# EUR-Lex - 52013PC0674 - EN

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# 52013PC0674

**Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union and its Member States, of a Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, to take account of the accession of the Republic of Croatia to the European Union /* COM/2013/0674 final - 2013/0322 (NLE) */**

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EXPLANATORY MEMORANDUM

The Agreement between the European
Community and its Member States, of the one part, and the Swiss Confederation,
of the other, on the free movement of persons, hereinafter referred to as ‘the
Agreement’, was signed on 21 June 1999 and entered into force on
1 June 2002.

This proposal constitutes the legal
instrument for the signature of a Protocol to the Agreement between the
European Community and its Member States, of the one part, and the Swiss
Confederation, of the other, on the free movement of persons to take account of
the accession of the Republic of Croatia to the European Union (hereinafter
referred to as ‘the Protocol’).

According to the Act of
Accession of the Republic of Croatia, Croatia shall accede to the international
agreements signed or concluded by the European Union and its Member States by
means of a Protocol to those agreements.

On 24 September 2012[1], the Council
authorised the Commission to open negotiations with the Swiss Confederation
with a view to concluding the relevant protocol. The negotiations with the
Swiss Confederation were successfully concluded by the initialling of the
Protocol.

The proposed Protocol incorporates the Republic of Croatia
as Contracting Party to the Agreement and commits the EU to providing the
authentic version of the Agreement in the new official language of the EU.

The Commission has judged the results of
the negotiations to be satisfactory and requests the Council to adopt the
attached Decision on the signature of the Protocol.

2013/0322 (NLE)

Proposal for a

COUNCIL DECISION

on the signing, on behalf of the European
Union and its Member States, of a Protocol to the Agreement between the
European Community and its Member States, of the one part, and the Swiss
Confederation, of the other, on the free movement of persons, to take account
of the accession of the Republic of Croatia to the European Union

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 217 in conjunction
with Article 218(5) and the second subparagraph of Article 218(8) thereof,

Having regard to the Act of Accession of
the Republic of Croatia, and in particular Article 6(2) thereof,

Having regard to the proposal from the
European Commission,

Whereas:

(1)       On 24 September 2012, the
Council authorised the Commission to open negotiations with the Swiss
Confederation for a Protocol to the Agreement between the European Community
and its Member States, of the one part, and the Swiss Confederation, of
the other, on the free movement of persons, to take account of the accession of
the Republic of Croatia to the European Union. The negotiations were
successfully concluded by the initialling of the Protocol annexed to this
Decision.

(2)       Under the terms of Article
6(2) of the Act of Accession of the Republic of Croatia, the accession of the
Republic of Croatia to the Agreement between the European Community and
its Member States, of the one part, and the Swiss Confederation, of the
other, on the free movement of persons is to be agreed by means of a protocol
to the Agreement concluded between the Council, acting on behalf of the Union
and unanimously on behalf of the Member States, and by the Swiss Confederation.

(3)       Therefore, the Protocol
should be signed on behalf of the European Union, subject to its conclusion at
a later date,

HAS ADOPTED THIS DECISION:

Article 1

The signing on behalf of the European Union
and its Member States of the Protocol to the Agreement between the European
Community and its Member States, of the one part, and the Swiss Confederation,
of the other, on the free movement of persons, to take account of the accession
of the Republic of Croatia to the European Union is hereby authorised, subject
to the conclusion of the said Protocol.

The text of the Protocol is attached to
this Decision.

Article 2

The Council Secretariat General shall
establish the instrument of full powers to sign the Protocol, subject to its
conclusion, for the person(s) indicated by the negotiator.

Article 3

This
Decision shall enter into force on the day of its adoption.

Done at Brussels,

For
the Council

The
President

Protocol
to the Agreement between the European Community and its Member States, of the
one part, and the Swiss Confederation, of the other, on the free movement of
persons regarding the participation of the Republic of Croatia as a Contracting
Party following its accession to the European Union

The European Union

and

the
Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Kingdom
of Denmark, the Federal Republic of Germany, the Republic of Estonia,
Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic,
the Republic of Croatia ,the Italian Republic, the Republic of Cyprus, the
Republic of Latvia, the Republic of Lithuania, the Grand Duchy of
Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of
the Netherlands, the Republic of Austria, the Republic of Poland, the
Portuguese Republic, Romania, the Republic of Slovenia, the Slovak
Republic, the Republic of Finland, the Kingdom of Sweden and
the United Kingdom of Great Britain and Northern Ireland;

hereinafter
referred to as ‘the Member States’,

of
the one part,

and

the
Swiss Confederation,

hereinafter
referred to as ‘Switzerland’,

of
the other part,

hereinafter
referred to as ‘the Contracting Parties’,

Having
regard to the Agreement of 21 June 1999 between the European Community and its
Member States, of the one part, and the Swiss Confederation, of the other, on
the free movement of persons (hereinafter referred to as the Agreement), which
entered into force on 1 June 2002,

