Swiss vote for renunciation of EU/Swiss free movement agreements

Today, Switzerland voted in a referendum that signals an end to the EU/Swiss Agreement on the Free Movement of Persons that was signed in Luxemburg on 21 June 1999. The Agreement had last been approved by Swiss citizens in a referendum held less than three years ago.

This time, a slim majority of 50.3% of the Swiss population voted in favour of a popular initiative entitled “against mass immigration”. 56% of registered voters reportedly took part in the vote. 17 federal cantons voted in favour, while 9 voted against. In order to be approved, a popular initiative requires a dual majority: the initiative needs to obtain the consent of the majority of the voters, and it must be approved in a majority of the cantons.

The Swiss Ministry of Justice has already indicated it will start work on a legislative proposal to give effect to the new constitutional provision. The Ministry also specified that it would seek to renegotiate the Agreement on the Free Movement of Persons with the EU within a three year transitional period. The Agreement remains in force for now.

The initiative aims to insert a new article into the Federal Constitution of the Swiss Confederation to give the Swiss government absolute control over immigration by imposing caps on migrants living or working in Switzerland. It also mandates that no international agreement concluded by Switzerland can provide for the contrary.

The new constitutional provision that was approved in the referendum reads as follows:

‘Article 121a (new) Management of immigration

1 Switzerland shall regulate immigration as it sees fit.

The number of permits entitling foreigners to reside in Switzerland shall be subject to annual ceilings and quotas. The ceilings shall apply to permits issued pursuant to the immigration laws, including the rules on asylum. The right to permanent residence, family reunification and social welfare entitlements can be restricted.

The annual ceilings and quotas for foreigners exercising a gainful activity will be determined in accordance with Switzerland’s global economic interests and in accordance with the principle of preferential treatment of nationals; these shall also cover frontier workers. The criteria for allocating residence permits shall be based upon the needs of the employer, the capacity to integrate and the existence of adequate and self-sufficient resources.

4 No international treaty shall be concluded which contravenes these provisions.

5 Legislation shall give further effect to this provision.’

The initiative also provides a transitional period of three years during which international treaties must be renegotiated:

Art. 197 Transitional Measures relating to Article 121a

1 International treaties which are contrary to Article 121a shall be renegotiated and amended within a period of three years from the date of approval of the provision by the people and the cantons.

2 In the event that the laws giving effect to Article 121a have not entered into force within three years of the approval of the provision by the people and the cantons, the federal Council shall adopt provisional measures to give effect to the provision by way of decree.’

However, it remains to be seen whether there will be appetite among the EU institutions and the Member States for a whole-scale renegotiation of the Agreement on the Free Movement of Persons.

The negotiations relating to the current Agreement began not long after the rejection of Swiss participation in the EEA Agreement by a referendum held on 6 December 1992. The no vote in the referendum was swiftly followed by an official request by the Swiss authorities to start negotiations for an agreement on air transport. However, the EU prevailed in tying the conclusion of an agreement on air transport to the negotiation of a further six bilateral agreements covering free movement of persons amongst others. The Agreement on the Free Movement of Persons was eventually signed in 1999 and only entered into force some three years afterwards. This was followed by a transitional period of five years, so that it was only in 2007 that the Agreement finally took full effect.

In any event, regardless of the EU’s willingness to renegotiate the terms of the Agreement on the Free Movement of Persons, the Swiss government does have the option to renounce the Agreement by giving notice to the EU under Article 24. In such a case the Agreement then comes to an end six months after notification of a Swiss withdrawal.

Moreover, the Agreement on the Free Movement of Persons contains a “guillotine” mechanism covering all EU bilateral agreements, so that renunciation of this Agreement automatically triggers the termination of the other six bilateral agreements on air transport, rail and road transport, agriculture, mutual recognition of technical standards affecting goods, government procurement, as well as scientific and technical cooperation (collectively known as “Bilatérales I” in Switzerland). Renunciation of the Agreement on the Free Movement of Persons would therefore have wider far-reaching implications for Switzerland’s relations with the EU.

While a Swiss withdrawal from the Agreement on the Free Movement of Persons does not trigger the automatic termination of the separate agreements on Switzerland’s participation in the Schengen area and the Dublin Regulation signed in 2004 (referred to as “Bilatérales II” by the Swiss), both Switzerland and the Council of the EU also have a right to terminate those agreements (Articles 17 and 16 respectively) . There is a strong possibility this could happen given that the EU appears to consider the Agreement on the Free Movement of Persons as a pre-condition for participation in the Schengen Area, as reflected by the penultimate recital of the agreement concerning Swiss participation in the Schengen area. Renunciation of that agreement by Switzerland would then trigger cancellation of the agreement concerning the Dublin Regulation under Article 16.

The referendum affects an estimated 1.15 million foreign workers in Switzerland or 23% of the Swiss workforce according to EU Commissioner for employment and social affairs László Andor. A further 453,000 Swiss citizens living throughout the EU will also be affected by the popular initiative.

This development strikes a serious blow against the free movement of persons – one of the cornerstones of the European integration process – which is already under challenge from a number of EU governments and will no doubt provide ammunition for those calling for a renegotiation of the EU rules on free movement.

EU citizens and Swiss citizens who have questions about the effects the referendum will have on their personal situation are invited to contact Your Europe Advice for further assistance.

**Postscript**: For a discussion of the implications of the Swiss referendum in both Switzerland and the UK, please visit the EU Law Analysis blog. 

The views expressed on the blog are personal to the authors and should not be seen as constituting legal advice. It should not be relied upon instead of consulting a lawyer or immigration adviser.

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