Article: Free Movement of Persons Between the EU and Switzerland: Quo Vadis?

Abstract

Relations between Switzerland and the European Union (EU) have been shaped by various (bilateral) agreements. This contribution discusses one of the most important agreements between Switzerland and the EU; the agreement on the free movement of persons (AFMP). The AFMP does not have its own dispute settlement mechanism or supervisory body. Dispute resolution is now left to independent Swiss courts and the Court of Justice of the European Union (ECJ). On 23 November 2018, a first draft of an institutional framework agreement between Switzerland and the EU was published. The aim of this proposed framework agreement was partly to simplify the complex relations between Switzerland and the EU. In May 2021 the Swiss government pulled the plug on the institutional framework agreement because of concerns about migration, labour rights, and worries about the judicial authority the institutional agreement would give to the ECJ. The EC is however clear about what it wants. Amongst others, the dynamic alignment of Swiss law to EU law and a functioning dispute settlement mechanism are issues the EC wants to see solved. In this article the author explores, among other things, what the consequences could be for Swiss fiscal autonomy if Switzerland would follow the EC. The author also reflects in more detail on the ECJ’s case law on frontier workers and the final settlement on capital gains from shareholdings upon emigration to Switzerland. Free movement of persons, Switzerland, taxation, bilateral agreements, Wächtler judgment.