EU-Swiss free movement and “stop mass immigration”: Much Ado about Nothing?
14 Tuesday Mar 2017
On the 9th February 2014, the Swiss electorate approved the referendum “Against mass immigration”. It thus introduced into the Swiss Federal Constitution a new article 121a which provides that Switzerland must manage immigration “in an autonomous manner” by means of quotas, that it must apply the principle of national preference, and that it may not conclude international agreements which are contrary to these principles. A transitional provision fixed a deadline of three years for the Government to renegotiate current international agreements which are contrary to these principles, and for the Parliament to adopt an implementing law.
Approved by a very small majority, the referendum initiative calls into question the very foundations of Swiss-EU relations. The text of the new article 121a of the Constitution is in effect irreconcilable with the Agreement on the Free Movement of Persons (AFMP), which excludes precisely all quotas and all rules of national preference, except on a transitional basis vis-à-vis nationals of new EU Member States (article 10 AFMP). Moreover, the denunciation of the AFMP would entail the automatic denunciation of a series of other agreements of primary importance by means of the “guillotine clause” (article 25 AFMP), and would call into question still more agreements. In practice, this would amount to a complete upturning of the treaty regime which has been patiently built up by Switzerland and the EU over the last twenty years.
The immediate consequences of the vote of the 9th February have not been so radical. Up to the point of its effective implementation, article 121a has not had an impact on the application of the AFMP in Switzerland, and the EU has chosen to insist on the full application of the AFMP and to not activate the aforementioned measures. For its part, the Swiss government has declared its intention to find a solution which will permit it to put into effect article 121a and at the same time to preserve its relations with the EU. In the meantime, some consequences have nevertheless arisen.
Thus, the Swiss Government has considered that article 121a prohibited it from signing the recently agreed protocol on the extension of the AFMP to Croatia. The EU as a result excluded Switzerland from the Horizon 2020 research programme and indicated that a return to normality and the further development of treaty relations between the EU and Switzerland was contingent on the proposition by Switzerland of a satisfactory solution to the confusion created by the vote of 9 February 2014.
As a solution, the transitional clause to article 121a of the Constitution pointed to the “renegotiation” of the AFMP. The EU, which is in no way bound by this clause, has steadfastly refused to go down this route, leaving the Swiss Government and Parliament to square the circle at the level of domestic law.
The idea proposed by the Swiss Government to the Parliament was not to introduce immediately applicable quotas vis-à-vis EU citizens, but to put into law a “unilateral safeguard clause” which would permit the application of quotas if immigration from EU states surpassed a certain threshold. The risk, however, of such a solution was that the “chain denunciation” of EU-Swiss Agreements would only be deferred.
With the law of 16 December 2016, the Swiss Parliament chose a different and significantly more “euro-compatible” solution. However, the compatibility of this solution with the AFMP is not certain, and it has been openly admitted that the new law does not satisfy the requirements of the new article 121a.
Proposed modification of the Federal Law on Foreigners (nLEtr)
Wishing to safeguard harmonious bilateral relations between Switzerland and the EU, the Swiss Parliament decided to distance itself from the Government’s proposals and to put forward its own bill. Originally, two measures were envisaged: an internal safeguard clause permitting the adoption of restrictive measures in certain circumstances which would be subject to a decision of the Mixed Committee in case of incompatibility with the AFMP, as well as a national preference clause. After a back-and-forth between the two Chambers of Parliament, only the second measure was adopted, and even then in a nuanced form (cf article 21a nLEtr).
The objective of article 21a nLEtr is to delegate to the Government the competence to adopt different measures permitting the “exhaustion of the potential that the Swiss workforce offers” (paragraph 1). In this respect, it is foreseen that “time-limited measures aiming to favour persons who are registered with the public employment service as jobseekers” can be adopted in case of an above-average rate of unemployment in a particular sector or economic region (paragraph 2). The third and fourth paragraphs of article 21a nLEtr set down the form of such measures: the introduction of an obligation on employers, in case of a rate of unemployment which is above the average, to communicate any job vacancies to the public employment service and to invite all candidates proposed by the public employment service whose profiles correspond to the position to an interview. The result of the interviews would then be transmitted to the public employment service. It is worth specifying also that it is up to the Government to periodically establish a list of professions and domains of activity to which this obligation applies by reason of a raised unemployment rate (paragraph 6) and that a particular role is attributed to the cantons, which can propose the introduction of such measures to the Government (paragraphs 1, 7 and 8). Finally, paragraph 8 reserves the right for the Government to submit to the Parliament supplementary measures, if the desired effects are not achieved or if new problems arise.
