¶ FMPA: Amendment Protocol and Key Principles
Source: Dispatch on the Approval of Bilateral III, Chapter 2.3 (pp. 282--325)
PDF Link | Federal Gazette 2025-0749
¶ Summary
The Amendment Protocol to the FMPA (AP-FMPA) constitutes the centrepiece of the update to the Agreement on the Free Movement of Persons. It comprises new substantive provisions, dynamic adoption of law for Annex I, three new additional protocols, twelve joint declarations and one unilateral declaration by Switzerland. The existing articles of the FMPA remain fundamentally unchanged.
¶ Structure of the Amendment Protocol
The AP-FMPA consists of the following components:
| Component | Content |
|---|---|
| Main body | Substantive provisions, scope, new articles |
| Annex I | Dynamic adoption of law (integration method) |
| Additional Protocol 1 | State aid (link with state aid supervision) |
| Additional Protocol 2 | Services (special regulations) |
| Additional Protocol 3 | Social security coordination |
| 12 joint declarations | Interpretive aids and political declarations of intent |
| 1 unilateral declaration | Swiss position on the safeguard clause |
¶ Dynamic Adoption of Law
For Annex I, the integration method of dynamic adoption of law is introduced:
- New EU law is incorporated into the annex if it concerns the scope of application
- The existing articles of the FMPA remain unchanged
- In case of non-adoption, the institutional dispute resolution mechanisms apply
- The Joint Committee decides on the incorporation of new legal acts
¶ Difference from the Static Method
| Aspect | Static (previous) | Dynamic (new) |
|---|---|---|
| Legal adoption | Only through treaty revision | Continuously via Joint Committee |
| Currency | Increasing divergence | Synchronised with EU law |
| Participation | No formal participation | Decision Shaping upstream |
¶ New Articles in the FMPA
The AP-FMPA introduces numerous new provisions:
¶ Establishment and Equal Treatment
| Article | Subject |
|---|---|
| Art. 4a | Right of establishment for self-employed and legal entities |
| Art. 4b | Equal treatment of self-employed with employed persons |
¶ Services
| Article | Subject |
|---|---|
| Art. 5a | General freedom to provide services (90 days / 120 working days per year) |
| Art. 5b--5d | Exceptions and restrictions |
| Art. 5e--5g | Wage protection in service provision |
| Art. 5h--5k | Administrative procedures, notification procedure, controls |
¶ Residence and Cross-Border Workers
| Article | Subject |
|---|---|
| Art. 7a | Cross-border workers (rights and obligations) |
| Art. 7b | Students (residence right, no employment obligation) |
| Art. 7e | Permanent residence right (after 5 years, subject to conditions) |
| Art. 7f | Property acquisition (existing restrictions maintained) |
¶ Sovereign Powers and Protection
| Article | Subject |
|---|---|
| Art. 7c | Public authority (exception from scope) |
| Art. 7d | Public order and security |
| Art. 7h | Removal and criminal deportation |
¶ Safeguard Clause Art. 14a
The safeguard clause is specified in the AP-FMPA:
¶ Activation Mechanism
- Switzerland can activate the clause autonomously -- no EU approval required
- Based on 4 key indicators plus additional exemplary indicators
- Activation is proportionate and time-limited
¶ Key Indicators
- Net immigration from the EU/EFTA area
- Comparative unemployment rate
- Uptake of social benefits
- Wage pressure in specific sectors
¶ Improvement over Mandate
The negotiation result on the safeguard clause exceeds the original negotiation mandate:
- Clearer activation criteria
- Greater autonomy in activation
- Broader range of possible protective measures
¶ Non-Regression Clause
The non-regression clause safeguards the Swiss level of wage protection against regression:
- Switzerland may not lower its protection level below the existing level
- Applies to posting legislation, controls and sanctions
- Creates planning certainty for social partners
- Is formulated unilaterally in favour of Switzerland
¶ Family Reunification
Family reunification is expanded in the AP-FMPA:
| Previous | New |
|---|---|
| Spouse and children under 21 | Additionally: life partners |
| Dependent relatives in ascending line | Additionally: relatives requiring care |
| Strict proof of kinship | More flexible proof options |
¶ Biometric Identity Cards
The regulation on biometric identification:
- 1-year transitional period after entry into force for introduction
- Existing identity cards without chip remain valid
- Applies only to border crossing within the FMPA framework
- No obligation for early replacement
¶ Joint Declarations
The 12 joint declarations concern, among others:
- Interpretation of the safeguard clause
- Relationship to the Posting Directive
- Social security coordination
- Transitional provisions
- Technical adjustments
¶ Key Points
| Topic | Key Message |
|---|---|
| Structure | Main body + Annex I + 3 additional protocols + 12 declarations |
| Legal adoption | Dynamic for Annex I, existing articles maintained |
| New articles | 4a, 4b, 5a--5k, 7a--7h (establishment, services, residence, protection) |
| Safeguard clause | Art. 14a, activable autonomously, mandate exceeded |
| Non-regression | Swiss wage protection level safeguarded against regression |
| Family reunification | Expanded (life partners, relatives requiring care) |
| Biometric ID | 1-year transitional period, existing cards valid |
| Services | 90 days / 120 working days per year |
¶ References
- Dispatch Bilateral III, FG 2025 749, Chapter 2.3 (pp. 282--325)
- Amendment Protocol to the FMPA (AP-FMPA), draft
- Institutional Protocol to the FMPA (IP-FMPA), draft
- Directive 2004/38/EC (Free Movement Directive)
- Directive 96/71/EC (Posting of Workers Directive)