Through the agreement on the free movement of persons (FMP) between Switzerland and the EU, which was signed in 1999 and came into effect in 2002, citizens of Switzerland and EU member states now have the right to choose freely their place of work and place of domicile within the territories of the contracting parties. The FMP introduces the basic rules on the free movement of persons between Switzerland and the EU.
In the framework of the FMP, Switzerland participates in the EU’s system of diploma recognition. The agreement is further extended through the coordination of national social security systems which is based on the principle of equal treatment for Swiss and EU citizens. The agreement however allows individual countries to continue to determine the structure of their own social security systems, as well as the nature and amount of social security benefits.
After the FMP came into effect in 2002 for the then 15 EU countries, in 2006 it was extended to the ten countries that joined the EU in 2004 (Protocol I). And after the accession to the EU of Bulgaria and Romania, the FMP was extended to these two countries in 2009 (Protocol II). Both protocols were approved by national referendum in Switzerland.
Transition deadlines and safeguard clause
The FMP has been fully applicable for the 15 “old” EU states (EU-15) as well as Malta and Cyprus since 1 June 2007. The eight Eastern European states that joined the EU in 2004 (EU-8) have enjoyed the unrestricted freedom of movement of persons since 1 May 2011. The safeguard clause can be invoked against these 25 EU members until 31 May 2014. As of 1 May 2012, the safeguard clause was invoked provisionally for one year against the citizens of the EU-8 countries with a Swiss B residence permit. On 24 April 2013, the Federal Council decided to extend the safeguard clause for a further year against the EU-8 as of 1 May 2013. In addition, it decided to invoke the same safeguard clause as of 1 June 2013 against the 17 other EU member states (EU-15 plus Malta and Cyprus) for one year. For Bulgaria and Romania, the transition deadline applies until 31 May 2016 at the latest. The safeguard clause can be invoked against Bulgaria and Romania until 31 May 2019.
As a supplement to the FMP, job market measures came into force on 1 June 2004 that protect both the Swiss working population and foreign employees sent to Switzerland from efforts to undercut salaries and the working conditions that apply in Switzerland. These so-called flanking measures were strengthened following the extension of the FMP in 2006 and 2009. As of 1 January 2013, further gaps in the legislation on flanking measures were closed and their provisions more efficiently implemented. The measures are intended, among other things, to help counter the influx of foreign service providers that are only independent in name, or through sanctions to ensure compliance with compulsory minimum wages for all persons employed in Switzerland. The Federal Council decided on 26 March 2014 an additional adaptation of the flanking measures: Therefore the consultation process has been opened on 19 September 2014.
On 9 February 2014 the Swiss people voted in favor of the popular initiative “Against mass immigration”. The new constitutional text requires the Federal Council and Parliament to introduce a new admissions system for all foreign nationals within three years, restricting immigration through quantitative limits and quotas. The Federal Council specified nonetheless that the constitutional text is not compatible with the FMP. On 20 June 2014, the Federal Council approved the concept for implementing the new article of the Federal Constitution on immigration as well as the draft of the negotiation mandate with the EU to adapt the FMP which was approved on 8 October 2014. On 11 February 2015 the Federal Council approved the draft of the new legislation on foreign nationals and additional measures to make better use of the potential workforce within Switzerland. It also made a final decision on the negotiating mandate with the EU on the Agreement on the Free Movement of Persons. The immigration system that the Federal Council has devised contains annual quantitative limits and quotas for all foreign nationals and provides that Swiss residents should be given priority when recruiting new staff. The admission of EU citizens will be regulated by the AFMP as before, but the Agreement will have to be amended in line with the constitutional requirements. The results of the negotiations being sought with the EU are therefore key to the draft legislation. For citizens of third countries, the draft legislation being submitted for consultation provides for quotas and the prioritisation of existing Swiss residents, as was previously the case.
The Federal Council also approved the mandate to negotiate with the EU on amendments to the AFMP. The mandate assigns the task of adapting the Agreement so that Switzerland will be able to control immigration levels autonomously, and limit immigration while safeguarding general economic interests. At the same time, Switzerland will maintain the bilateral path as the basis for its relations with the EU. Under the mandate, both objectives must be pursued equally.
Consultation on the draft legislation will be carried out to 28 May 2015. An overall assessment of the implementation of the new constitutional provision will only be possible once the results of the negotiations on the amendment of the AFMP are available and the accompanying measures have been taken into consideration.
The new constitutional provisions exclude the conclusion of any new agreement which would not be compatible with the introduction of quotas for immigrants. Therefore the Federal Council could not sign the current version of Protocol III which foresaw an extension of the FMP to Croatia. The Federal Council decided on 30 April 2014 further measures which provide solutions for an admission under quotas for Croatian nationals as members of a third country to the Swiss labor market.