# C_2009003EN.01001101.xml

| 8.1.2009 | EN | Official Journal of the European Union | C 3/11 |
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8.1.2009

EN

Official Journal of the European Union

C 3/11

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Notification by the Swiss Confederation to the European Commission pursuant to Article 37 of Regulation (EC) No 562/2006 of the European Parliament and of the Council establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)

(2009/C 3/06)

I.   Article 4(3) — Penalties for the unauthorised crossing of external borders at places other than border crossing points or at times other than the fixed opening hours

The Swiss Confederation hereby notifies the Commission, pursuant to Article 37, taken in conjunction with Article 4(3), of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), that foreign nationals entering or leaving Switzerland without using an authorised border crossing point shall be liable to a maximum custodial sentence of one year or to a fine (Article 115(l)(d) of the Federal Aliens Act, LEtr; RS 142.20). The court may decide not to prosecute foreign nationals where the return or expulsion order is enforced immediately (Article 115(4) LEtr).

Article 115 LEtr reads as follows:

‘Illegal entry, exit and residence, unauthorised pursuit of gainful employment

1.   A maximum custodial sentence of one year or a fine shall be imposed on persons who:

| (a) | contravene the provisions on entry into Switzerland (Article 5); |
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(a)

contravene the provisions on entry into Switzerland (Article 5);

| (b) | reside in Switzerland illegally, in particular after the expiry of the period of residence for which authorisation is not required or of authorised residence; |
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(b)

reside in Switzerland illegally, in particular after the expiry of the period of residence for which authorisation is not required or of authorised residence;

| (c) | engage in gainful employment without authorisation; |
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(c)

engage in gainful employment without authorisation;

| (d) | enter or leave Switzerland without using an authorised border crossing point (Article 7). |
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(d)

enter or leave Switzerland without using an authorised border crossing point (Article 7).

2.   Foreign nationals shall be liable to the same penalty if, after leaving Switzerland or the transit zone of a Swiss airport, they enter or attempt to effect entry into the national territory of another State in violation of the provisions on entering the country applicable in that State.

3.   Where the offence is committed through negligence, the penalty shall be the fine.

4.   The court may decide not to prosecute, commit to trial or impose penalties on foreign nationals who have entered or left the country illegally where the return or expulsion order is enforced immediately.’

II.   Article 21(c) — Possibility for a Member State to provide by law for an obligation to hold or carry papers and documents

The Swiss Confederation hereby notifies the Commission, pursuant to Article 37, taken in conjunction with Article 21(c), of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), that Swiss law does not require foreign nationals to hold or carry papers and documents.

III.   Article 21(d) — Obligation on third-country nationals to report their presence on the territory of any Member State

The Swiss Confederation hereby notifies the Commission, pursuant to Article 37, taken in conjunction with Article 21(d), of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), that foreign nationals are generally required to report their presence on Swiss territory pursuant to Articles 10 to 17 of the Federal Aliens Act of 16 December 2005 (LEtr; RS 142.20). The following are exempt from this requirement:

| — | foreign nationals not engaging in gainful employment and residing in Switzerland for no more than three months. However, pursuant to Article 16 LEtr, persons providing such persons with accommodation for profit must report them to the competent cantonal authority, |
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foreign nationals not engaging in gainful employment and residing in Switzerland for no more than three months. However, pursuant to Article 16 LEtr, persons providing such persons with accommodation for profit must report them to the competent cantonal authority,

| — | foreign nationals who provide cross-border services or engage in gainful employment in Switzerland at the request of a foreign employer, provided that they pursue their activities for less than eight days per calendar year (Article 14 LEtr and Article 14 of the Ordinance on admission, residence and gainful employment, OASA; RS 142.201). However, persons engaged in the following sectors are required to register and obtain a permit: construction, civil engineering and the finishing industries, catering, the hotel industry, industrial or domestic cleaning, guard and security services, itinerant trades and the sex industry. |
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foreign nationals who provide cross-border services or engage in gainful employment in Switzerland at the request of a foreign employer, provided that they pursue their activities for less than eight days per calendar year (Article 14 LEtr and Article 14 of the Ordinance on admission, residence and gainful employment, OASA; RS 142.201). However, persons engaged in the following sectors are required to register and obtain a permit: construction, civil engineering and the finishing industries, catering, the hotel industry, industrial or domestic cleaning, guard and security services, itinerant trades and the sex industry.

