Brexit – what it could mean and what you should do

The United Kingdom is clearly one of the key drivers of Europe’s financial services industry and London undisputedly takes the crown amongst its financial centers. The surprise vote in Britain to exit from the European Union (“EU”) and as a consequence from its harmonised market raises many questions. This in particular also affects many Swiss financial intermediaries who have so far relied on the UK as their hub of choice for accessing the EU market with their products and services or who have entered into strategic relationships with UK players.

Everything changes. Fundamentally.

First the good news: Irrespective of the Brexit the UK will remain a member of the World Trade Organisation (“WTO”), and as such will continue to be entitled to all benefits of WTO membership regarding international trade in goods and services. But the exit from the EU will of course mean that the UK will in principle no longer be able to enjoy the intra-EU preferential trade benefits or preferential arrangements negotiated between the EU and third countries.

The impact on the regulatory front is expected to be severe as the UK will no longer be subject to the harmonised EU product and service market regulations which, as history has shown in the past few decades, had led to the creation of true dominant designs with significant impact on competitiveness and indeed success in the European financial services arena. As the UK will lose the benefit of the principle that goods sold and services offered in one EU market are presumed to be suitable for sale in others, its industry will depend on successful negotiations of regulatory approvals and mutual recognition policies. For UK-based financial services firms that means that they will lose their current passporting right and hence their ability to undertake EU-cross-border business for example as EU credit institutions, investment firms, alternative investment fund managers or insurance undertakings. This is a situation Switzerland and its financial intermediaries are well familiar with but unlike the Swiss, the UK has little experience with this and is in addition burdened with uncertainty surrounding the details of how this will play out. This may ultimately lead to situations where players if in doubt will opt for the more certain option, which is what we currently already observe with some of our clients who consider moving operations back to Switzerland or in the case of products to other domiciles.

From the perspective of applicable rules it can be expected that EU legislation which has been transposed into the UK framework and is in force will remain applicable until changes are made. When it comes to new EU rules currently under way such as for example MiFID II or PRIIPs, the situation is far less clear. The same is true for EU regulations which so far have become directly applicable and where this modus operandi is now not given any more. This regulatory vacuum and legal uncertainty clearly is the most undesirable situation for financial services firms trying to run efficient regulatory change projects or implement a truly competitive regulatory set-up.

All of this is further amplified by the fact that the UK’s exit from the EU also means that UK citizens will no longer have the right to move freely to work within the EU, and EU citizens no longer have the right to work within the UK, which impacts on firm’s growth strategies which are often built around the ability to deploy key talent. Of course it should not be forgotten that there will also be a negative impact on firms currently doing cross-border business into the UK or via branch structures and on EU products distributed into the UK.

How are Swiss financial intermediaries with UK structures or EU products geared towards the UK affected?

A – Asset Management: Fund Managers and Fund Distribution

Swiss promotors who have launched UK funds qualified as UCITS or EU AIFs will most likely lose the benefit of such status for their products with according impact on their ability to distribute competitively to their respective audiences across the EU. This threat is further amplified by the fact that national private placement regimes for non-EU AIFs are potentially phased out in the near future, which would then potentially even shut that door on them. At the same time EU products of Swiss promotors distributed in the UK may face higher entrance barriers. What is true on product level also applies for institutes. UK UCITS managers, ManCo’s as well as AIFMs will potentially lose their passport, which might be particularly challenging when services are rendered vis-à-vis structures domiciled in the EU. In the AIFMD-context to correct this the UK will require accessing the third country passporting regime based on equivalence of regulation considerations, which effectively puts the UK in the same spot as Switzerland, only that Switzerland is already further advanced in these efforts as the European Securities and Markets Authority (ESMA) has already issued a clean bill of health on behalf of Switzerland last summer. If this should not work out, UK AIFMs would become downgraded to non-EU AIFMs with limited ability to manage EU AIFs and effectively forcing them to seek licensing elsewhere in the EU or contract appropriately licensed service providers to then back-delegate portfolio management to them.

B – Banking and Payment Services

A number of Swiss banking groups also have UK entities and are engaged in providing a broad range of services covering the entire spectrum from investment banking to retail and private banking, and stand-alone wealth management or payment services. As far as these entities are not only dedicated to serving the UK market but also to cater to clients within the EU – either via branches or via cross-border activities – the impact of the Brexit may be significant on such business models as again required status for the provision of services may be lost. Affected passports will clearly be the ones under the Capital Requirements Directive, MiFID and the Payment Services Directive. If branches of UK banks are established throughout the EU, it will likely be necessary to convert them into legal entities and to get them authorised by the competent authorities in target countries with according impact on capital, resource and infrastructure requirements as well as tax consequences.

