¹ This Ordinance lays down the implementing rules for the HSA. It determines in particular:

a.

the scope of the privileges, immunities and facilities which may be granted to the different types of institutional beneficiary concerned;

b.

the conditions of entry, residence and work on Swiss territory for individual beneficiaries;

c.

the procedure for the acquisition of land and buildings by institutional beneficiaries;

d.

the rules governing the granting of financial subsidies and other support measures.

² The conditions of entry, residence and work for private household employees are laid down in the Ordinance of 6 June 2011² on Private Household Employees.³

A permanent mission or other representation to intergovernmental organisations means in particular:

a.

the permanent missions to the United Nations Office or to other intergovernmental organisations, including the permanent missions to the World Trade Organization;

b.

the permanent representations to the Conference on Disarmament;

c.⁴

the permanent delegations of institutional beneficiaries under Article 2 paragraph 1 letters a, b, i and k HSA at intergovernmental organisations;

d.

observer bureaux.

A special mission within the meaning of the Convention of 8 December 1969⁵ on Special Missions includes:

a.

temporary missions composed of representatives of a State sent to Switzerland in accordance with Article 2 of the Convention of 8 December 1969 on Special Missions;

b.

temporary missions composed of representatives of States in connection with meetings between two or more States in accordance with Article 18 of the Convention of 8 December 1969 on Special Missions;

c.

temporary missions composed of representatives of a State and of non-State representatives in connection with the exercise of Swiss good offices.

A principal individual beneficiary is an individual beneficiary as referred to in Article 2 paragraph 2 letters a and b, HSA.

Members of local staff are persons employed by a State to perform official duties within the meaning of the Vienna Convention of 18 April 1961⁶ on Diplomatic Relations, the Vienna Convention of 24 April 1963⁷ on Consular Relations, or the Convention of 8 December 1969⁸ on Special Missions, but who do not form part of the transferable staff of the sending State. These persons may be nationals of the sending State or of another State. They generally perform the duties of service staff within the meaning of the aforementioned Conventions but may also perform other duties referred to in those Conventions.

¹ When crossing the border to take up his or her duties, an individual beneficiary must be in possession of a recognised identity document and, where applicable, a visa.

² A request must be made to the FDFA by the institutional beneficiary concerned in order for the individual beneficiary to be allowed take up his or her duties.

¹ The FDFA shall issue legitimation cards to the following persons:

a.

members of the staff of institutional beneficiaries established in Switzerland who are entitled to privileges and immunities and persons entitled to accompany such persons;

b.

members of the staff of institutional beneficiaries established in Switzerland who are not entitled to any immunities, and persons entitled to accompany such persons, provided the institutional privileges include an exemption from the residence requirements under Article 3 paragraph 1 letter i HSA and provided the persons are not Swiss citizens and that on commencement of their employment they did not hold a valid residence permit, permanent residence permit or cross-border commuter permit.

² It shall determine the additional requirements for issuing the card and various forms of legitimation cards.

³ The legitimation card issued by the FDFA serves as a residence permit for Switzerland, confirms any privileges and immunities to which the holder is entitled and exempts the beneficiary from the visa obligation for the duration of his or her official duties.

⁴ Beneficiaries holding a legitimation card issued by the FDFA who are not Swiss citizens are exempted from the obligation to register with their cantonal residents' registry. They may however register voluntarily.

¹ Institutional beneficiaries are entitled, in accordance with international law, to determine the terms of employment of their staff.

² Members of diplomatic missions, of consular posts, of permanent missions or other representations to intergovernmental organisations and of special missions who are Swiss nationals or are permanently resident in Switzerland at the commencement of their function are subject to Swiss employment law. Any choice-of-law clause providing for the application of the law of a foreign State shall have effect only to the extent permitted under Swiss law.

³ Members of the local staff of diplomatic missions, of consular posts, of permanent missions or other representations to intergovernmental organisations, and of special missions, are subject to Swiss employment law irrespective of where they were engaged. A choice-of-law clause providing for the application of the law of a foreign State is possible if permitted under Swiss law. If a member of the local staff is a national of the sending State and was engaged in that State, the employment relationship may be made subject to the law of the relevant State.¹⁶

Insofar as the institutional beneficiary as employer is not, under international law, subject to obligatory Swiss social security legislation and the members of the staff of the institutional beneficiary are not subject to that legislation, the institutional beneficiary shall determine the social protection arrangements for its staff in accordance with international law and shall operate a social security scheme of its own.

