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Art. 7 BGFA — Professional Requirements
#Doctrine
#1. Legislative History
N. 1 Art. 7 BGFA is the result of decades of efforts to harmonise the law governing the legal profession in Switzerland. In its Dispatch of 28 April 1999 on the Lawyers Act, the Federal Council explained that the minimum federal requirements for the cantonal lawyers' licence largely corresponded to the requirements then imposed by the cantons (BBl 1999 6037). The aim was not the full unification of licensing law, but rather the establishment of a federal minimum floor ensuring inter-cantonal freedom of movement (BBl 1999 6013).
N. 2 For the professional requirements, the Dispatch provided for two elements: a completed law degree from a Swiss university and a traineeship of at least one year followed by an examination (BBl 1999 6037 f.). The requirement of a «good reputation» had still been included in the consultation draft but was removed because this criterion was considered outdated and certain cantons no longer issued certificates of good character (BBl 1999 6038). The Federal Supreme Court had already qualified the requirement of Swiss citizenship as unconstitutional in BGE 119 Ia 35; the Dispatch therefore expressly dispensed with this criterion.
N. 3 Parliamentary deliberations extended from 1999 to 2000 and involved several rounds of conciliation proceedings between the National Council and the Council of States. The Act was adopted by both chambers in the final vote of 23 June 2000. The focus of the debates was not on the substantive content of Art. 7 (the minimum professional requirements were not greatly contested), but rather on the independence requirement in Art. 8 para. 1 let. d BGFA and the question of whether cantons may impose more stringent requirements within their own territory. This question is addressed in Art. 3 para. 1 BGFA. The Federal Supreme Court confirmed in judgment 2C_897/2015 of 25 May 2016 that the BGFA does not exhaustively regulate the conditions for obtaining a licence and leaves the cantons room to impose additional professional as well as personal requirements (consid. 6.2).
N. 4 Art. 7 para. 3 BGFA was inserted in the context of the Bologna Reform by the Federal Act of 23 June 2006, in force since 1 January 2007 (AS 2006 4399). The Dispatch of 26 October 2005 (BBl 2005 6207) aimed to adapt the law to the restructuring of higher education, which replaced the licentiate degree with a two-tier system of Bachelor and Master. Art. 7 para. 3 BGFA was created to require cantons to admit holders of a Bachelor of Law to the lawyers' traineeship.
#2. Systematic Classification
N. 5 Art. 7 BGFA governs the professional requirements for entry in the register; it is therefore to be distinguished from Art. 8 BGFA, which governs the personal requirements. This bifurcation is conceptually significant: the lawyers' licence as a cantonal certificate of competence is granted having regard to both categories of requirements (→ Art. 3 para. 1 BGFA), yet the BGFA itself — to the extent it applies conclusively — assigns the consequences of the lapse of requirements differently. Removal from the register (→ Art. 9 BGFA) presupposes that one of the requirements under Art. 7 or Art. 8 BGFA is no longer met.
N. 6 Within the overall system of the BGFA, Art. 7 constitutes the first link in the chain «licence → entry in the register → freedom of movement»: without a licence there is no entry in the register (Art. 6 para. 2 BGFA), and without entry in the register there is no inter-cantonal freedom of movement (Art. 4 BGFA). The licence itself does not directly entitle the holder to represent parties; it is a precondition for entry in the register, which constitutes the licence to practise (judgment 2C_897/2015 consid. 7.2.2). In cantons that avail themselves of Art. 3 para. 2 BGFA, licence holders may appear before the cantonal courts of that canton even without entry in the register (↔ Art. 3 para. 2 BGFA).
N. 7 Art. 7 is closely connected to Art. 3 para. 1 BGFA, under which the cantons retain the right to determine, within the framework of the BGFA, the requirements for obtaining a lawyers' licence. The requirements laid down in Art. 7 form the federal minimum; cantons may impose more stringent professional requirements. In relation to EU/EFTA lawyers, the special rules of Art. 27 ff. BGFA apply (→ Art. 27–32 BGFA), which take the place of the licence requirement.
