Immigration clause: will the Swiss Abroad become EU hostages?  

European Commission President Ursula von der Leyen with Swiss chief negotiator Patric Franzen in Bern in December 2024. Keystone / Alessandro Della Valle

Under the terms of the new bilateral agreements between Switzerland and the European Union, free movement of people continues as before. But now Switzerland can invoke a safeguard clause to limit immigration if it can show it needs to. Should Bern and Brussels ever lock horns over the clause, the Swiss Abroad would find themselves caught in the middle. 

Free movement of people has turned out to be the main point of controversy in the new bilateral accords between Switzerland and Brussels. The Swiss government freely admits that it’s the price Switzerland has to pay for all the other agreements that bring economic advantages.  

Why did Switzerland insist on a safeguard clause?  

The Swiss government is well aware that immigration will become a hot topic soon enough. From past experience it is apparent that if Bern and Brussels ever get into conflict, it will be over the issue of free movement of people.  

This eventuality was provided for in the new bilateral agreements. Switzerland insisted on a clause allowing it to put a brake on immigration if it needed – and the EU agreed, again not without its own reasons (see the wording in the agreementExternal link on page 21).  

How effective this clause is remains a moot point. To invoke it, Switzerland would have to show that immigration was causing it “serious economic or social problems”, say in terms of rising unemployment, cross-border workers or social welfare claimants.  

What will happen if Switzerland invokes the safeguard clause?  

The procedure is clear enough. What consequences it might have for Switzerland to invoke the clause is another matter.

The process would operate like this: if immigration to Switzerland exceeds the defined limits, the Swiss government can convene an arbitration board. The arbitrators will then decide whether Switzerland is entitled to take compensatory action. In that case, however, the EU has an option to respond. It is entitled to take compensatory action of its own for the disadvantages arising to it from the Swiss notwithstanding clause being invoked.  

How might the EU respond to the invoking of the clause?  

So far, Switzerland has tended to get the worst of it when it failed to meet Brussels’ expectations.   There was a policy of “pinpricks”, namely, small retaliatory measures, which the EU engaged in especially after the Swiss “no” to the proposed framework agreement in 2021.   

Examples of this were not letting Switzerland participate in the Horizon research programme and the Erasmus student exchange programme, as well as delays in approvals for use of Swiss pharmaceuticals in the EU. A bit further back in time, the EU denied Switzerland stock market equivalence.  

How could Swiss Abroad be in the firing line?  

Switzerland protested against these hostile actions on the grounds that they were “irrelevant” and “disproportionate”. Swiss rejection of Brussels’ pinprick approach is now anchored in the agreement itself. There it says – this time in writing – that compensatory measures are to be relevant and proportionate.  

Relevant means as follows: if Switzerland invokes the safeguard clause at some point in the future, any reaction by the EU has to be in terms of free movement of people only. This unity of topics was particularly desired by Switzerland and at least partly achieved.  

But this way the Swiss Abroad in the EU are likely to be in the firing line. They – as well as any Swiss nationals who want to immigrate to the EU – are dependent on free movement of people.  

“One possibility would be that Swiss Abroad might be excluded from particular social welfare benefits in the EU countries they live in.” This was how the Neue Zürcher Zeitung newspaper recently described one possible scenarioExternal link. They might be shut out of unemployment insurance or healthcare benefits, old age pensions, or family allowances.  

How many Swiss nationals would be affected?  

The newspaper quoted Thomas Cottier, a professor emeritus of European law, who said that “the idea is to cause some pain; the measure would affect half a million Swiss abroad.”  

The fact is that 64 % of the 820,000 Swiss abroad live in EU countries, most of them in France, followed by Germany and Italy. But again, most of them are dual citizens – they hold citizenship of an EU country as well as their own.   

Accordingly, this group would not be affected by the counter-measures that might be invoked. The only group open to real pressure would be Swiss residing in the EU without EU citizenship. There are about 118,000 of them, according to 2024 statistics.  

Would retaliatory pressure on the Swiss Abroad have much effect?  

It’s all rather theoretical. The NZZ article says that retaliation against the Swiss Abroad would cause a reaction domestically, “since they have an effective lobby here”.  

But other things speak against it too. First, the EU’s leverage on Swiss political institutions would be only indirect with a retaliatory measure involving no more than 118,000 Swiss Abroad.  

Second, political science professor Marc Bühlmann from the University of Bern cast doubt on the strength of the Swiss Abroad lobby recently in an issue of Swissinfo’s “Let’s talk”. This community is too heterogeneous in its composition, he said, and has too little muscle domestically because of the lack of places where it can cause an obstruction and exert political pressure.   

Even slighter would be the leverage of Swiss nationals who intend to immigrate to an EU country. Immigration to the EU could be made difficult for them or blocked altogether, yet they have no critical mass as a group.   

Swiss net emigration to the EU is only about 6,000 people annually – as opposed to 64,000 for net immigration from the EU and EFTA to Switzerland.  

They negotiated the agreements with Brussels on behalf of Switzerland: Patric Franzen, Chief Negotiator, Helene Budliger-Artieda, Head of Seco, and Ignazio Cassis, Minister for Foreign Affairs (from left to right). Keystone / Alessandro Della Valle

Thirdly, everything seems to relativise itself when you look at the alternatives. Retaliatory action as regards the free movement of people agreement is just one of several possibilities for the EU – and probably not its weapon of choice.  

How would escalation work in the case of the safeguard clause?  

To resolve conflicts, Switzerland and the EU envisage three levels of escalation, as it were. The lowest level is to refer the matter to a committee of both parties, to which each nominates experts. This committee would mainly be called upon to provide interpretation of the existing treaties.  

The second level of escalation would be to refer the matter to an arbitration board again consisting of representatives of both sides. Any measure adopted as part of this process would have to be relevant and proportionate.  

What reaction is more likely from the EU?  

The arbitration board, in the case of the safeguard clause being invoked, may also conclude that the Swiss problems are not due to too much immigration. Or that they are not serious enough.   

In this case Switzerland would have to back-pedal. If, however, Switzerland decides to take control of immigration itself, the EU can opt for the third level of escalation. The “normal” conflict-resolution mechanism would then come into play.  

Here the EU would be able to use all its firepower to pressure Switzerland. “In that situation, the EU could take retaliatory measures under the other internal market agreements too,” Astrid Epiney, an expert on European law at the University of Fribourg told Swissinfo.  

This would hurt Switzerland, especially in areas affecting the Swiss economy or electricity supply. “But only in the internal market agreements, not in areas of cooperation regarding scientific research or refugee policy,” Epiney adds. Agriculture is also explicitly excluded here.  

More pinpricks to come?  

Such retaliation might therefore be as arbitrary as pinpricks. For the first time, though, they would have to be proportionate.  

“There can be argument about what is really proportionate but there is a board of arbitrators now to decide on that,” says Epiney. And in this area the European Court of Justice would not be involved.  

Epiney talks of a “regulated conflict resolution mechanism, which Switzerland did not have before”. In her view, the days of pinpricks are over. “If there is no proper procedure, that always leaves the parties thinking about where they can enforce their interests,” she says. But now that has been dealt with.  

Until now, the Swiss Abroad have been among the staunchest supporters of the bilateral accords, because they have benefited from the free movement of people and are dependent on it. With the new arrangements things get a bit more ambivalent for them. In terms of free movement of people they could also become a target – but probably only in theory.  

Edited by Samuel Jaberg. Adapted from German by Terence MacNamee.