¹ The following persons are entitled to accompany the principal individual beneficiary and enjoy the same privileges, immunities and facilities if living together in the same household:

a.

the spouse of the principal individual beneficiary;

b.

the same-sex partner of the principal individual beneficiary if the partnership has been registered in Switzerland or under an equivalent foreign provision or if the partner is treated by the institutional beneficiary concerned as an official partner or as a dependent;

c.

the cohabiting partner of the principal individual beneficiary (which within the meaning of Swiss law is a person of the opposite sex not married to the principal individual beneficiary) if the cohabiting partner is treated by the institutional beneficiary concerned as an official partner or as a dependent;

d.

the unmarried children up to the age of 25 of the principal individual beneficiary;

e.

the unmarried children up to the age of 25 of the spouse, or of the same-sex partner, or of the cohabiting partner, if officially in that person's care.

² The following persons may, by way of exception, be authorised by the FDFA to accompany a principal individual beneficiary if they live together in the same household; they shall be issued with a legitimation card but shall not be accorded privileges, immunities or facilities:

a.

the same-sex partner of the principal individual beneficiary if he or she is not recognised by the institutional beneficiary concerned as an official partner or as a dependent but the application for a residence permit is nonetheless submitted by the institutional beneficiary and the relationship can be shown to be long-standing, and if it is not possible for the couple to register their partnership under Swiss law or under the law of another State;

b.

the cohabiting partner of the principal individual beneficiary if the cohabiting partner is not recognised by the institutional beneficiary concerned as an official partner or as a dependent but the application for a residence permit is nonetheless submitted by the institutional beneficiary and the relationship can be shown to be long-standing;

c.

the unmarried children over the age of 25 of the principal individual beneficiary if they are in his or her sole care;

d.

the unmarried children over the age of 25 of the spouse, or of the same-sex partner, or of the cohabiting partner, if they are in the principal individual beneficiary's sole care;

e.

the ascendants of the principal individual beneficiary or of his or her spouse, same-sex partner, or cohabiting partner within the meaning of paragraph 1, if they are in the principal individual beneficiary's sole care;

f.

in exceptional cases, other persons in the sole care of the principal individual beneficiary if it is not possible for them to be entrusted to the care of a third party in the country of origin (cases of force majeure).

^2bis An exemption from the requirement of living in the same household with the principal individual beneficiary may be granted:

a.

to persons under paragraph 1 letters d and e and 2 letters c and d: if they are resident abroad for the purpose of their studies;

b.

to persons under paragraphs 1 and 2: on application by the relevant institutional beneficiary for a maximum duration of one year if the principal individual beneficiary who is employed by an institutional beneficiary under Article 2 paragraph 1 letters a, b and i HSA moves to a place of work for professional reasons where the constant presence of their family is not possible or desirable for security reasons and the family must for these reasons forgo living together;

c.

to persons under paragraph 1 letters a and b: during the divorce, separation, or marriage protection or proceedings for the judicial dissolution of the registered partnership of the principal individual beneficiary; during this period living in the same household is not required either for children under paragraph 1 letters d and e if they are in the custody of the relevant person under paragraph 1 letter a or b, or for children under paragraph 2 letters c and d; the provisions of Swiss tax law remain reserved.¹⁷

³ Private household employees may be authorised by the FDFA to accompany a principal individual beneficiary if they satisfy the requirements laid down in the Ordinance of 6 June 2011¹⁸ on Private Household Employees.¹⁹

⁴ Authorisation for the persons referred to in this Article to accompany a principal individual beneficiary must be sought prior to the entry into Switzerland of such persons.

⁵ The FDFA shall determine case by case whether a person wishing to accompany a principal individual beneficiary satisfies the requirements of this article. All questions arising therefrom shall be resolved in accordance with diplomatic practice between the FDFA and the institutional beneficiary concerned and without the individual beneficiary being involved in any way.

¹ Persons who are called to act in an official capacity at an institutional beneficiary must as rule perform their official duties on a full-time basis. This is without prejudice to the special provisions governing honorary consuls under the Vienna Convention of 24 April 1963²⁰ on Consular Relations, and those governing persons whose duties are limited to a specific mandate, such as lawyers engaged in proceedings before international courts or arbitration tribunals.

² Persons who are called to act in an official capacity at an institutional beneficiary may, by way of exception, be authorised by the relevant cantonal authorities to carry out a secondary gainful activity for up to ten hours a week, provided that they are living in Switzerland and the activity concerned is not incompatible with the performance of their official duties. The decision of the cantonal authorities shall be taken in agreement with the FDFA.

³ Teaching a specialised subject may, in particular, constitute an acceptable secondary activity, but any activity of a commercial nature, inter alia, shall be deemed incompatible with the performance of the person's official duties.