#3. Elements of the Provision / Substantive Content
3.1 Lawyers' Licence as a Basic Requirement (para. 1, chapeau)
N. 8 For entry in the register, the applicant must hold a cantonal lawyers' licence (Art. 7 para. 1 BGFA). The lawyers' licence is — according to Federal Supreme Court case law — not a police permit in the technical legal sense, but rather a declaratory decision (Feststellungsverfügung) to the effect that the professional and, where applicable, personal requirements for the legal profession are satisfied (judgment 2C_897/2015 consid. 7.2.2). It follows from this character that the acquisition of a licence is in principle irreversible insofar as it is based on proof of professional qualifications; however, revocation of the licence by the cantons is permissible where they have linked the licence to personal requirements that subsequently lapse (judgment 2C_897/2015 consid. 6.3).
3.2 Completed Law Degree (para. 1 let. a)
N. 9 Art. 7 para. 1 let. a BGFA requires a law degree completed with a «licentiate or Master» from a Swiss university or an «equivalent higher education diploma» from a state that has concluded a mutual recognition agreement with Switzerland. The reference to licentiate and Master is attributable to the Bologna Reform (BBl 2005 6211 f.); both degrees are treated as equivalent. The requirement of a Master degree (as opposed to a Bachelor degree) for entry in the register and the licensing examination is prescribed by federal law; for admission to the traineeship, para. 3 applies instead (→ N. 14).
N. 10 «Equivalent higher education diplomas» from contracting states are recognised without the need for an individual equivalency assessment of the Master's diploma as such; however, the equivalency of the Bachelor degree preceding the Master — where the traineeship is based on a foreign Bachelor degree — must satisfy the requirements of para. 3 (→ N. 15). The BGFA does not specify the content and modalities of the degree programme; cantons may impose supplementary requirements, for example regarding the completion of specific courses in Swiss law (judgment 2C_505/2019 consid. 5.1).
3.3 Traineeship and Examination (para. 1 let. b)
N. 11 Art. 7 para. 1 let. b BGFA requires a traineeship of at least one year in Switzerland, completed with an examination on «theoretical and practical legal knowledge». The traineeship must be completed in Switzerland; a foreign traineeship does not suffice (Staehelin/Oetiker, in: Fellmann/Zindel [eds.], Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 4 on Art. 7 BGFA). The minimum duration of one year is mandatory; cantons may not recognise shorter traineeships as equivalent without falling below the federal minimum requirements (Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 523).
N. 12 The content and modalities of the examination are not prescribed by federal law; this area falls within cantonal competence (judgment 2C_505/2019 consid. 5.1; BGE 131 I 467 consid. 3.3). Each canton determines the examination subjects, examination format, and assessment standards itself, provided the examination tests the theoretical and practical knowledge referred to in Art. 7 para. 1 let. b BGFA. The Federal Supreme Court clarified in BGE 131 I 467 that the substantive assessment of examinations is not covered by Art. 6 para. 1 ECHR, because the evaluation of professional knowledge and experience does not constitute a «dispute» within the meaning of the Convention; formal procedural questions, by contrast, are subject to judicial review (consid. 2.7, 2.9).
N. 13 The Federal Supreme Court exercises restraint in reviewing examination decisions even where its specialist knowledge would enable it to conduct a more extensive substantive review; it intervenes only where the examining authority was guided by extraneous or manifestly untenable considerations (BGE 131 I 467 consid. 3.1). For appeals against decisions on examination results, the appeal on points of law in public-law matters (Beschwerde in öffentlich-rechtlichen Angelegenheiten) under Art. 83 let. t BGG is excluded; only the subsidiary constitutional complaint (subsidiäre Verfassungsbeschwerde) is admissible (judgment 2C_505/2019 consid. 1.1).
3.4 Bachelor Degree as a Condition for Admission to the Traineeship (paras. 2 and 3)
N. 14 Art. 7 para. 2 BGFA refers to the cantonal regulations governing the traineeship. Para. 3 provides that the «Bachelor of Law» constitutes a sufficient condition for admission to the lawyers' traineeship. The Federal Supreme Court clarified in BGE 146 II 309, through a methodologically careful interpretation, that «sufficient» does not mean «necessary» (consid. 4.3): cantons may — contrary to the Federal Council's assessment expressed in the 2005 Dispatch (BBl 2005 6217) — require traineeship applicants to hold a Bachelor of Law even if they have already obtained a Master's degree.
