Facts

On 30 October 2023, the Zurich Cantonal Council adopted by unanimous decision a partial revision of the Administrative Procedure Act of the Canton of Zurich (VRG/ZH), which entered into force on 16 January 2024. The revision introduced, with § 4d VRG/ZH, an obligation for electronic administrative proceedings addressed to two groups of addressees:

  • Administrative authorities (§ 4d para. 1 lit. b VRG/ZH), which must communicate electronically with certain groups of persons;
  • Professional party representatives (§ 4d para. 2 VRG/ZH), who are in turn required to conduct procedural acts electronically. This includes in particular:
    • Persons who professionally represent parties before administrative authorities CO courts;
    • Lawyers authorised to represent parties under the Federal Act on the Freedom of Movement for Lawyers (FMLA);
    • Persons acting on the basis of a provisional permit under the Lawyers Act of the Canton of Zurich.

The obligation includes the use of electronic transmission channels and the affixing of a qualified electronic signature to submissions requiring a signature, in accordance with the Federal Act on Electronic Signatures (ESigA). The implementation was specified by the Ordinance on Electronic Procedural Acts in Administrative Proceedings (nVEVV/ZH), which is to enter into force on 1 January 2026.

The A. AG and B., two legal entities acting as professional party representatives, filed a public law appeal with the Federal Supreme Court on 19 February 2024. They sought the annulment of § 4d para. 1 lit. b and para. 2 VRG/ZH and argued that the regulation violated their economic freedom guaranteed under Art. 27 Cst.. They also requested the grant of suspensive effect, which was denied by order of 11 March 2024. The Canton of Zurich submitted a statement on the appeal on 8 April 2024 and requested its dismissal. The appellants maintained their requests in their reply of 22 April 2024.

Considerations

The Federal Supreme Court first examined whether the contested provisions of § 4d VRG/ZH encroach upon the scope of protection of economic freedom (Art. 27 Cst.). It found that while the obligation to use qualified electronic signatures and electronic transmission channels affects the free choice of operational resources and entrepreneurial organisational autonomy, it constitutes only a minor encroachment. The appellants had argued that the regulation concerned only administrative ancillary aspects of their activities and did not result in a serious encroachment on the core tasks of their professional practice. The Federal Supreme Court concurred with this assessment and confirmed that while the scope of protection of economic freedom was engaged, the encroachment was to be classified as minor.

The Court then examined whether the encroachment was justified by a public interest. It held that the digitalisation of administrative proceedings represents a significant public interest, particularly with regard to procedural economy and the prohibition of undue delay (Art. 29 para. 1 Cst.). The Federal Supreme Court referred to the Constitution of the Canton of Zurich (Cst./ZH), which in Art. 70 para. 2 Cst./ZH provides for the efficiency and cost-effectiveness of administration and in Art. 18 para. 1 Cst./ZH a duty to expedite court and administrative proceedings. It also relied on federal legal developments such as the Federal Act on Platforms for Electronic Communication in the Justice System (BEKJ), which promotes electronic legal proceedings. The Court emphasised that the Canton of Zurich, by introducing the obligation, was making an important contribution to the realisation of these public interests, in particular by simplifying and accelerating administrative and judicial proceedings.

In the context of the proportionality review, the Federal Supreme Court examined the suitability, necessity and reasonableness of the contested regulation. With regard to suitability, it found that the obligation contributes to the goal of procedural economy, even though it only covers a part of the procedural participants. Necessity was affirmed since voluntary solutions had…