EU/EFTA Free Movement of Persons: Which Rights Apply in Switzerland

Switzerland is not a member of the European Union, and yet nationals of the EU and EFTA member states enjoy far-reaching rights to live and work here. The basis for this is the Agreement on the Free Movement of Persons (AFMP, SR 0.142.112.681) between Switzerland and the European Union, together with the parallel EFTA Convention for the EFTA states. The AFMP opens up access for EU/EFTA nationals that differs fundamentally from the quota-based system for third-country nationals. This article explains which states are covered, how registration works, which permit types come into consideration, which rights exist in respect of employment and self-employment, and how the coordination of social insurance functions. It describes the legal situation in general terms and does not replace information provided by the competent cantonal migration authority.

The Agreement on the Free Movement of Persons (AFMP)

The AFMP entered into force in the context of the first set of bilateral agreements ("Bilaterals I") between Switzerland and the EU; free movement of persons was extended to the EFTA states through a parallel EFTA Convention. The agreement grants nationals of the covered states the right to enter Switzerland, to reside, to take up gainful employment, or to establish themselves as self-employed persons, provided that certain conditions are met — namely the ability to provide for one's own subsistence and the existence of adequate health insurance cover (see Annex I Art. 6 AFMP and Annex I Art. 24 AFMP). The State Secretariat for Migration (SEM) documents the respective current state of the agreements at sem.admin.ch.

In contrast to the EU internal market, the AFMP is a treaty under international law, not a supranational regulation. Switzerland thereby retains a certain degree of latitude in its implementation, and the agreement is interpreted by a Joint Committee and not by the Court of Justice of the European Union. In practice, however, the rights granted are nonetheless largely comparable to those within the EU/EEA area.

Domestic implementation takes place via the Ordinance on the Introduction of the Free Movement of Persons (VEP/VFP, SR 142.203), as well as, supplementarily, via the Federal Act on Foreign Nationals and Integration (FNIA, SR 142.20) and the Ordinance on Admission, Residence and Employment (OASA, SR 142.201), insofar as the AFMP does not contain a more favourable provision (on the principle of the more favourable provision, see Annex I Art. 12 AFMP).

Which states are covered?

The AFMP covers the EU member states as well as the four EFTA states, of which Switzerland itself is one. For Croatia, which joined the EU in 2013, free movement was introduced via a separate protocol; this provided for time-staggered transitional rules (see further below). The SEM publishes the relevant current scope of application and any special rules at sem.admin.ch.

Nationals of the United Kingdom no longer fall within the scope of application of the AFMP following the United Kingdom's withdrawal from the EU. Those who were already resident in Switzerland before the relevant cut-off date retain their acquired rights on the basis of the agreement concluded between Switzerland and the United Kingdom on the acquired rights of citizens (Acquired Rights Agreement). Newly arriving British nationals, by contrast, are subject to the regime for third-country nationals with the admission requirements and maximum numbers applicable to it. The SEM documents the exact cut-off date and the scope of application of the Acquired Rights Agreement.

Registration for EU/EFTA nationals

EU/EFTA nationals do not require a visa to enter Switzerland. For a stay of up to three months, a valid passport or a valid identity card is sufficient, without any further formalities being required. If the stay lasts longer than 90 days — whether for gainful employment, self-employment, study, or in retirement — registration with the cantonal migration authority is required. The obligation to register and the procedure for EU/EFTA nationals follow from the Ordinance on the Introduction of the Free Movement of Persons (VEP/VFP, SR 142.203); the general obligation to register on entry is anchored in Art. 12 FNIA (Federal Act on Foreign Nationals and Integration, SR 142.20).

Registration and deregistration at the place of residence must take place after entry within the period provided for at cantonal level (registration with the residents' registration office of the place of residence; in many places a period of 14 days applies). Only thereafter does the cantonal authority issue the residence permit. Late registration may lead to delays in the permit procedure. The specific registration period and the procedure are governed by cantonal implementing law; binding information is provided by the competent cantonal office.

