Implementation of the constitutional article against mass immigration

Constitutional article, free movement of persons

In the autumn and winter session 2016, the Federal Councillors discussed the bill on the implementation of the constitutional article against mass immigration. In its final vote on December 16, 2016, the Federal Assembly passes the act for the implementation of art. 121a of the Federal Constitution (Cst). The new act provides an indirect control of the immigration that is supposed to be compatible with the existing rules on the free movement of persons so as not to jeopardise Switzerland’s bilateral agreements with the EU.

For the implementation of the constitution article, the parliament voted for a three-stage mechanism: (1) the Swiss Federal Council shall be responsible to establish measures for the exploitation of the domestic labour market potential; (2) for occupational groups, fields of action and economic areas where the unemployment rate is above average, there shall be an obligation of the employers to report any job vacancies to the regional employment centres (RAV) first. The RAV will then provide the employers with suitable applications of registered jobseekers and the employer shall invite qualified candidates for job interviews and communicate the result to the RAV. The Swiss Federal Council may provide exemptions of this obligation of registration of job vacancies (e.g. for family business or if the vacancy can be filled with a person that has already worked for the company at an earlier point in time); (3) the Swiss Federal Council shall be entitled to propose additional measures if these measurements will not achieve the intended effect.

Based on the new art. 21a para 3 of the Foreign National Act (FNA), the access on information on the vacant positions shall be restricted for a certain period of time for persons that are registered with the Public Employment Service in Switzerland. As the law stands, all EU/EFTA-nationals who are resident in Switzerland or residing in Switzerland for the purpose of job search as well as any cross-border commuters who were last employed in Switzerland are allowed to register with the Public Employment Service. Since neither the agreement of the freedom of movement nor the relevant EU law requires that persons who are not residing in Switzerland shall be entitled to claim for advice or job placement, the regulation is considered not to violate the agreement of the freedom of movement.

An optional referendum against this provision may be called until 7 April 2017. At present, the Swiss Federal Council is – with the involvement of the parties concerned (cantons, social partners) – working on the respective ordinances for the implementation of Art. 121a Cst.

* Michèle Stutz | Simon Böhi

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