The Federal Council has passed draft legislation which increases
the sanctions for airlines which allow foreign passengers to fly
without sufficient travel documents (eg, passport, visa or permit
to stay) to enter the Swiss territory. The proposed legislation is
intended to reduce the number of people who arrive in Switzerland
with insufficient identification. In 2011 a violation of the
regulations was reported in almost 1,000 cases. Under the existing
legislation, however, sanctions are difficult to impose. This is
because in most cases it is practically impossible (with reasonable
effort and measures) to prove that an airline has violated the
standard of care, in particular at the airport of departure.
The legislation applies to airlines which transport passengers
from an airport of departure outside the Schengen Area to a Swiss
Among other things, the proposed legislation would shift the
burden of proof to the airline, which would be required to
demonstrate that it has complied with the standard of care in the
event that a passenger provided insufficient travel documentation.
It is expected that such burden of proof would facilitate the
enforcement of sanctions, while also acting as a deterrent for
airlines. Two categories of lump-sum fines (rather than a fine
range based on the degree of negligence) would penalise regular and
severe violations of the standard of care and of reporting
obligations (upon request by the competent authorities, airlines
would have to forward an accurate and complete passenger data list
for specific flights, airports or countries of departure). The
proposed lump-sum fines are as follows:
Transportation of a passenger in violation of the duty of care
in respect of sufficient travel documents – Sfr4,000
(approximately €3,330) per passenger and in severe cases
Sfr16,000 (approximately €13,320) per passenger.
Violation of reporting obligations – Sfr4,000
(approximately €3,330) per flight and in severe cases
Sfr12,000 (approximately €10,000) per flight.
In turn, the proposed legislation provides exceptions through
which airlines could avoid sanctions. For example, no violation of
the standard of care would be found if the airline could prove that
it had implemented all necessary and reasonable organisational
measures to avoid transporting passengers without sufficient travel
documentation. The same would apply if:
it was not possible to verify the falsification of, or other
tampering with, travel documents;
it was not possible to verify that the travel documents did not
relate to the person in question; or
the Swiss authorities approved entry into the Swiss
In case of a violation of reporting obligations (transmission of
passenger data list), an exception would be available, among other
things, if the airline could prove that transmission of the
required data was not possible due to technical reasons beyond its
The proposed legislation also serves as a legal basis for the
implementation of automatic data exchange between the Advanced
Passenger Information system and other databases (eg, ZEMIS, RIPOL,
the Schengen Information System and others), and transmission of
the results to the competent border authorities.
Consultation on the proposed legislation is underway with the
Swiss cantons and interested organisations. The consultation will
end on October 18 2012.
Originally published by International Law Office, July 2012
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