For registration, the following documents are generally required; the exact list is set by the respective canton:

• valid passport or valid identity card;
• employment contract or proof of self-employment (if applicable);
• proof of sufficient financial means (for persons without gainful employment);
• proof of health insurance cover;
• biometric passport photo (required in individual cantons);
• tenancy agreement or proof of accommodation.

Once the application has been approved, the cantonal migration authority issues the permit in the form of a biometric foreign national identity card in credit-card format. The processing time varies depending on the canton; it should be enquired about with the competent cantonal migration authority.

Health insurance: Anyone subject to the Swiss insurance obligation must in principle register with a health insurer under the Health Insurance Act (KVG, SR 832.10) within three months of taking up residence or commencing gainful employment. Insurance cover applies retroactively from that point in time. An overview of the authorised insurers and the premiums is provided by the official federal office: priminfo.admin.ch.

Permit types for EU/EFTA nationals

EU/EFTA nationals receive the same permit categories as other foreign persons, but the admission requirements are considerably more favourable. At the outset there are usually the L short-term permit and the B residence permit. Unlike for third-country nationals, these permits are not subject to annual maximum numbers.

L short-term permit

The L permit is granted to EU/EFTA nationals who have an employment contract of less than one year or who are staying in Switzerland for another, temporary reason (on short-term stays, see Art. 32 FNIA (Federal Act on Foreign Nationals and Integration, SR 142.20); concretised for EU/EFTA nationals by Annex I Art. 6 AFMP). It applies for the duration of the employment contract and can be extended if gainful employment continues. Where an employment relationship of twelve months or more exists, a B permit may be granted.

B residence permit

The B permit is the ordinary residence permit for EU/EFTA nationals with an employment contract of one year or more, for self-employed persons, and for persons with sufficient means (pensioners, students). For EU/EFTA nationals in dependent employment with an employment relationship of at least one year, Annex I Art. 6 para. 1 AFMP provides for a residence title with a period of validity of at least five years; it is extended as long as the conditions continue to be met. This represents a clear difference from third-country nationals, whose B permit generally applies for one year and is reviewed annually. A more in-depth comparison of the longer-term options can be found in the article on the B permit and the settlement permit.

C settlement permit

The C settlement permit is granted for an indefinite period and is not tied to any gainful employment (Art. 34 FNIA (Federal Act on Foreign Nationals and Integration, SR 142.20)). It is important to note that the AFMP itself does not establish any entitlement to the settlement permit: it is governed by the FNIA and by the settlement agreements that Switzerland has concluded with individual states. As a rule, the settlement permit is granted after ten years of uninterrupted, lawful residence. For nationals of states with which a corresponding settlement agreement exists, it can be granted after five years; in the case of successful integration, early granting under Art. 34 para. 4 FNIA may come into consideration. The integration criteria follow from Art. 58a FNIA; the more detailed arrangements and the assessment practice follow from cantonal implementing law and from the information provided by the competent authority.

Gainful employment under the AFMP

The AFMP grants EU/EFTA nationals the right to take up any dependent gainful employment in Switzerland, without the examination of the priority of domestic workers or maximum numbers applicable to third-country nationals coming into application (on the right of residence and access to gainful employment, see Annex I Art. 4 AFMP). Employers do not have to demonstrate that no suitable domestic or already-admitted EU/EFTA worker was available; the priority system applicable to third countries under Art. 21 FNIA (Federal Act on Foreign Nationals and Integration, SR 142.20) does not apply here.