C – Capital Markets and Insurers

Many UK operations of Swiss financial intermediaries are focused on the offering of securities and in doing so very often benefit from the availability of passports in particular of prospectuses according to the EU Prospectus Directive to cater to all of the EU. Loss of this may significantly impact on business models.

Lastly we would like to point out that also the insurance sector will be impacted by Brexit and the anticipated loss of passports this may likely cause for UK-domiciled entities also of Swiss groups. It should be noted though that already today most Swiss players extensively use Luxembourg, Irish or Liechtenstein solutions or have in the recent past started to transition to these. This will be of lesser relevance to the re-insurance sector but even there an impact may be felt.

Call to action

We have in the past months leading up to the vote worked with various clients on developing response scenarios and the one thing that has become very clear is that in particular the impact in the regulatory sphere is tremendous and that all modifications to existing structures require thorough planning, significant time to implement and also must consider tax consequences. It goes without saying that in all instances overall strategies require revisiting and entire business models may be severely impacted. Uncertainty around the way the Brexit will take effect will continue for some more time but now clearly is the time to put this on the top of the agenda. We are at your disposal and would be most happy to share our insight with you.

Please do not hesitate to contact us.

Formal statement on the rights and status of EU nationals and UK nationals issued by the UK Government

On 11 July 2016, the UK Government issued a statement on the status of EU nationals in the UK post the EU referendum. They have confirmed that “there has been no change to the rights and status of EU nationals in the UK, and UK nationals in the EU, as a result of the referendum”.

The statement goes on to affirm that the formal process for triggering Article 50 will be a decision for the new Prime Minister and that they expect that the legal status of EU nationals living in the UK and also those UK nationals living in the EU to be properly protected.

EU nationals can continue to reside in the UK and those that have spent 5 years working, studying or being self-sufficient in the UK may consider applying for Permanent Residence and thereafter naturalisation as a British citizen.

What this means for you as an employer?

EU nationals can currently continue to reside and work freely in the UK and conversely UK nationals can continue to travel to, work and reside in other EU member countries freely and without restriction.

There have been no other changes to the UK Immigration Rules for non-EEA nationals as a result of the referendum. The exit process from the EU will be a 2 year negotiation period and therefore we do not expect any changes imminently.

There is a big role for businesses to play now to help inform and mould the exit negotiations. Consultation between businesses and the Government will be key in the coming months.

PwC held a client webcast on 5 July 2016 around the next positive steps for our clients following the ‘Leave’ result. A recording of this webcast can be found on:
http://cache.merchantcantos.com/webcast/webcaster/4000/7464/7468/63252/Lobby/default.htm

LegalWebCast

Please do not hesitate to reach out to your usual PwC Legal contact for further details.

New Swiss Citizenship Act (SCA) comes into force on 1 January 2018

On 20 June 2016, the Swiss Parliament voted on the new Swiss Citizenship Act, which will come into force together with the relevant Ordinance on 1 January 2018. The main aim of the new law is to limit the issuance of Swiss citizenship to well-integrated foreign nationals only. Furthermore, the Citizenship Act also aims to harmonise the residence requirements and implement into a law the authorities’ practice.

Please read our latest immigration alert outlining the changes in the Swiss citizenship law that will come into force as of 1 January 2018.

 

PwC has a dedicated immigration team who regularly assist clients with citizenship applications and who will gladly respond to your citizenship-related questions.

 

Your PwC contacts:

Mirela Stoia
PwC Geneva
+41 58 792 91 16
mirela.stoia@ch.pwc.com

Martin Zeier
PwC Basel
+41 58 792 52 74
martin.zeier@ch.pwc.com

Christine Bassanello
PwC Basel
+41 58 792 51 21
christine.bassanello@ch.pwc.com

EU Referendum – Employers Q&A

The UK’s decision to leave the EU will have significant implications for business, and we are already working to support them as these implications become clearer.

Experience has taught us that UK business is adaptable and innovative when confronted with new challenges and opportunities. Nevertheless, there will be significant uncertainty over the coming months as the detailed political and legal issues are worked out, and business confidence may be impacted.

We are committed to helping you navigate through the new political and economic landscape and adapt to changing market conditions.

