The bilateral Agreement on the free movement of persons (AFMP) confers upon the citizens of Switzerland and of the member states of the European Union (EU) the right to freely choose their place of employment and residence within the national territories of the contracting parties.
The AFMP establishes basic rules for the free movement of persons between Switzerland and the EU. This is conditional, however, on possession by the individuals concerned of a valid employment contract, being self-employed, or in the case of their not being in gainful employment, proof of financial independence and full health insurance coverage. The AFMP provides for a phased introduction of the ground rules for the free movement of persons between Switzerland and the EU. It lays down transitional periods during which immigration can be restricted. These transition periods are still valid for Romania, Bulgaria and Croatia. The agreement is further extended through the coordination of social security systems and the EU’s system of diploma recognition.
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. 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. In 2016, the supervisory authorities have verified the Swiss working conditions and wages in around 42’000 companies and of approximately 164’000 persons. In the same year, 2’453 fines and 741 interdictions that prohibit to work in Switzerland had been pronounced. The execution organs put effort to execute controls in a targeted way considering the risks on the employment market. The efficiency of the flanking measures is being monitored over the last few years, for example in regards to the extension of the AFMP to new member states. New measures are being discussed on a regular basis and are being voted by Swiss authorities in order to ensure appropriate legal instruments. On 1st April 2017, a supplementary revision of the Swiss Posted Workers Act entered into force. The law includes the increase of the maximum sanction of CHF 5’000 to CHF 30’000 in case of infractions pertaining the conditions of minimal wages and work. The sanction measures have, additionally, been reinforced through the introduction of an accumulation of fines and interdictions to work in serious cases.
On 9 February 2014 the Swiss people voted in favor of the popular initiative “Against mass immigration”. The new constitutional text required the Federal Council and Parliament to introduce within three years a new system for an autonomous management in regards to immigration and to safeguard the economy’s interests. On 11 February 2015 the Federal Council adopted a negotiating mandate in order to adapt the AFMP with the EU. On 4 march 2016 the Federal Council submitted draft legislation to the Parliament to manage immigration. Simultaneously intense consultations were led in 2015 and 2016 with the European Commission in order to find common ground.
The Swiss Parliament had to decide on the implementation of article 121a of the Federal Constitution although the consultations had not come to an end. In December 2016, both chambers agreed on an enforcement law of the article 121a compatible with the AFMP. The law was adopted on December 16th 2016. The Federal Council authorised the Federal Department of Foreign Affairs (FDFA), to confirm the ratification of Protocol III (extending the Agreement on the Free Movement of Persons to Croatia) to the EU. Therefore, since January 2017, Croatian nationals benefit from the free movement of persons.
The draft regulations on behalf of the law on the implementation of the article 121a of the federal Constitution were adopted on 8th December 2017. These regulations foresee in particular the obligation to communicate the open vacancies in those professional categories that have an unemployment rate that is equal or superior to a certain threshold. The threshold applied as of 1st July 2018 will be of 8%, and of 5% as of 1st January 2020. The job seekers that are registered in a regional employment agency will benefit from an advanced access to the information during a period of five working days, after which the employees can publish their job offers outside these offices. All persons that are registered in a regional employment agency will benefit from this measure, independently on their nationality. This includes all citizens coming from the EU or from an EFTA state that live in Switzerland, as well as those citizens that seek for a job in Switzerland and which are registered in one of the offices of placement. With the adoption of these regulations the implementing process of the initiative of 9th February 2014 is concluded. This implementation reflects the Swiss population’s will of 9th February 2014, respecting all obligations of Switzerland in accordance with the AFMP.