Federal Council wants to actively control immigration

It is considered one of the core of the new contracts with the EU: the protective clause is intended to protect Switzerland from negative effects of the free movement of people. The Federal Council has now defined when it can be called.

If the immigration increases by several ten thousand people within a year or increasing unemployment massively, the Federal Council must check the appeal of a protective clause in the future. The Federal Council decided on Wednesday. The responsible Minister of Justice Beat Jans explains to the media: « With the protective clause, we can regulate immigration without violating the freedom of the people. » This is legally secured in the new contracts with the EU and therefore an essential progress that Switzerland has achieved in the negotiations.

How does the protective clause work?

The principle is quickly explained: If “serious economic or social problems” occur in Switzerland due to immigration, the Federal Council can activate the protective clause.

If the Federal Council triggered the protective clause, it applies for suitable protective measures from the mixed committee in which the EU and the federal government are represented. If the committee does not reach any agreement, an arbitration court decides on both sides. If this judges in the interests of Switzerland, the federal government may take measures. However, the EU then receives the right to take proportionate compensation measures as part of the free movement of people.

What happens if the arbitral tribunal rejects Switzerland’s application for protective measures?

Then the Federal Council can still take protective measures independently. In turn, however, the EU should now open up an arbitration proceedings and also issue proportionate compensation measures for other bilateral contracts – with the exception of agriculture.

What measures does the Federal Council want to control immigration?

Federal Councilor Jans named measures when activating the protective clause, the determination of temporary maximum numbers, as is already done when immigration from third countries. A domestic priority is also planned. In addition, the restriction of right of residence in the case of involuntary unemployment or a limited length of stay for the job search is also possible. The protective measures can apply to the entire Switzerland or individual cantons.

Each individual canton should also receive the possibility of applying for triggering the protective clause from the federal government if there are serious problems in this canton as a result of the free movement of people. The Federal Council can check regional protective measures.

What conditions must be fulfilled to activate the protective clause?

Four factors are crucial: if the net immigration from the EU, the number of cross -border commuters, the increase in unemployment or the social welfare rate exceeds a certain value, the Federal Council must check the triggering of the protective clause. The precise threshold values ​​are still to be defined and are determined by regulation.

Because Switzerland wants to explain the freedom of maneuver, such as Vincenzo Mascioli, State Secretary for Migration, explains before the media, further indicators are added: immigration, labor market, social security, housing and traffic.

For example, the Federal Council can also check measures against immigration with increasing storage hours on the local streets or in the event of a falling stock of empty apartments. In any case, Switzerland in the mixed committee must claim that serious economic or social problems are available in the mixed committee.

Where exactly are the threshold values?

The Federal Council proposes exemplary threshold values, but has not yet determined it. He is looking for a middle ground: the call to the protective clause should be checked regularly, but does not necessarily lead to a permanent exam every year.

If the proposed threshold values ​​had already been applied in the past 23 years, the Federal Council should have examined the call to the protective clause eight times. In 2002, 2003, 2009 and 2020, unemployment increased by more than 30 percent compared to the previous year. In 2008 and 2013, the net immigration was too high (more than 0.74 percent), in 2011 and 2022 the number of cross -border commuters increased by over 0.34 percent in terms of employed population.

Only the threshold of the social welfare quota (plus 12 percent social welfare recipient) has never been exceeded since 2002.

What is the difference to the previous system?

The agreement on the free movement of people has contained a protective clause since 2002. « In the event of serious economic or social problems, the mixed committee meets at the request of a contracting party to examine suitable remedial measures, » says Article 14.2.

The problem: only the mixed committee of the EU and Switzerland could decide. Nothing worked without Brussels without the consent. With reference to the very deep unemployment and social welfare rates in Switzerland, the EU Commission always introduced itself to the point of view that there were no serious economic or social problems. The protective clause remained a paper tiger.

According to Jans, Switzerland has a new instrument that allows Switzerland to activate the protective clause and implement measures – without endangering the bilateral contracts.

How does the EU feel a protective clause?

At the beginning of the negotiations, the EU clearly opposed a specified protective clause that Switzerland can activate. The negotiators referred to exceptions to the implementation of the Union Citizens’ Directive, which they had already granted Switzerland. In this way, the country’s EU citizens can continue to be referred if they become delinquent.

In Switzerland, too, it is also limited in Switzerland for permanent residence rights, which is entitled to everyone in the EU after five years of stay: only employed people are entitled to. Phamen in the social welfare dependency of six months or more are not counted in the five years. In this way, immigration to the Swiss social system is prevented.

In the negotiations, Brussels initially took the view that there was either a specified protective clause or exceptions. But the Federal Council insisted on both in the negotiation mandate – and received both. According to reports, it was the EU Commission President Ursula von der Leyen who, after discussions with the then Federal President Viola Amherd, spoke out for a Swiss protective clause.