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Source: US Global Legal Monitor

(Oct. 8, 2020) On September 27, 2020, Swiss voters rejected by a vote of 38.29% to 61.71% a popular initiative that would have ended free movement of persons with the European Union (EU). Voter turnout was 59.47%. Free movement of persons is guaranteed by a bilateral agreement that was concluded in 1999 and forms part of a package of seven sectoral bilateral agreements. It provides EU and Swiss citizens with the right to freely choose their place of employment and residence within the territories of the EU and Switzerland.

Background on Swiss–EU Bilateral Agreements

The relationship between the EU and Switzerland is mainly governed by a series of sectoral bilateral agreements, known in Switzerland as “Bilaterals I” and “Bilaterals II.” The first package of agreements was signed in 1999 and covers free movement of persons, technical barriers to trade, public procurement markets, agriculture, research, civil aviation, and overland transport. The second package was signed in 2004 and covers the Schengen/Dublin agreements, the automatic exchange of information (AEOI), the fight against fraud, processed agricultural products, Creative Europe, the environment, statistics, pensions, and education/vocational training/youth. In total, there are over 100 bilateral agreements between the EU and Switzerland. The agreements require Switzerland to implement certain EU legislation, making Switzerland partially integrated into the EU single market despite not being a member of the EU or the European Economic Area (EEA).

Content of the Popular Initiative

The popular initiative “For moderate immigration (Limitation Initiative)” sought to end free movement of persons with the EU. It would have required Switzerland to negotiate with the EU to suspend the agreement and, if no agreement could be reached within 12 months, to unilaterally terminate the agreement within 30 days. However, all the bilateral agreements that are part of the “Bilaterals I” package are linked by a guillotine clause, meaning the remaining six bilateral agreements of the package would have been terminated as well.

In addition, adoption of the initiative would have prohibited Switzerland from entering into new international treaties or other international obligations that award free movement of persons to foreign nationals.

Positions of the Organizers and the Federal Council/Parliament

The organizers of the popular initiative argued that the introduction of free movement of persons with the EU has led to mass immigration to Switzerland, thereby raising social costs and criminality. Furthermore, they contended that Swiss employees, in particular older employees, are being replaced with younger and cheaper foreign workers. They added that they do not intend to end immigration in general or terminate the other bilateral agreements with the EU, but strive to limit immigration to a moderate and reasonable amount. (Explanation Regarding the Popular Vote on September 27, 2020 (Explanation), at 20, 21.)

The Federal Council and the Swiss Parliament on the other hand pointed out that, due to the guillotine clause, Switzerland would lose access to the EU market if the bilateral agreement on free movement of persons was terminated. Market access is particularly important to combat the economic fallout from the coronavirus crisis. A termination of the bilateral agreement would jeopardize the good relationship with the EU and therefore threaten prosperity and put jobs at risk, in the opinion of the Federal Council and Parliament. (Explanation, at 22, 23.)