary supervision of the authority of the canton of registration (Art. 14 BGFA) and is accountable to the supervisory authority of the canton in which he or she practises when active outside the canton of registration; the latter authority must inform the supervisory authority of the canton of registration (Art. 16 BGFA; → Art. 16 BGFA).
N. 14 Refusal or deletion of the entry in the register entails, as its mirror image, exclusion from federal freedom of movement. It is an administrative measure (not a disciplinary measure within the meaning of Art. 17 BGFA) and serves to secure compliance with the conditions for practising the profession. The Federal Supreme Court draws a clear distinction: administrative measures prevent a lawyer from practising without satisfying the conditions under Arts. 7 and 8 BGFA; disciplinary measures sanction breaches of the professional rules (Arts. 12 f. BGFA) (judgment 2C_897/2015, consid. 5.2).
N. 15 Registration does not confer authority to perform public notarial acts; that question is governed by cantonal law. A canton may restrict the authorisation to perform such acts to lawyers registered in its own register without violating federal or constitutional law (BGE 131 II 639 E. 6–7).
#5. Contested Issues
N. 16 Multiple registrations: The question whether simultaneous entries in several cantonal registers are permissible was disputed in the legal literature and in practice following the entry into force of the BGFA. Fellmann/Zindel (eds.), BSK BGFA, 2nd ed. 2019, argued from an early stage in favour of single registration. The Federal Supreme Court resolved the matter definitively in 2005: multiple entries are excluded. From a teleological perspective, simultaneous connections to several supervisory authorities would give rise to conflicts of jurisdiction in disciplinary matters and would undermine the purpose of freedom of movement (BGE 131 II 639 E. 3.4). The legal literature has endorsed this case law (Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 576 ff.; Fellmann, Anwaltsrecht, 2nd ed. 2017, N. 684 f.).
N. 17 Cantonal personal requirements for obtaining the cantonal patent: It is disputed whether cantons may make the acquisition of the cantonal patent conditional on personal requirements (as well as purely professional ones). Kettiger (Entzug des Anwaltspatents, Jusletter 28 September 2009, p. 4 f.) argues against this: the legislative history of Art. 3(1) BGFA shows that the federal legislator intended to confer cantonal competence only in respect of professional requirements; moreover, the cantonal patent in the BGFA is systematically linked only to professional requirements (Art. 7 BGFA), not to personal ones (Art. 8 BGFA). The prevailing academic view (Nater, BSK BGFA, Art. 3 N. 3; Bohnet/Othenin-Girard/Schweizer, CR LLCA, Art. 3 N. 16; Brunner/Henn/Kriesi, Anwaltsrecht, 2015, p. 12; Fellmann, Anwaltsrecht, N. 684 f.) and the Federal Supreme Court (judgment 2C_897/2015, consid. 6.2.1 f.; BGE 134 II 329 E. 5.1) affirm the cantons' right to impose personal requirements as well. The decisive consideration is that, when the BGFA was enacted, the focus was not on the requirements for the cantonal patent but on the conditions for registration; traditionally, cantonal patent requirements had never been exclusively professional in nature (judgment 2C_897/2015, consid. 6.2.3).
N. 18 Relationship to the Internal Market Act (BGBM): Since, according to Federal Supreme Court practice, registration constitutes a condition for admission to the profession rather than a mere market access restriction within the meaning of the BGBM, the Internal Market Act (SR 943.02) does not apply directly to the cantonal lawyers' register. Special rights of a sovereign nature — such as the authority to perform public notarial acts — are in any event excluded from the scope of the BGBM (Art. 1(3) BGBM; BGE 131 II 639 E. 6.1).
N. 19 Exhaustive federal regulation: The BGFA exhaustively governs the conditions for registration and the related administrative measures. The cantons have no latitude to make registration subject to additional conditions not provided for under federal law (BGE 130 II 270 E. 1.1 and 3.1.1; judgment 2C_897/2015, consid. 5.3). The only permissible cantonal measures that remain are the regulation of the acquisition of the cantonal patent under Art. 3(1) BGFA and the reservation in favour of appearances before home-canton authorities under Art. 3(2) BGFA.
#6. Practical Notes
N. 20 Registration as a condition of practice: A lawyer who carries on forensic activity in the inter-cantonal context without being registered is exposed to disciplinary measures in the canton of activity (→ Art. 17 BGFA). Parties represented by unregistered persons risk having their submissions declared inadmissible in cantons with a strict lawyers' monopoly.
N. 21 Choice of canton of registration with several office locations: Lawyers with offices in several cantons must register in the canton in which they are predominantly active. If the centre of gravity shifts permanently to another canton, there is an obligation to transfer the registration: deletion from the former register (Art. 9 BGFA) and new registration in the new canton (Art. 6 BGFA) (BGE 131 II 639 E. 3.5). The supervisory authority of the former canton of registration must be informed by the supervisory authority of the new canton of activity pursuant to Art. 16 BGFA.
N. 22 Digital registers: Several cantons now maintain their lawyers' registers online and publicly accessible. The Federal Office of Justice (FOJ) operates a consolidated database bringing together all cantonal registers, which is publicly accessible on its website. The federal obligation to maintain the register under Art. 5(3) BGFA requires that the register be maintained by the supervisory authority; the modalities of accessibility are governed by cantonal law.
N. 23 Right of appeal: Against decisions on registration or refusal of registration, not only the persons concerned but also cantonal bar associations may lodge an administrative law appeal (BGE 130 II 87 E. 1; Art. 6(4) BGFA). Since the entry into force of the Federal Supreme Court Act (BGG), the remedy against final cantonal decisions takes the form of a public law appeal to the Federal Supreme Court (Art. 82(a) BGG; judgment 2C_897/2015, consid. 1.1).
N. 24 Art. 4 BGFA and Art. 127 CrimPC: Art. 127(5) of the Code of Criminal Procedure (CrimPC) defines the criminal procedural scope of the monopoly for the defence of the accused. The Federal Supreme Court has clarified that deviating cantonal provisions for the defence in summary penalty proceedings do not derogate from the federal monopoly under the first clause of Art. 127(5) CrimPC (BGE 147 IV 379). Art. 4 BGFA and Art. 127(5) CrimPC are therefore complementary provisions: the former governs registration-based admission, the latter the substantive scope of the monopoly in criminal matters (→ Art. 2(1) BGFA).
#Cross-References
- ↔ Art. 2 BGFA (personal scope of application)
- → Art. 3 BGFA (reservation of cantonal law)
- → Art. 5 BGFA (maintenance of the register)
- → Arts. 6–8 BGFA (conditions for registration)
- ↔ Art. 9 BGFA (deletion as the mirror image of registration)
- → Art. 16 BGFA (inter-cantonal coordination of supervisory authorities)
- → Art. 17 BGFA (disciplinary measures for breach)
- → Arts. 21–34a BGFA (EU/EFTA lawyers)
- → Art. 27 Cst. (economic freedom)
- → Art. 95(1)–(2) Cst. (constitutional basis)
- → Art. 127(5) CrimPC (criminal procedural scope of the monopoly)
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