Read our newsletter to answer the following questions.

  • So what happens following 23 June 2016?
  • What is the position when we exit?
  • What is the position for EU/Swiss nationals in the UK?
  • What are the possible outcomes?
  • Can UK companies still employ EU/Swiss nationals?
  • What is the position for UK nationals in the EU/Switzerland?

 

If you have any further questions please contact Julia Onslow-Cole or Mirela Stoia.

European migration crisis overview

Recent history
For many years, there have been illegal border crossings into the EU. However, the number of irregular migrants started to increase significantly in 2011, following the onset of the Arab spring, when thousands of Tunisians began arriving in Lampedusa and Sub-Saharan Africans fled Libya in the post-Gaddafi era. A further dramatic increase in illegal migration followed in 2014, when instability in Libya, triggered by its second civil war, led to mass departures for Italy. The peak of the migration crisis was reached in 2015, as both migrants and refugees from war-torn countries in Africa, the Middle East and southern Asia sought asylum and safety in Europe. By the end of 2015, over one million refugees and migrants had arrived in Europe by sea or land, according to the International Organization for Migration (IOM).

Current situation
Migrants and refugees have continued to arrive in 2016. Many land in Greece via Turkey and continue their journey through the western Balkans in order to seek asylum in other EU countries. European leaders, having failed to persuade the African governments to take more responsibility for the plight of their people, have been trying to find a solution with Turkey to curtail the flow of migrants. A controversial EU-Turkey Joint Action Plan was signed on 18 March 2016, coming into effect two days later. The plan provides for irregular migrants arriving in Greece from Turkey to be returned to Turkey. Further, for every Syrian returning from Greece, a Syrian based in Turkey will be resettled to an EU country. According to the European Commission, the number of migrants arriving in Greece from Turkey has begun to fall already. The EU-Turkey Statement also provides for the relaxing of visa requirements for Turkish nationals for all participating Member States by no later than the end of June 2016, should Turkey meet all of the requirements of the EU-Turkey Statement.

Future consequences
Not surprisingly, this migration crisis has fed a rise in political populism and xenophobia. Many are calling into question the provisions of the Schengen agreement. Austria, for example, decided on 27 April 2016 to introduce a new restrictive refugee policy, which could include border controls during declared states of emergency, especially at the Italian border.

The UK will hold a referendum on an EU exit (Brexit) in June 2016 – with immigration at the heart of the debate. One consequence of a potential Brexit would be that Britons might require visas to travel and to work in continental Europe. It is possible that a Brexit will increase Euroscepticism in general, serving as a ‘template’ for other EU countries to envisage an EU exit. As no full Member State has ever left the EU, the consequences of a Brexit are unprecedented.

Even though Switzerland saw a decline in the number of new asylum applications in the first quarter of 2016, the Swiss government needs to consider a possible increase in asylum applications in the upcoming months as the situation in conflict regions remains uncertain. An emergency plan has been implemented, which would see the Swiss border control unit reinforcing border controls if there were a dramatic rise in asylum applications or border crossings.

The ultimate consequences of the current migration crisis will remain uncertain until at least June 2016, when the Brexit referendum and the possible relaxation of visa requirements for Turkish nationals will be decided.

What this means for your business travellers
The migration crisis is affecting business travellers in a number of ways:

  1. In some European states, such as Sweden, resources have been reallocated to process asylum applications, which leads to delays in the processing of work permit applications
  2. Travellers may be subject to increased security checks and scrutiny
  3. Security has been tightened at borders and travellers are subject to transit delays (as may be the case in Austria, for example)
  4. EU cross-border workers are now often subject to security checks
  5. Easier movement of Turkish nationals across Europe, if the visa requirements are relaxed in June 2016

***

Other EU migration developments
The visa reciprocity mechanism of the EU aims at facilitating visa-free travel for its citizens to third countries that have been granted an EU/Schengen-wide visa waiver. The US, Canada and Brunei have continued to apply visa requirements to certain EU countries, despite benefiting from the EU-wide visa waver. This may lead to a suspension of the visa waiver programme for nationals of these three countries. While it is expected to solve the non-reciprocity situation with Brunei soon, the discussions with Canada and the US are ongoing. We expect that the European Parliament and Council will make a final decision on this by 12 July 2016, at the latest. As any decision must take into account the economic, political and administrative consequences of the suspension of the visa waiver programme, we consider such a suspension of the visa waiver for US and Canadian citizens as unlikely.