⁴ Persons who are called to act in an official capacity at an institutional beneficiary and who engage in a secondary gainful activity do not enjoy privileges or immunities of any kind in respect of that activity. In particular, they have no immunity from criminal, civil and administrative proceedings or from execution of any judgment or sentence arising in relation to the secondary gainful activity.²¹

⁵ Such persons are subject to Swiss law in relation to the secondary gainful activity; in particular, unless otherwise provided for under a bilateral convention on social security, in relation to the secondary gainful activity they are subject to the Swiss legislation on:

a.

old-age, survivors' and invalidity insurance;

b.

accident insurance;

c.

loss of earnings compensation;

d.

family allowances;

e.

unemployment insurance; and

f.

maternity insurance.²²

⁶ Income from the secondary gainful activity must be taxed in Switzerland unless a bilateral double taxation agreement provides otherwise.²³

¹ The following persons have facilitated access to employment in Switzerland for the duration of the function of the principal individual beneficiary if they are entitled, in accordance with Article 20 paragraph 1, to accompany the principal individual beneficiary and if they are living in Switzerland and in the same household as the principal individual beneficiary:

a.

the spouse of the principal individual beneficiary within the meaning of Article 20 paragraph 1 letter a;

b.

the same-sex partner of the principal individual beneficiary within the meaning of Article 20 paragraph 1 letter b;

c.

the cohabiting partner of the principal individual beneficiary within the meaning of Article 20 paragraph 1 letter c;

d.

the unmarried children of the principal individual beneficiary, within the meaning of Article 20 paragraph 1 letter d if they entered Switzerland as authorised accompanying persons before the age of 21; they are entitled to facilitated access to employment until the age of 25, after which they must take the necessary steps to ensure that their residence and employment situations are in accordance with the legislation governing the residence and establishment of non-nationals;

e.

the unmarried children of the spouse, same-sex partner or cohabiting partner, within the meaning of Article 20 paragraph 1 letter e if they entered Switzerland as authorised accompanying persons before the age of 21; they are entitled to facilitated access to employment until the age of 25, after which they must take the necessary steps to ensure that their residence and employment situations are in accordance with the legislation governing the residence and establishment of non-nationals.

² To facilitate their access to employment, the FDFA shall, on request, issue to the persons referred to in paragraph 1 a document certifying to potential employers that the individual concerned is not subject to the quota on foreign workers, or to the principle of priority recruitment areas, or to labour market regulations (principle of priority preference for residents, and ex ante vetting of pay and conditions).

³ Persons within the scope of paragraph 1 who engage in gainful activity shall, on submission of a contract of employment, an offer of employment, or a declaration to the effect that they intend to engage in a self-employed activity together with a description of that activity, be issued by the cantonal authority concerned with a special residence permit, known as a 'Ci permit', in place of their legitimation card. A self-employed activity may be carried out only after the Ci permit-holder has been authorised by the competent authorities to carry out the profession or occupation in question.

⁴ Persons within the scope of paragraph 1 who engage in gainful activity in Switzerland are subject to Swiss law in relation to that activity. In particular, they enjoy no privileges or immunities in relation to that activity.²⁴

⁵ Unless a social insurance agreement provides otherwise, they are subject to the Swiss legislation on:

a.

old-age, survivors' and invalidity insurance;

b.

accident insurance;

c.

loss of earnings compensation;

d.

family allowances;

e.

unemployment insurance; and

f.

maternity insurance.²⁵

⁶ Income from the secondary gainful activity must be taxed in Switzerland unless a bilateral double taxation agreement provides otherwise.²⁶

⁷ The FDFA shall otherwise regulate implementation in consultation with the State Secretariat for Migration.²⁷

¹ Without prejudice to the privileges, immunities and facilities arising directly under international law, the Federal Council shall determine case by case the privileges, immunities and facilities to be granted to institutional beneficiaries and persons who are called to act in an official capacity at such institutions, to eminent persons carrying out an international mandate, and to the persons referred to in Article 20.

² The FDFA is empowered to grant privileges, immunities and facilities and to enter into international agreements for that purpose, where the duration of the institutional beneficiary's activity does not exceed one year to:

a.

special missions, persons called to act in an official capacity at such special missions, and persons entitled to accompany such persons;

b.

international conferences, persons called to act in an official capacity at such international conferences, and persons entitled to accompany such persons.

¹ Diplomatic missions, consular posts, and permanent missions or other representations to intergovernmental organisations, the members of such representations and persons entitled to accompany such members become automatically entitled in accordance with international law and international practice to privileges, immunities and facilities on being authorised by the FDFA to establish themselves in Switzerland.

² The privileges, immunities and facilities of the following institutional beneficiaries, of the persons called to act in an official capacity at such institutional beneficiaries, and of the persons entitled to accompany such persons are granted by way of an agreement to that effect entered into between the Federal Council and the institutional beneficiary concerned, or exceptionally by unilateral decision of the Federal Council:²⁸

a.

intergovernmental organisations;

b.

international institutions;

c.

quasi-governmental international organisations;

d.

secretariats or other bodies established under an international treaty;

e.

international courts;

f.

arbitration tribunals.