The essential rights include:

• Equal treatment: EU/EFTA employees are entitled to the same working conditions, the same remuneration, and the same social benefits as domestic employees in a comparable position (principle of non-discrimination, Annex I Art. 2 AFMP and Annex I Art. 9 AFMP).
• No maximum numbers: There are no annual maximum numbers for the number of EU/EFTA nationals who can be employed in Switzerland (with the exception of any transitional rules for Croatia, see below).
• Cross-border commuters: EU/EFTA nationals with their place of residence in a neighbouring state can work in Switzerland with a G cross-border permit, provided that they return to their place of residence as a rule daily, but at least once a week (Annex I Art. 7 AFMP).
• Occupational and geographical mobility: Permit holders can change employer, occupation, and canton without an additional permit being required (Annex I Art. 8 AFMP). A change of canton must be notified to the migration authority.
• Part-time work: There are no fixed minimum workloads — part-time work can also establish worker status within the meaning of the AFMP, provided that it concerns an actual and genuine activity.

Self-employment

EU/EFTA nationals have the right, on the basis of the AFMP, to establish themselves as self-employed persons in Switzerland (for self-employed persons, Annex I Art. 12 AFMP). Unlike third-country nationals, who go through a more demanding cantonal permit procedure, EU/EFTA nationals essentially have to demonstrate that the self-employed activity is actually carried out and is economically viable.

For registration as a self-employed person, the authorities generally require proof of the actual commencement of the self-employed activity — for instance through registration with the cantonal compensation fund (AHV), where applicable an entry in the commercial register, as well as evidence of business activity, client mandates, or order volume. The exact documents required are set by the competent cantonal office. Following approval, the cantonal migration authority issues a B permit bearing the annotation "self-employment." A comprehensive presentation of the procedure can be found in the article on self-employment.

Job seeking: the 90-day rule

EU/EFTA nationals may enter Switzerland to seek employment without already having a job offer (on the right of residence of job seekers, see Annex I Art. 2 AFMP). For a reasonable period for job seeking, no residence permit is in principle required for this purpose. The SEM documents the exact time frame and the procedure at sem.admin.ch.

If a position is found within the period, registration must be carried out and the corresponding permit applied for before taking up the activity. If no position is found, Switzerland must be left, unless sufficient financial means and health insurance cover can be demonstrated that permit a longer stay without recourse to social assistance.

Job seekers have no entitlement to Swiss social assistance during the search. Under the coordination rules of social insurance, however, they may, under certain conditions, continue to draw benefits from the unemployment insurance of their state of origin for a limited duration; the procedure provided for this purpose (form U2/PD U2, formerly E303) is governed by the relevant EU coordination provisions.

Coordination of social insurance

One of the most significant effects of the AFMP is the coordination of the social insurance systems between Switzerland and the EU/EFTA states. The legal basis is Art. 8 AFMP in conjunction with Annex II to the AFMP, which declares the relevant EU coordination regulations — namely Regulation (EC) No 883/2004 on the coordination of social security systems, as well as the implementing Regulation (EC) No 987/2009 — to be binding for the Switzerland–EU relationship. Switzerland applies these coordination rules directly on the basis of the agreement; in relation to the EFTA states, a corresponding coordination applies via the EFTA Convention.

The coordination is based on the following principles:

1. Applicability of a single legal order: A person is subject in each case only to the social insurance system of one state, as a rule that of the place of employment.
2. Aggregation of periods: Periods of insurance, employment, and residence completed in one member state are taken into account when assessing entitlements in another state.
3. Export of benefits: Certain benefits — including pensions and certain family allowances — can be paid out regardless of the state of residence.
4. Equal treatment: EU/EFTA nationals are to be treated equally in matters of social insurance as nationals of the host state.

In practice, this means that, for example, years of contributions in Germany are taken into account for Swiss pension entitlement and vice versa. Posted workers may, moreover, remain insured for a limited duration in the social insurance system of their state of origin; the applicable legal order is certified by the A1 document.