***

Some additional information coming from our network we would like to share with you on this subject:

  • Geopolitical instability, refugee crisis, oil crisis, global economic slowdown – how does it effect global mobility? Peter Clarke, PwC Global Mobility Services Leader Julia Onslow-Cole, Global Immigration Leader and Brynne Herbert, CEO of MOVE Guides talk about trends effecting global mobility: https://vimeo.com/162978778

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PwC Legal will continue to monitor the situation and we will advise our clients on upcoming changes.

No more labour market restrictions for Romanian and Bulgarian nationals as of 1st June 2016

Background
Romanian and Bulgarian nationals locally hired in Switzerland have had limited access to the Swiss labour market over the past few years, as opposed to nationals of other EU /EFTA countries. Until 30th May 2016, only a limited number of management level employees, specialists and other qualified employees from Romania and Bulgaria are admitted to the Swiss labour market after a thorough check of their employment and salary conditions, which must be in line with the Swiss requirements.This means that immigration restrictions and processes are until then very similar to those applying to non-EU/EFTA citizens.

Between 1st June 2015 and 30th May 2016, work permits issued to Romanian and Bulgarian nationals are limited to:

• 11’664 L type permits
• 1’207 B type permits

The above quotas are only relevant for permits valid for more than 4 months or 120 days. All permits valid for up to 4 months or 120 days are quota free.

Please note that as for all other EU/EFTA nationals, in case of assignments (intra-company or project workers), work permits will continue to be issued only to management level employees, specialists and other qualified employees and quotas remain in place for all permits of more than 4 months / 120 days.

No further labour market restrictions as of 1st June 2016

The Swiss Federal Council decided today 13th April 2016 that as of 1st June 2016 restrictions for gainful employment of Romanian and Bulgarian nationals locally hired in Switzerland labour market restrictions will be lifted.

This means that Romanian and Bulgarian local hires, like all other EU/EFTA local hires, will have a legal entitlement to obtain a Swiss work and residence permit upon signature of a Swiss employment contract and they can fully benefit from the agreements on the free movement of persons (FMP).

Caveat: If the number of persons arriving in Switzerland from Romania and Bulgaria from 1st June 2016 until 31st May 2017 is 10% higher than the number of arrivals over the last 3 years,
the Swiss Federal Council may re-introduce work permit quotas for Romanian and Bulgarian nationals, but earliest on 1st June 2017 and the quota may be kept in place for a maximum of two years until 2019.

Please note that this new development is a new stage of the gradual implementation of the FMP concerning Romania and Bulgaria. This has, however, no connection with the implementation of the so called mass immigration initiative, which shall be implemented as of February 2017 and may have a significant impact on the admission requirements and procedures for EU/EFTA and third country nationals. The first draft of the respective law is currently subject to controversial parliamentary discussions and negotiations with the EU, which means that the future Swiss immigration policy remains unclear to a significant extent.

***

PwC will continue to monitor the Swiss immigration authorities’ practice on the federal and cantonal levels very closely, and we will advise all clients on any upcoming changes.

Your PwC contacts

Mirela Stoia
PwC Geneva
+41 58 792 91 16
Mirela.stoia@ch.pwc.com
Martin Zeier
PwC Basel
+41 58 792 52 74
Martin.zeier@ch.pwc.com

Brazilian interest on net equity rules remain unchanged

Brazil_IIOn 30 September 2015, the Executive Branch of the Brazilian government released a Provisional Measure 694/2015 (PM 694), which was supposed to add a new deductibility limitation for interest on net equity (INE) for Brazilian income tax and social contribution tax purposes, and which additionally sought to increase the income tax withholding rate on INE payments to non-resident shareholders.

However, due to lack of action by the Brazilian Congress to convert the provisions of PM 694 into law (in its existing form or with amendments), the PM expired as of 9 March 2016. The expiration was confirmed by a notice released by the Brazilian Senate on the same date.

Hence, as for now, the Brazilian INE rules remain unchanged. However, as it is possible that the proposed amendments will be reintroduced in a future PM, multinational companies that own Brazilian entities should continue to monitor developments related to INE payments.

 

Read more about the PM 694 in our newsletter.