N. 15 The teleological basis of this case law is the public interest in ensuring that trainees possess sufficient basic legal knowledge: the Master of Law imparts specialised, but not necessarily foundational, knowledge in all core areas of Swiss law, because it is oriented towards specialisation (BGE 146 II 309 consid. 4.4.3 f.). A foreign Bachelor's degree suffices provided it is equivalent to a Swiss Bachelor's degree, i.e., it guarantees adequate foundational knowledge of Swiss law (BGE 146 II 309 consid. 4.4.6). In this respect the Federal Supreme Court departed from the prevailing academic opinion, which had relied on the Federal Council's Dispatch (Meier/Reiser, in: Valticos/Reiser/Chappuis [eds.], Loi sur les avocats, 2010, N. 32 on Art. 7 LLCA; Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 528; Staehelin/Oetiker, Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 4a on Art. 7 BGFA).
#4. Legal Consequences
N. 16 If a person satisfies the requirements of Art. 7 para. 1 let. a and b BGFA, they are entitled to be granted the cantonal lawyers' licence — provided the personal requirements under Art. 8 BGFA and any additional cantonal requirements (→ Art. 3 para. 1 BGFA) are also met. Entry in the register is effected pursuant to Art. 6 para. 2 BGFA by the cantonal supervisory authority once it has established that the requirements of Art. 7 and 8 BGFA are fulfilled.
N. 17 If a person does not satisfy Art. 7 para. 1 BGFA, the lawyers' licence may not be granted. If a corresponding deficiency subsequently arises in the case of a registered lawyer — which is rare but not impossible in relation to professional qualifications (e.g., upon subsequent discovery of a fraudulently obtained diploma) — removal from the register under Art. 9 BGFA is mandatory. The BGFA does not itself regulate the revocation of the lawyers' licence; in that respect, regulatory competence remains with the cantons (judgment 2C_897/2015 consid. 6.3, 8).
N. 18 Non-fulfilment of the requirements of Art. 7 BGFA entitles the cantonal authority to refuse entry in the register. Such refusal affects the economic freedom of the person concerned (Art. 27 FC) and must be based on a legal foundation, serve a public interest, and be proportionate (BGE 130 II 87 consid. 3). Decisions refusing entry in the register — unlike examination decisions — are amenable to appeal on points of law in public-law matters (BGE 130 II 87 consid. 1).
#5. Contested Issues
N. 19 Legal nature of the lawyers' licence. Traditional academic opinion characterises the lawyers' licence as a cantonal police permit (Fellmann, Anwaltsrecht, 2nd ed. 2017, para. 672). The Federal Supreme Court, in contrast, argued convincingly in judgment 2C_897/2015 consid. 7.2.2 that the lawyers' licence — at least in cantons that do not avail themselves of Art. 3 para. 2 BGFA — is a declaratory decision (Feststellungsverfügung), since it does not directly entitle the holder to represent parties but merely constitutes a precondition for the constitutive entry in the register. Kettiger (Entzug des Anwaltspatents, Jusletter 28 September 2009, p. 4) had advocated this position early on. The practical relevance of the question lies in the revocation regime: declaratory decisions may in general be revoked where the established circumstances subsequently lapse.
N. 20 Cantonal competence to impose personal requirements for the licence. According to the prevailing academic opinion and Federal Supreme Court case law, the cantons may make the acquisition of the lawyers' licence subject to personal requirements as well (judgment 2C_897/2015 consid. 6.2.1, with references to Nater, BSK BGFA, Art. 3 N. 3; Bohnet/Othenin-Girard/Schweizer, CR LLCA, Art. 3 N. 16; Fellmann, Anwaltsrecht, 2nd ed. 2017, paras. 684 f.). Kettiger (Jusletter 28 September 2009, pp. 4 f.) takes the opposing view: the legislative history of Art. 3 para. 1 BGFA shows that the federal legislature intended to reserve to the cantons only the professional dimension, which also follows from the systematic structure — Art. 7 BGFA relates to professional requirements and Art. 8 BGFA to personal requirements. The Federal Supreme Court confirmed the prevailing view, noting that the traditional cantonal licensing requirements had always included personal elements and that the federal legislature had not intended to change this (judgment 2C_897/2015 consid. 6.2.3).
