EU-Switzerland

Bilateral in force

INTRODUCTION

Switzerland holds a unique position in Europe regarding the free movement of persons. Although Switzerland is a member of the European Free Trade Association (EFTA), it is neither part of the European Economic Area nor the European Union. Even though Switzerland signed the Agreement on the European Economic Area in 1992—which also encompasses free movement of persons—the agreement was not ratified, as it was rejected in a popular referendum. Instead, free movement was established through the 1999 Agreement between the European Community, its Member States, and the Swiss Confederation on the free movement of persons (hereafter referred to as the AFMP), which came into force on 1 June 2002. Following the revised 2001 EFTA Convention, which took effect on the same date, identical provisions regarding free movement of persons apply between Switzerland and Norway, Iceland, and Liechtenstein (with restrictions).

The AFMP closely resembles the model of EU free movement law. According to the first article of the AFMP, its objectives are to: (a) grant the right of entry, residence, access to work as employed persons, establishment on a self-employed basis, and the right to stay in the territory of the Contracting Parties; (b) facilitate the provision of services within the territory of the Contracting Parties; (c) grant the right of entry into and residence in the territory of the Contracting Parties to persons without economic activity in the host country; and (d) ensure the same living, employment, and working conditions as those granted to nationals (see Art. 1 AFMP).

The conditions for entry and establishment under the AFMP are intended to be identical to those under the EU/EEA framework (see Art. 16 AFMP). However, there are certain discrepancies between the two regimes. This is primarily due to the static nature of the AFMP, which means that developments in the EU/EEA framework that occurred after the adoption of the AFMP are not necessarily incorporated. For instance, individuals taking up residence in Switzerland under the AFMP must apply for a residence permit. In contrast, within the EU/EEA framework, only a registration requirement with limited documentary evidence is needed since the enforcement of the Citizens' Rights Directive (see Art. 5 Directive 2004/38/EC). The European Court of Justice (ECJ) has also adopted a restrictive interpretative approach, ruling that the interpretation given to Union law cannot be automatically applied by analogy to the interpretation of the AFMP (see, for example, the ECJ’s rulings in Picart and Wächtler).

Freedom of movement under the AFMP was introduced gradually. Over five years following the AFMP's entry into force, Switzerland could impose a quota on individuals settling for more than four months. In contrast, other participating states were permitted to retain specific labour market restrictions for up to two years after the agreement took effect (Art. 10 AFMP). States joining the EU/EEA may accede to the AFMP and must adhere to restrictive transitional measures following their accession. Significantly, the AFMP also includes a safeguard clause that enables Switzerland, under certain conditions, to unilaterally impose a residence permit quota for up to two consecutive years (Art. 10 AFMP).

The AFMP does not grant beneficiaries a permanent residence permit (referred to as a settlement permit in the Swiss context). According to Swiss domestic law, a settlement permit can, in principle, be obtained after ten years of residence (Art. 34 Foreigners and Integration Act). However, Switzerland has entered into bilateral settlement agreements with seventeen EU/EEA Member States, which reduce the residence requirement for citizens of those states to five years (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden, Iceland, Liechtenstein, and Norway).

STATE PARTIES

SWITZERLAND
AUSTRIA (2002-)
BELGIUM (2002-)
BULGARIA (2009-)
CROATIA (2017-)
CYPRUS (2006-)
CZECH REPUBLIC (2006-)
DENMARK (2002-)
ESTONIA (2006-)
FINLAND (2002-)
FRANCE (2002-)
GERMANY (2002-)
GREECE (2002-)
HUNGARY (2006-)
IRELAND (2002-)
ITALY (2002-)
LATVIA (2006-)
LITHUANIA (2006-)
LUXEMBOURG (2002-)
MALTA (2006-)
NETHERLANDS (2002-)
POLAND (2006-)
PORTUGAL (2002-)
ROMANIA (2009-)
SLOVAKIA (2006-)
SLOVENIA (2006-)
SPAIN (2002-)
SWEDEN (2002-)
UNITED KINGDOM (2002-2021)

TIMELINE

2002	Free movement between Switzerland and EU countries commences (with transitional restrictions) as the AFMP comes into effect on 1 June.
2006	Accession of Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia (with transitional restrictions) to the AFMP commenced from 1 April onwards.
2009	Accession to the AFMP of Bulgaria and Romania (with transitional restrictions) from 1 June onwards.
2017	The accession protocol to the AFMP of Croatia (with transitional restrictions) comes into effect on 1 January 2017. Although the accession protocol had been de facto applied by Switzerland since 1 July 2014, it could not be ratified earlier because the Swiss government maintained that the outcome of the 2014 “Mass Immigration” referendum obstructed ratification.
2021	As a result of the United Kingdom’s exit from the European Union and the Withdrawal Agreement, the AFMP will no longer apply to the United Kingdom from 1 January onwards.

KEY LEGAL DOCUMENTS

Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons (In force 1 June 2002) (OJ L 114 30.4.2002, p. 6).

Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons regarding the participation, as contracting parties, of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic pursuant to their accession to the European Union (in force 1 April 2006).

Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, regarding the participation, as contracting parties of the Republic of Bulgaria and Romania pursuant to their accession to the European Union (in force 1 June 2009).

Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, regarding the participation of the Republic of Croatia as a Contracting Party, following its accession to the European Union (in force 1 January 2017).

Decision No 1/2020 of the Joint Committee established under the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons of 15 December 2020 amending Annex II to that Agreement on the coordination of social security schemes [2021/137] (Brexit) (in force 15 December 2020).