Posted workers

The AFMP, in conjunction with the law on services, contains provisions on posted workers — employees who are temporarily posted by their employer from an EU/EFTA state to Switzerland to provide a service (see Art. 5 AFMP). This is flanked by the Federal Act on the Accompanying Measures for Posted Workers (Posted Workers Act, EntsG, SR 823.20). In practice, the following principles apply in particular:

• Short postings or gainful activities of up to 90 working days per calendar year generally require only a prior online notification and no permit.
• Postings exceeding this duration require a formal permit procedure.
• Swiss wage and working conditions must be observed; in sectors with a standard employment contract or a collective employment agreement declared to be of general application, the minimum requirements laid down therein apply.
• Posted workers may remain insured for a limited duration in the social insurance system of their state of origin (A1 certificate).
• For service notifications, the employer must designate a contactable office or representation in Switzerland.

Switzerland enforces its accompanying measures in order to prevent wage undercutting. Tripartite and joint commissions as well as cantonal labour-market authorities carry out checks; in the event of violations, sanctions up to and including service bans are provided for, depending on the facts of the case. The applicable thresholds, notification obligations, and sanctions follow from the Posted Workers Act and from the publications of the State Secretariat for Economic Affairs (SECO).

Croatia: special transitional rule

Croatia joined the EU in 2013; its integration into the AFMP took place via a separate protocol (Protocol III to the AFMP), which provided for time-staggered transitional rules for access by Croatian nationals to the Swiss labour market. These transitional phases were designed to be time-limited from the outset. Whether and to what extent restrictions currently still exist for Croatian nationals depends on the respective state of the transitional rule; the only authoritative and up-to-date information is that of the SEM at sem.admin.ch.

Insofar as a transitional rule applies, the following points typically have to be observed:

• Access to the labour market may be subject to annual maximum numbers — separate from the third-country quota, but limited.
• An examination of the priority of domestic and already-admitted EU/EFTA workers may come into application.
• Wage and working conditions are examined for compliance with the requirements customary in the locality.
• The maximum numbers are set in each case and can be adjusted.
• Self-employment is possible but may be subject to an additional examination.

These transitional measures are time-limited and are reviewed periodically. The respective current state, as well as any maximum numbers, follow from the publications of the State Secretariat for Migration (SEM) at sem.admin.ch.

Outlook: popular initiative on immigration

Popular initiatives that demand a numerical limitation of immigration may affect the relationship between Switzerland and the EU and thereby the AFMP. The status and effects of such a proposal — namely adoption, implementation deadline, and concrete impact on the free movement of persons — are open at the time of this presentation and are subject to political and legislative developments. This article takes no evaluative position on this. The respective current state is to be taken from the official sources of the Confederation (in particular admin.ch and sem.admin.ch).

Key points in brief

• EU/EFTA nationals enjoy privileged access to Switzerland through the AFMP — without maximum numbers and without a priority examination (with the exception of any transitional rules for Croatia).
• Registration and deregistration at the place of residence must take place after entry within the period provided for at cantonal level (in many places 14 days); for stays of more than 90 days, a permit is required.
• For persons in dependent employment with an employment relationship of at least one year, Annex I Art. 6 AFMP provides for a residence title with a period of validity of at least five years; it is extended as long as the conditions continue to be met.
• Self-employment is open to EU/EFTA nationals without the stricter procedure applicable to third-country nationals.
• The coordination of social insurance ensures, via Annex II to the AFMP, the crediting of contribution periods and the export of certain benefits across the member states.
• Time-limited transitional rules may apply to Croatian nationals; the current state should be enquired about with the SEM.
• Anyone subject to the insurance obligation must register with a health insurer under the KVG (SR 832.10) within three months; overview at priminfo.admin.ch.

Knowledge of one's own rights under the AFMP is a good basis for correctly assessing a move to Switzerland or gainful employment here. The details and the cantonal implementation may, however, vary; binding information is always provided by the competent cantonal migration authority.

Note: This article explains the legal situation in general terms and does not constitute individual legal advice within the meaning of the Federal Act on the Freedom of Movement for Lawyers (Lawyers Act, BGFA, SR 935.61). For an assessment relating to the individual case, please contact the competent cantonal migration authority or a lawyer registered in the bar register.