It can be seen immediately that the proposed article 21a is characterised by numerous indeterminate legal notions which must be given effect to through implementing rules. This being so, the proposal offers already some indications which can be the object of analysis from the standpoint of their compatibility with article 121a of the Constitution and with the AFMP.
The mandate given by article 121a of the Swiss Federal Constitution
The bill to modify the LEtr adopted by the Swiss Federal Parliament in December 2016 immediately raised the question of respect for the constitutional mandate given by article 121a of the Constitution. In other words, as regards immigration from EU/EFTA states, could the legislator settle for the adoption of a measure of “national preference light” such as that described above, aimed at certain sectors and certain regions, or did the legislator ignore its constitutional obligations?
Certain authors are of the opinion that the constitutional mandate has indeed been fulfilled by the legislator. According to these authors, as article 121a of the Constitution required a renegotiation of the AFMP, and as this renegotiation failed, the legislator was justified in interpreting article 121 in a manner consistent with international law. In light of this, only measures which are compatible with the AFMP could be required by article 121a of the Constitution. In our view, however, recourse to the principle of consistent interpretation with international law can only be applied when the interpretation of the constitutional provision allows this. Such is not the case with article 121: the text of article 121a expressly provides, in effect, that Switzerland must manage immigration “in an autonomous manner” (paragraph 1). Article 121a paragraph 2 specifies moreover that these limits and quotas must concern “all authorisations granted by the law on foreigners”. On the basis of this text, the whole set of residence permits granted on the basis of the AFMP – either with or without gainful activity – should be the object of quotas and ceilings.
The proposed article 21a nLEtr seems therefore to be so far from the text of article 121a of the Constitution that it raises real questions of constitutionality. Such is the opinion of the Federal Council which judged that the proposed modification of the LEtr, “by refraining in a general manner from setting maximum amounts and quotas for nationals of EU and EFTA Member States, […] does not fully give effect to article 121a of the Constitution.”
It is nevertheless important to note that the Swiss Parliament had practically no other choice. In effect, in the absence of an agreement with the EU on adding a new safeguard clause to the AFMP, implementing article 121a of the Constitution is practically impossible. Any proposed legislative modification which would be compatible with the text of article 121a – and thus contrary to the principles of free movement and non-discrimination set down in the AFMP – would, in light of the case-law of the Swiss Supreme Court, not be applied in a concrete case. In its case law, the Supreme Court has recently recalled the principle of primacy of the AFMP over federal laws. Since no agreement with the EU is foreseeable, and since article 121a of the Constitution does not require the denunciation of the AFMP, the Swiss Parliament had effectively no choice that that of moving away from the text of article 121a to attempt to propose a solution which is compatible with the AFMP.
The consequences of this unconstitutionality remain to be examined. In this respect, we should underline that the Swiss constitutional system is characterised by a peculiar disposition according to which “The Supreme Court and the other authorities must apply federal laws and international law” (article 190 of the Constitution). This disposition guaranties a certain supremacy to the Federal Assembly, in that the Supreme Court is not empowered to declare federal laws to be unconstitutional. No legal means therefore can permit the Court to declare the non-conformity of article 21a nLEtr with article 121a of the Constitution. In such a case, those who favour a strict application of article 121a, or those who consider that it is for the people to decide the issue, will have no possibility other than to attempt to oppose the entry into force of the proposal by submitting a demand for a referendum (article 141 paragraph 1 (a) of the Constitution). In this case, such a demand has been submitted. This demand must obtain the support of 50,000 citizens having the right to vote between now and 7 April 2017. If the necessary number of signatures is collected within the time limit, it will be for the Federal Council to organise a popular vote on the proposed modification of the LEtr (article 59c of the Federal Law on Political Rights). If the result of the referendum opposes the proposed legislative modification, the federal legislator will find itself faced with the same dilemma as it did after the 9th February 2014.
Conformity with the AFMP
As has been seen, it was out of the wish to respect the AFMP that the Swiss Parliament has moved away from the text of article 121a of the Constitution. This wish was welcomed by the EU’s Member States during the mixed committee session of 22 December 2016. On the same occasion, certain Member States raised the issue that the risk of violation of the agreement has not disappeared. The prudent formula chosen by the Council at paragraph 3 of its conclusions of 28th February confirms this.