 

If you´re interested in this topic or have any questions connected with it, please feel free to contact our experts:

Daniel Gremaud
Partner, Leader Tax & Legal Romandie
daniel.gremaud@ch.pwc.com
+41 58 792 81 23

Matthias Marbach
Director, Tax & Legal Services
matthias.marbach@ch.pwc.com
+41 58 792 44 76

Studies by PwC on women in business

In connection with International Women’s Day, in the last few days PwC has published three studies on the theme of women in business.

International_Womens_day_1

Modern mobility: moving women with purpose
More women than ever are internationally mobile. But there’s still a major gap between the aims and aspirations of these women and what their employers are offering. The report brings together the views of 134 global mobility executives and 3,937 professionals from over 40 countries.

 

International_Womens_dayPwC Women in Work Index 2016
The index ranks 33 OECD countries according to a benchmark based on key indicators of female economic empowerment: gender pay equality, the rate of female labour force participation (both in absolute terms and by comparison with men), female unemployment, and women in full-time employment. As in previous years, Scandinavian countries top the rankings. Switzerland remains in tenth place.

 

International_Womens_day_2Next Generation Survey 2016: The Female Perspective
This report looks at the perspective of female family business leaders on the basis of a survey of 73 women in 25 countries. Despite the fact that companies with women at board or operational management level often do better, a lot more grassroots work will have to be done if more women are to get the opportunity to take on these roles. The report concludes that one in five women don’t believe they have the same chances of success as men in the family business.

Please contact Charles Donkor or Jasmin Weisshaar if you have any questions.

 

No more work permit quotas available for assignees from EU/EFTA member states

Background
Swiss work permits are limited by quota, as follows:

  • 4’000 L permits for Non-EU nationals
  • 2’500 B permits for Non-EU nationals
  • 2’000 L permits for EU/EFTA assignees
  • 250 B permits for EU/EFTA assignees

Please note that the above quotas are only relevant for permits that are valid for more than 4 months or 120 days. All permits valid for up to 4 months or 120 days remain quota free.

Please note that permits for EU/EFTA citizens locally hired in Switzerland and subject to Swiss social security are not affected, as they are not subject to quota restrictions.

IMPORTANT! The quota for Non-EU work permits is released annually and dispatched to the cantons according to a specific number set in advance. The quota for work permits for EU /EFTA assignees is released quarterly for all of Switzerland.

No quotas left for EU/EFTA assignees until 1 April 2016
There are no more quotas left for assignees from EU/EFTA countries for the 1st quarter of 2016. This means that until 1 April 2016, it will not be possible to obtain new work permits valid for more than four months / 120 days for EU nationals assigned to Switzerland as part of an intra-company assignment or to work on a project at a client site.

Suggestions on how to deal with the current situation

  • For extensions of work permits no quota is required – business as usual.
  • Work permit conversions from a quota free work permit into a longer term work & resi-dence permit will not be possible until 1 April 2016. For such cases, the on-line notifica-tion procedure will likely have to be used in the next 30 days as an interim solution.

New applications for EU/EFTA assignees

  • For all EU/EFTA assignees who need to start to work in Switzerland prior to 1 April 2016, there are the following options: use the on-line notification or obtain 120 day / 4 month quota free work permits;
  • For EU/EFTA assignees who need to start to work in Switzerland as of 1 April 2016, an application for a work permit should be submitted as soon as possible.
  • As EU/EFTA work permits for local hires are not restricted by a quota, we advise, when-ever possible, to switch assignees to a local Swiss employment contract. This implies however the registration of the employee in the Swiss social security system and would result in the individual being subject to Swiss employment regulation

What changes can we expect in the coming months
Generally all work permit applications are increasingly scrutinized by the different immigration authorities involved. Due to cantonal differences and the persistent change in the practice, we highly recommend that companies carefully check the need and requirements for all new se-condments to Switzerland very closely.

We expect further pressure to provide detailed and well drafted applications that outline the specific need for each assignment and the economic benefit thereof for the company and the Swiss canton where the employee will be assigned. Therefore we kindly ask that you support us to obtain the required information, as detailed and specific as possible, on any upcoming as-signments.

PwC will continue to monitor the Swiss immigration authorities on federal and cantonal level very closely, and will continue to have close discussions with the various authorities involved. We will advise all clients on any upcoming changes and we will keep you updated throughout of any impending amendments.

Your PwC Contacts:

Mirela Stoia
PwC Geneva
+41 58 792 91 16
Mirela.stoia@ch.pwc.com
Martin Zeier
PwC Basel
+41 58 792 52 74
Martin.zeier@ch.pwc.com

Immigration alert: Current practice of the Zurich Labour authority

Background

On 9 February 2014, voters in Switzerland approved a new constitutional provision (art. 121 a Federal Constitution; Cst) by a slim majority of just over 50 percent.

