The so-called ‘safeguard clause’ has been a bone of contention between Switzerland and the European Union during the negotiations between the two parties which concluded in December 2024. Now Bern is setting new rules.
As a reminder, the safeguard clause is intended to limit immigration from EU countries into Switzerland to protect the labour market and the country’s social welfare system in the event of a sudden rise of new arrivals from one of the European Union countries. (The same rules apply to other EFTA nations — Norway, Iceland, and Liechtenstein).
During recent negotiations between Switzerland and the EU, however, this provision caused a protracted tug-of-war, with the Swiss insisting on keeping the law intact, while officials in Brussels saying the provision went “a step too far”.
The EU saw it as a violation of the Free Movement of Persons Agreement (AFMP), which has been in effect since 2002.
Brussels particularly objected to Switzerland’s right to invoke this clause unilaterally — that is, without the EU’s consent.
At the conclusion of the latest round of negotiations, the two sides agreed that Switzerland could maintain this clause, but lose the ability to activate it unilaterally; under the new terms, Bern would have to involve Brussels in this decision.
How will Switzerland tackle this issue?
On May 14th, the Federal Council debated this matter at length, defining specific conditions that would allow it to activate the safeguard clause within the AFMP’s framework.
It decided to “temporarily restrict the free movement of persons if immigration from the EU or EFTA causes serious economic or social problems,” the government said in a press release.
The Federal Council may consider activating the clause it if it determines that these difficulties exist throughout Switzerland or in specific regions or sectors.
“To this end, it relies on indicators relating, in particular, to immigration, the labour market, social security, housing, and transportation,” the council said.
Furthermore, the government will also set thresholds for net immigration from the EU as well as for the number of cross-border commuters, the rise in unemployment, and the rate of social assistance use.
“When one of these thresholds is exceeded for all of Switzerland, the Federal Council is required to consider whether to activate the safeguard clause,” the government said.
“Each canton may also request activation of this clause if it faces serious difficulties on its own territory. In this case, the Federal Council may also consider regional protective measures,” according to the press release.
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How will Brussels be involved in this process?
If Switzerland wants to invoke the safeguard clause based on these indicators, it must first contact the CH-EU Joint Committee, whose purpose is to manage and oversee all the bilateral agreements between Switzerland and the European Union.
If Switzerland and the EU cannot reach an amicable agreement within this committee, Switzerland can refer the matter to the European arbitration tribunal. If the latter recognises the difficulties related to immigration, Bern can then take the proposed measures.
And Swiss government may take measures independently even if the tribunal considers that the conditions are not met.
In such cases, “the EU can then initiate arbitration proceedings. It can take countermeasures if the tribunal finds a violation of the Free Movement Agreement,” the Federal Council said, without specifying, however, what these measures may be.
This basically means that Switzerland can still act unilaterally in certain cases, but must be ready to dace as yet undefined consequences.
Also, before activating the safeguard clause, the Federal Council will consult the relevant parliamentary committees, the cantons and the social partners.
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Is this new rule set in stone?
For now it is.
However, it is more than likely than the right-wing Swiss People’s Party (SVP), a staunch opponent of Switzerland’s ties with the EU, will bring this matter to the ballot box, leaving the the final say to the voters.