The national legislation relating to Article 21(d) of the Schengen Borders Code is as follows:

Federal Aliens Act (LEtr) of 16 December 2005; RS 142.20

‘CHAPTER 4

Authorisation/permits and notification

Article 10

Authorisation for residence without gainful employment

1.   Foreign nationals may reside in Switzerland without engaging in gainful employment for three months without authorisation unless their visa indicates a shorter period.

2.   Foreign nationals intending to reside for longer without engaging in gainful employment must hold a permit. They must apply for the permit to the authority competent for the intended place of residence before entering Switzerland. Article 17(2) shall apply.

Article 11

Authorisation/permits for residence with gainful employment

1.   Foreign nationals intending to pursue gainful employment in Switzerland must hold a permit, regardless of the length of their residence. They must apply for a permit to the authority competent for the intended place of work.

2.   Gainful employment means any employed or self-employed activity that normally procures a profit, even if carried out free of charge.

3.   For employed activities, the application for a permit shall be lodged by the employer.

Article 12

Obligation to notify arrival

1.   All foreign nationals required to obtain a short-term residence or establishment permit must notify the authority competent for their place of residence or work in Switzerland of their arrival before the end of the period of residence for which authorisation is not required or before the start of the gainful employment.

2.   They are required to notify the authority competent for the new place of residence of their arrival if they move to a new canton or municipality.

3.   The Federal Council shall lay down the period within which arrival must be notified.

Article 13

Procedures for authorising and notifying arrival

1.   All foreign nationals must produce valid identity papers when notifying their arrival. The Federal Council shall lay down exceptions and the recognised types of identity document.

2.   The competent authority may require an extract from the judicial record in the country of origin or provenance or other documents needed for the procedure.

3.   Foreign nationals may not notify their arrival until they are in possession of all the documents required by the authority competent for issuing the permit.

Article 14

Derogations

The Federal Council may adopt more favourable provisions relating to the obligation to obtain a permit or notify arrival, in particular in order to facilitate temporary cross-border services.

Article 15

Obligation to notify departure

Foreign permit holders must notify the authority competent for their place of residence of their departure from Switzerland or if they move to another canton or municipality.

Article 16

Obligation of the provider of accommodation

Persons who provide accommodation to foreign nationals for profit must notify the competent cantonal authority accordingly.

Article 17

Regulations governing residence pending a decision

1.   Foreign nationals who enter Switzerland for a temporary stay and subsequently submit an application for a long-stay residence permit must wait for the decision outside Switzerland.

2.   The competent cantonal authority may authorise the foreign national to reside in Switzerland during the procedure if the admission requirements are clearly met.’

Ordinance on admission, residence and gainful employment (OASA) of 24 October 2007; RS 142.201

‘Article 14

Cross-border gainful activity of not more than eight days

1.   Foreign nationals who provide a cross-border service (Article 3) or engage in a gainful activity in Switzerland on the orders of a foreign employer must possess a permit if they engage in the activity for more than eight days per calendar year.

2.   If the activity lasts for longer than expected, a declaration must be made before the eight-day period expires. Once the declaration has been lodged, the gainful activity may be pursued until the permit is issued unless the competent authority decides otherwise.

3.   Regardless of the length of their residence, foreign nationals must possess a permit if they engage in a cross-border gainful activity in one of the following sectors:

| (a) | construction, civil engineering and finishing industries; |
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(a)

construction, civil engineering and finishing industries;

| (b) | catering, hotel industry and industrial or domestic cleaning; |
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(b)

catering, hotel industry and industrial or domestic cleaning;

| (c) | guard and security services; |
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(c)

guard and security services;

| (d) | itinerant trade within the meaning of Article 2(1)(a) and (b) of the Federal Act of 23 March 2001 on itinerant trade; |
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(d)

itinerant trade within the meaning of Article 2(1)(a) and (b) of the Federal Act of 23 March 2001 on itinerant trade;

| (e) | the sex industry.’ |
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(e)

the sex industry.’

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