After the acceptance of this provision (even though it will only come into force in February 2017), we have observed that certain cantonal immigration authorities are applying increasingly stringent practices, in particular the Zurich Labour authority (hereafter ‘AWA’). The main reasons for this, as communicated to us by the AWA, are the lower quotas available compared with 2014 and the more stringent practice implemented by the Federal authority (‘SEM’).

As a reminder, the work permit quotas for Non-EU nationals and for assignees (i.e. posted workers) from EU/EFTA countries for the whole of 2016 are limited to:

  • 4,000 L permits for Non-EU nationals
  • 2,500 B permits for Non-EU nationals
  • 2,000 L permits for EU/EFTA assignees
  • 250 B permits for EU/EFTA assignees

The above quotas are only relevant for permits that are valid for more than four months or 120 days. All permits valid for up to four months or 120 days remain quota free.

Please note as well that permits for EU/EFTA citizens working on a local Swiss contract and subject to Swiss social security are not affected, as they are currently not subject to a quota. This may change when the new constitutional provision mentioned above will come into force in February 2017.

IMPORTANT! The quotas for Non-EU nationals are issued annually and distributed among the cantons according to a predetermined number. The quotas for EU/EFTA assignees are issued each quarter Switzerland-wide.

 

Key points of AWA’s current practice

 1. PROJECT ASSIGNEES

1.1. Change of project with a valid Swiss work permit

In Zurich it is no longer possible to obtain approvals for a change of project for assignees (EU/EFTA or Non-EU nationals) who already have a valid work permit for a (different) project in Zurich or in another canton. The AWA does not differentiate between a quota-free four-month/120-day work permit and a permit subject to a quota (e.g. L type) valid for 12 months.

Example: Mr Smith, a UK national employed by company X, has a valid work permit for a project that is being run at the premises of company A in Zurich. After a few months, he is required to work as a project manager on a different project at the premises of company B. The employment conditions are unchanged: he is highly qualified (he has a university degree and between five and ten years’ work experience) and is paid a salary over CHF 10,000 per month. He also has the specific know-how as a project manager required for the project at company B. According to its current practice, the AWA would not approve such a change of project, even if company X cannot find another person in its pool of specialists to do this job and company X has an obligation to deliver this critical project for company B.

The only exceptions to the above practice are:

  1. If one and the same project is being run in several cantons, the canton of Zurich may approve the assignee’s employment in Zurich on this one project.
  2. Only when a project is definitively concluded (‘nachweislich beendet’) is it possible to request a change of project for the remaining days available on the currently held permit. This means, for example, that if the assignee has a valid work permit until May 2016 to work on project A, but project A finishes in February 2016, his/her reassignment to a different project in February and May 2016 may be approved. However, if the assignee finishes his/her project-related tasks in February 2016, but the project itself is not finished, he/she cannot be reassigned to work on another project in the canton of Zurich from February till May 2016.

If one of the two conditions above are fulfilled, the employer may submit a complete application to the AWA, as for a totally new case and the AWA may approve the application. In practice, this means: 1) a few days to gather the required documents; 2) a few hours to prepare a new application letter and file the application and 3) around two to three weeks’ processing time.

Please note that in other cantons in Switzerland, a change of project is still possible for assignees with a valid work permit if there are substantial reasons. Approval for a change of canton may be obtained by communicating the new work location to the authority in question and confirming that the employment conditions are unchanged.

1.2. Contracts (SOW vs. MSA)

Previously in Zurich and currently in other cantons, a master services agreement (MSA) or a confirmation letter covering the main contractual points and signed by the Swiss client at whose premises the project takes place as well as by the company providing the services is considered as sufficient proof for approving a work permit application for a project assignee. Work permits are issued/extended by the relevant labour authorities (with the exception of the AWA in Zurich) on the basis of such an MSA or confirmation letter.

As per its current practice, the AWA only approves applications for project assignees if the applications are accompanied by a statement of work (SOW) duly signed by both parties. Permits are strictly limited to the duration of the SOW.

Example: If the SOW is valid until 31 December 2015, the work permits will be valid only until this date. The AWA does not consider as sufficient either an MSA duly signed by all parties and stipulating that the project will last until (for example) March 2017 or a confirmation letter signed by the company at whose premises the project takes place confirming that the project will effectively last until March 2017.