According to the clear language of article 21 nLEtr, the newly adopted “national preference light” must “favour persons who are registered with the public employment service as jobseekers”. In turn, the conditions under which an EU citizen can register with the Swiss public employment services become the key factor in determining whether the rule is compatible with the AFMP.
Leaving aside discriminations founded directly on nationality, any requirement of territoriality – conditions of residence, prior integration into the Swiss labour market, etc. – would be very problematic as regards conformity with the AFMP, however “light” the priority granted may be.
- Firstly, because the free movement of workers aims by definition at bringing together labour supply and demand at a continental level (see, for example, article 11, annex I AFMP), and therefore does not tolerate rules of “preference” which are territorially defined.
- Secondly, because according to the case law, any (dis)advantage linked to territorial factors such as those evoked above constitutes indirect discrimination which is in principle prohibited.
- Thirdly, because Switzerland is explicitly forbidden from maintaining rules prioritizing workers who are integrated into the regular labour market in Switzerland vis-à-vis EU citizens (cf article 10 paragraph 2, 2a and 2b AFMP), with the temporary exception of Croatian nationals (article 10, paragraph 2c AFMP).
While the law of 16 December brings some much-needed relief to strained Swiss-EU relations and reopens perspectives of development that had been closed for a number of years, it is nevertheless true that the EU and its Member States will pay close attention to the practical implementation of this “national preference light”. Should the latter give rise to violations of the AFMP, all the diplomatic disputes that have just been put aside could once more surface. Practices violating the AFMP could moreover give rise to challenges before the Swiss courts, and these courts can be expected give primacy to the application of the AFMP, according to the Supreme Court case-law evoked above.
Following the adoption by the people and the cantons of article 121a of the Constitution, a committee was set up to launch the referendum initiative “Break the deadlock! Abandon the establishment of immigration quotas” (RASA initiative), which aims to repeal article 121a and its transitional provision. The idea behind this initiative is that the people should choose between article 121a and the bilateral agreements concluded between Switzerland and the EU, the two being incompatible.
While the Federal Council proposed that this initiative be rejected, it nevertheless decided to put forward a direct counter-proposal – that is to say, an alternative modification of the Constitution. Considering in effect that the bill adopted by Parliament “does not entirely apply the constitutional provisions on immigration”, the Federal Council was of the opinion that article 121a of the Constitution should be modified in order to provide a constitutional foundation for the Parliament’s decision to manage immigration in a manner which is compatible with Switzerland’s bilateral obligations. Two options were envisaged: the first aimed to modify article 121a of the Constitution in order to introduce a reservation in favour of certain international treaties – notably the AFMP and the ECHR; the second was to remove the transitional provision without providing any reservation as regards the AFMP, which would have required an attempt at modification. A consultation by different political parties demonstrated such a strong opposition to these two propositions – some considering that a new vote is not necessary, and others putting forward a counter-proposal with a different content – that they should no longer be considered as relevant.
Various questions remain to be answered: will the referendum against the proposed nLEtr come to pass? Will a new counter-proposal obtain the support of parliament? Will the initiators of the RASA in the end decide to withdraw their initiative?
Whatever the response to these different questions, we must note that should the status quo prevail, article 121a as currently formulated grants no explicit mandate in favour of denunciation of the AFMP. The UDC (Swiss People’s Party) has nevertheless announced that an initiative of this kind is in the pipeline… A new vote to clarify Swiss-EU relations will then have to take place.
As for the immediate perspectives of Swiss-EU relations, three points should be underlined. Firstly: the vote of 9 February 2014 for article 121a of the Constitution could have constituted a tsunami for Swiss-EU relations, but for now it has not amounted to much in terms of practical consequences. However, secondly, the solutions found by the Swiss Parliament toe the line between respect and violation of the AFMP, as discussed above. Any lapse in their implementation could reopen all pre-existing disputes, both at the diplomatic level and in Swiss politics. Thirdly, it is against this backdrop – and time will tell if this situation is sufficiently stable – that Switzerland and the EU will attempt to define a general institutional framework for their partnership. This will be a much more difficult endeavour, both technically and politically, especially in the context of Britain’s long goodbye to the Union.