N. 21 Bachelor degree as a necessary condition for the traineeship. The Federal Supreme Court departed in BGE 146 II 309 from the position unanimously held in academic writing (Meier/Reiser, CR LLCA, Art. 7 N. 32; Bohnet/Martenet, Droit de la profession d'avocat, 2009, N. 528; Staehelin/Oetiker, Kommentar zum Anwaltsgesetz, 2nd ed. 2011, N. 4a on Art. 7 BGFA). Academic opinion had relied on the 2005 Dispatch, which had considered a Master degree without a prior Swiss Bachelor degree to be sufficient (BBl 2005 6217). The Federal Supreme Court rejected this premise on teleological grounds: the Bachelor and Master degrees pursue different learning objectives — imparting foundational knowledge on the one hand, deepening and specialisation on the other — with the result that a Master degree cannot substitute for foundational training in Swiss law. Staehelin/Oetiker (op. cit., N. 4a) had based the contrary view on the argument that it was not for the admissions authority to call university degrees into question; this approach did not persuade the Federal Supreme Court, which found it failed to take account of the public interest in protecting those seeking legal advice (BGE 146 II 309 consid. 4.4.5).
N. 22 Content of the bar examination and the primacy of federal law. It is disputed whether cantons may extend the bar examination to subject areas not subject to the cantonal lawyers' monopoly. The Federal Supreme Court held in judgment 2C_505/2019 consid. 5.1 f. that the BGFA contains no provisions on examination content and that this falls within cantonal competence; the requirement to demonstrate knowledge of constitutional and administrative law was found to be appropriate and proportionate even where no lawyers' monopoly exists, since those seeking legal advice may expect expert representation in all areas of law.
#6. Practical Notes
N. 23 Application documents. The application for registration (→ Art. 5 para. 1 let. c BGFA) must include evidence of the law degree and the traineeship. Equivalent foreign diplomas require an equivalency assessment; in the case of traineeship applicants holding a foreign Bachelor's degree, it must be demonstrated, in accordance with BGE 146 II 309, that the degree corresponds in its foundational character to a Swiss Bachelor of Law.
N. 24 Examination law. Candidates who fail a bar examination may challenge formal procedural defects (impermissible examination format, violation of the right to be heard, arbitrary assessment) before the cantonal authorities and subsequently by way of subsidiary constitutional complaint (Art. 113 ff. BGG); substantive examination assessments are judicially reviewable only for arbitrariness (BGE 131 I 467 consid. 2.7, 3.1). Art. 6 para. 1 ECHR does not apply to examination decisions insofar as professional knowledge and experience are being assessed (BGE 131 I 467 consid. 2.9). As regards the right of access to files: examiners' personal notes are internal documents and are not accessible; there is no constitutional obligation to keep records of oral examinations in general (judgment 2C_505/2019 consid. 4.1.1).
N. 25 Intertemporal licensing law. Art. 36 BGFA (transitional provision) may exempt from the professional requirements of Art. 7 BGFA, but not from the personal requirements of Art. 8 BGFA (BGE 130 II 87 consid. 8.2). For lawyers who obtained their licence under former cantonal law (without a one-year traineeship), Art. 36 BGFA may bridge the gap.
N. 26 Relationship to Art. 8 BGFA. The examination by the register authority concerns Art. 7 and Art. 8 BGFA simultaneously (Art. 6 para. 2 BGFA). In practice, disputes over entry in the register are more frequently attributable to personal (Art. 8) than to professional (Art. 7) requirements; the clear distinction is nonetheless significant, because the transitional privilege under Art. 36 BGFA relates only to the professional requirements (↔ Art. 8 BGFA, → Art. 36 BGFA).
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