³ The privileges, immunities and facilities of the following institutional beneficiaries, of the persons who are called to act in an official capacity at such institutional beneficiaries, and of the persons entitled to accompany such persons are granted by way of a unilateral decision of the Federal Council or of the FDFA or by way of an agreement to that effect entered into between the Federal Council or the FDFA and the institutional beneficiary concerned:

a.

special missions;

b.

international conferences;

c.

independent commissions;

d.

other international bodies.

⁴ The privileges, immunities and facilities of eminent persons carrying out an international mandate are granted by way of a unilateral decision of the Federal Council.

¹ Any application for permission to acquire land or buildings shall be submitted to the FDFA by the acquiring party or its agent, with a copy to be sent to the competent authority in the canton concerned.

² The application must include the following particulars and documents:

a.²⁹

the draft contract of acquisition, meaning in particular a draft purchase contract, a purchase option contract, a long-term lease, a signed preliminary contract or a deed of gift;

b.

the purpose of acquisition (residence of head of mission, secretariat of representation, head office of organisation, etc.);

c.

a description of the property, to include in particular the area of the land and of the building; in the case of a vacant site or a proposed extension of an existing building, the area proposed to be built upon must also be indicated;

d.

a list of the properties in Switzerland already owned by the institutional beneficiary, a description of such properties including in particular the area of the land and buildings concerned and the use of same.

³ The net habitable area of any building intended for residential use may not as a rule exceed 200 m².

⁴ The FDFA may impose conditions in respect of an acquisition of property. In particular, it may require reciprocity if the acquiring party is a foreign State acquiring a property for the official needs of its diplomatic mission, consular posts, or permanent missions to intergovernmental organisations in Switzerland.

The FDFA shall issue its decision after receiving the opinion of the canton concerned.

¹ The Federal Council shall decide on financial subsidies and other support measures with a foreseeable cost exceeding CHF 3 million in the case of a one-off measure, or CHF 2 million per annum in the case of a recurring measure.

² The FDFA:

a.³⁰

shall decide on one-off financial subsidies and in-kind subsidies not exceeding CHF 3 million;

b.

shall decide on recurring financial subsidies and in-kind subsidies of a maximum duration of 4 years and not exceeding CHF 2 million per annum;

c.

may fund international conferences in Switzerland;

d.

may enter into international treaties to that end.

¹ The procedure for granting financial subsidies and other support measures is laid down in respect of each appropriation during the authorisation process.

² The procedure for the payment of due compensation to the cantons for the cost of giving effect to Article 20, letter f, HSA is laid down in agreements to be entered into with each canton concerned. The FDFA shall be authorised to enter into such agreements. It indicates in the agreement that, where applicable, the relevant credits are subject to approval by Parliament.

International non-governmental organisations (INGOs) wishing to benefit from the measures provided for under federal legislation, in particular the tax exemption provided for by the Federal Act of 14 December 1990³¹ on Direct Federal Taxation and the facilitated employment of foreign staff provided for under Swiss legislation, must satisfy the relevant statutory requirements and submit an application to the competent authority designated by the relevant statute.

¹ In addition to the powers provided for in the specific provisions of this Ordinance, the FDFA shall:

a.

negotiate the agreements to be entered into pursuant to the HSA or this Ordinance, in consultation with the bodies concerned;

b.

be the authority responsible for implementing the agreements on privileges, immunities, facilities, and financial subsidies and other support measures, without prejudice to the specific powers of other federal bodies;

c.

regulate the details of the implementation of this Ordinance without prejudice to the specific powers of other federal bodies;

d.

supervise compliance with the terms of the privileges, immunities and facilities; to this effect it shall take all appropriate measures in accordance with international practice; on finding an instance of abuse it may revoke a natural person's privileges, immunities and facilities where such a measure is proportionate with the objectives;

e.

determine case by case whether a person is to be deemed an 'individual beneficiary' within the meaning of Article 2 paragraph 2 letters a and c HSA and issue the appropriate legitimation cards to eligible persons;

f.

determine the length of the courtesy period that may be allowed to an individual beneficiary at the end of his or her period of service;

g.

direct the Federal Security Service to instruct the relevant police authorities to implement the further security measures referred to in Article 20 letter f HSA;

h.

enter into the bilateral agreements necessary to secure for the members of the diplomatic missions, the permanent missions or other representations to intergovernmental organisations and of the consular posts of Switzerland abroad the same privileges, immunities and facilities as are accorded to foreign representations of the same category in Switzerland.

² The FDFA shall adopt rules regulating its own internal allocation of responsibilities.

The amendment of current legislation is regulated in the Annex.

This Ordinance comes into force on 1 January 2008.