2. INTRA-COMPANY ASSIGNEES (Non-EU nationals)

The main conditions relating to intra-company assignments Switzerland-wide are:

  • minimum 12 months’ work experience with the group before being transferred to Switzerland;
  • limited duration of employment in Switzerland (generally up to three or four years);
  • highly specialised employee (at least a university degree, several years’ experience in a specific area and the job in Switzerland must correspond to the employee’s specific know-how and experience) or a member of executive management;
  • employment conditions in Switzerland must be in line with those of a Swiss employee with a similar educational and professional background in a similar trade/profession and in the same location; and
  • further conditions, such as overall economic interest, appropriate housing, etc.

According to the current practice of the AWA, only management employees with oversight or leadership responsibilities may be transferred to Switzerland on the basis of a Swiss employment contract. For employees on a lower hierarchical level, the priority of local workforce must be respected (see point 3 below). Highly specialised employees may only obtain a Swiss work permit (provided all of the above conditions are fulfilled and the work permit quota is not exhausted) if they are assigned to Switzerland. This means that:

  • the employees remain in foreign employment throughout the duration of the assignment;
  • they are issued an assignment contract covering their employment conditions during the assignment; and
  • all costs in relation to the assignment, including travel, housing and meal expenses must be borne by the employer. The housing and meal expenses amount to at least CHF 3,000 per month or CHF 36,000 per year and must be paid on top of a gross salary amount that is in line with the Swiss salary requirements.

Please note that the AWA strictly limits all work permits issued to assignees to 48 months. With very few exceptions, a work permit for an assignee cannot be extended beyond 48 months and the employee cannot be ‘localised’ (i.e. switched to a Swiss employment contract) either. Hence, in principle, the employee must leave Switzerland after 48 months.

3. LABOUR MARKET SEARCH

As best practice, prior to hiring a new employee, all companies are, in principle, required to perform a labour market search to ensure there is no person with the required skills available in the Swiss/EU labour market. This labour market search is a legal requirement when applying for a work and residence permit for a Non-EU national.

According to the AWA’s practice, a job ad should be placed for around three to four months on the cantonal job centre’s website and on at least two internet websites that are publicly accessible (i.e. internal company websites are not accepted). The job ad must be placed explicitly for the specific job in question. The job ad is carefully scrutinised and a general ad is no longer accepted.

4. NO FAST TRACK PROCEDURE

The AWA does not currently have a ‘fast track procedure’. Furthermore, the AWA does not differentiate between various types of cases (e.g. ‘normal’, ‘urgent’, ‘very urgent’, ‘VIP’). This means that AWA processes each case according to its filing date. In principles, no exceptions are made.

The AWA’s standpoint is that, in order to avoid discrimination, the AWA does not offer any preferential processing. Hence, the AWA processes applications according to its ‘normal processing time’, which may vary between ten days and three weeks depending on the workload of the competent officer.

A fast track procedure is currently not planned.

Conclusions and suggestions for dealing with the current situation

Although Swiss immigration law might seem fairly simple compared with that of other countries, the practice of the Swiss authorities may be challenging, as outlined in the above examples. Furthermore, the practice may vary from location to location and it is continuously evolving.

The PwC Immigration Team is in daily contact with the AWA and all the other cantonal labour authorities Switzerland-wide. We monitor very closely any changes in the authorities’ practices and challenge certain problematic practices, whenever possible. We develop suggestions, workarounds and options to deal with issues. Moreover, we push for the use of fast track processes where these are feasible

Given the differences between the various cantons and continuous changes in practices, we recommend that companies check carefully their requirements for new secondments to Switzerland.

We expect the labour authorities will apply further pressure to provide detailed and well drafted applications outlining the specific need for each assignee and the economic benefits to both the company and the canton in which the employee will be assigned. Therefore, we kindly ask that you support us in obtaining as quickly as possible the detailed and specific information required for your upcoming assignments.

PwC will continue to monitor very closely the Swiss immigration authorities at federal and cantonal levels and continue our discussions with them. We will update and advise you on any upcoming changes.

 

Your PwC contacs

Mirela Stoia
Senior Manager
PwC Geneva
+41 58 792 91 16
mirela.stoia@ch.pwc.com
Martin Zeier
Director
PwC Basel
+41 58 792 52 74
martin.zeier@ch.pwc.com