The bilateral Agreement on the free movement of persons (AFMP), signed in 1999 and into force since 2002, 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 – if one is not being gainfully employed – proof of financial independence and full health-insurance coverage. The agreement is further extended through the coordination of social security systems and the EU’s system of diploma recognition. 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 apply for Croatia.
As a supplement to the FMP, accompanying measures on the labour market came into force on 1 June 2004 to better protect workers against the risk of wage and social undercutting linked to the free movement of persons. These measures make it possible to carry out checks on compliance with minimum or customary working and pay conditions in the workplace, in defence of workers, whether they are Swiss citizens or resident foreigners, as well as posted foreign workers. In 2018, the supervisory authorities verified Swiss working and pay conditions in around 42’000 companies and of almost 173’000 persons. However, in 2020, the results of the report show an overall decrease in enforcement from 41'305 to 34'126 (-17%) compared to 2019, which is mainly due to restrictions associated with sanitary measures. In 2018, 3'148 fines were issued in Switzerland, compared to 2'503 in 2019 and 2'142 in 2020. As regards bans on staying in Switzerland, 1'114 were issued in 2018, compared to 931 in 2019 and 853 in 2020. The enforcement agencies are committed to carrying out targeted and risk-based checks on the labour market. The efficiency of the accompanying measures is being monitored over the years, for example with regards to the extension of the AFMP to new member States. New measures are discussed and decided upon by Swiss authorities on a regular basis in order to ensure appropriate legislative instruments. On 1 April 2017, a supplementary revision of the Swiss Posted Workers Act entered into force. The law includes an increase in the maximum sanction from CHF 5'000 to CHF 30'000 for violations pertaining to the minimum working and salary conditions. Additionally, the sanction measures have been reinforced through the introduction of an accumulation of fines and prohibitions to work in serious cases.
Implementation of Article 121a – Obligation to announce vacancies
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 of autonomous immigration management while safeguarding the economy’s interests.
In December 2016, both chambers of Parliament agreed on an implementation law of Article 121a compatible with the AFMP. The Federal Council then mandated the Federal Department of Foreign Affairs (FDFA) to confirm the ratification of Protocol III (extension of the AFMP to Croatia) to the EU. Therefore, since January 2017, Croatian nationals benefit from the free movement of persons.
The draft regulations relating to the law implementing Article 121a of the Federal Constitution were adopted on 8 December 2017. These regulations foresee in particular the obligation to communicate the vacancies in those professional categories presenting an unemployment rate equal or above a certain threshold. This threshold was 8% from 1 July 2018 to the end of 2019. From 1 January 2020, it has been reduced to 5%. Jobseekers that are registered with a regional employment office thus benefit from advanced access to information during a period of five working days, after which employers can publish their job offers outside these offices. All persons that are registered in a regional employment office benefit from this measure, regardless of their nationality. This includes all nationals of EU or EFTA countries that live in Switzerland, as well as citizens of those countries who seek a job in Switzerland and are registered with one of the placement offices. With the adoption of these regulations the implementation process of the initiative of 9 February 2014 is concluded. This implementation reflects the popular will expressed on 9 February 2014 while respecting all of Switzerland’s obligations in accordance with the AFMP.
Rejection of the popular initiative "For moderate immigration" of 27 September 2020
On 27 September 2020, the Swiss people and the majority of the cantons rejected the federal popular initiative "For moderate immigration (Limitation Initiative)" by 61.71%.
The limitation initiative would have called into question the free movement of persons with the EU and, because of the guillotine clause, the entire Bilaterals I. Without the Agreement on the Free Movement of Persons and the Bilaterals I with the EU, Swiss companies would have lost direct access to their main market.
In rejecting this initiative, the Swiss people confirmed their commitment to the free movement of persons and their willingness to pursue the bilateral approach with the EU. The Federal Council, the cantons and the social partners, who had opposed the initiative, welcomed its broad rejection by the Swiss people.