Having
regard to the Protocol of 26 October 2004 to the Agreement of 21 June 1999
between the European Community and its Member States, of the one part, and the
Swiss Confederation, of the other, on the free movement of persons
regarding the participation, as Contracting Parties, of the Czech Republic, the
Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic
of Lithuania, Hungary, the Republic of Malta, the Republic of Poland, the
Republic of Slovenia and the Slovak Republic pursuant to their
accession to the European Union (‘the 2004 Protocol’), which entered into
force on 1 April 2006,

Having regard to the
Protocol of 27 May 2008 to the Agreement of 21 June 1999 between the
European Community and its Member States, of the one part, and the Swiss Confederation,
of the other, on the free movement of persons regarding the participation as
Contracting Parties of the Republic of Bulgaria and Romania pursuant to their
accession to the European Union (‘the 2008 Protocol’), which entered into force
on 1 June 2009,

Having
regard to the accession of the Republic of Croatia to the European Union on
1 July 2013,

Whereas
the Republic of Croatia should become a Contracting Party to the Agreement,

Have
agreed upon the following provisions:

Article 1

1. The
Republic of Croatia hereby becomes a Contracting Party to the Agreement.

2.
From the entry into force of this Protocol the provisions of the Agreement
shall be binding on Croatia under the same conditions as the present
Contracting Parties and under the terms and conditions laid down in this
Protocol.

Article 2

The
following amendments shall be made to the main body of the Agreement and Annex
I thereto:

(a)
Croatia is hereby added to the list of Contracting Parties together with the
European Union and its Member States.

(b) In Article 10 of the
Agreement the following paragraphs 1c, 2c, 3c, 4d, 4e and 5c shall be inserted
at the end of the corresponding paragraphs 1b, 2b, 3b, 4c and 5b:

‘1c. Switzerland may
maintain, until the end of the second year after the entry into force of the
Protocol to this Agreement regarding the participation of the Republic of
Croatia as a Contracting Party, quantitative limits in respect of access by
workers employed in Switzerland and for self-employed persons who are nationals
of Croatia for the following two categories of residence: residence for a
period of more than four months and less than one year and residence for a
period equal to, or exceeding, one year. There shall be no restrictions on
residence of less than four months.

Before the end of the
transitional period mentioned above, the Joint Committee shall review the
functioning of the transitional period applied to nationals of Croatia on the
basis of a report from Switzerland. Upon completion of the review, and no later
than at the end of the period mentioned above, Switzerland shall notify the
Joint Committee whether it will continue applying quantitative limits to workers
employed in Switzerland. Switzerland may continue to apply such measures for
five years after the entry into force of the aforementioned Protocol. In the absence of such notification, the
transitional period shall expire at the end of the two-year period specified in
the first subparagraph.

At the end of the
transitional period laid down in this paragraph all quantitative limits
applicable to nationals of Croatia shall be abolished. Croatia is entitled to
introduce the same quantitative limits for Swiss nationals for the same
periods.’

‘2c. Switzerland and
Croatia may maintain, until the end of the second year after the entry into
force of the Protocol to this Agreement regarding the participation of the
Republic Croatia as a Contracting Party, for workers of one of these
Contracting Parties employed in their own territory the controls on the
priority of workers integrated into the regular labour market and the wage and
working conditions applicable to nationals of the other Contracting Party
concerned. The same controls may be maintained for persons providing services
referred to in Article 5(1) of this Agreement in the following four sectors: horticulture; construction,
including related branches; security activities; industrial cleaning (NACE
codes[2]
01.41, 45.1 to 4, 74.60 and 74.70 respectively).
Switzerland shall, during the transitional periods mentioned in paragraphs 1c,
2c, 3c and 4d, give preference to workers who are nationals of
Croatia over workers who are nationals of non‑EU and non‑EFTA countries
as regards access to its labour market. The controls on the priority of workers
integrated into the regular labour market shall not apply to providers of
services liberalised by a specific agreement between the Contracting Parties
concerning the provision of services (including the Agreement on certain
aspects of government procurement in so far as it covers the provision of
services). Over this period qualification requirements may be maintained for
residence permits of less than four months[3]
and for persons providing services referred to in Article 5(1) of this
Agreement in the four sectors mentioned above.

Within two years of the
entry into force of the Protocol to this Agreement regarding the participation
of the Republic of Croatia as a Contracting Party, the Joint Committee shall
review the functioning of the transitional measures contained in this paragraph
on the basis of a report prepared by each of the Contracting Parties
implementing them. Upon completion of the review, and no later than two years
after the entry into force of the aforementioned Protocol, a Contracting Party
which has implemented the transitional measures contained in this paragraph,
and has notified the Joint Committee of its intention to continue applying
them, may continue to do so until the end of the fifth year after the entry
into force of the aforementioned Protocol. In the absence of such notification,
the transitional period shall expire at the end of the two-year period
specified in the first subparagraph.

At the end of the
transitional period laid down in this paragraph all restrictions referred to in
this paragraph shall be abolished.’

‘3c. Upon entry into force
of the Protocol to this Agreement regarding the participation of the Republic
of Croatia as a Contracting Party, and until the end of the period described in
paragraph 1c, Switzerland shall reserve on a yearly basis (pro rata temporis),
within its overall quota for third countries for workers employed in
Switzerland and for self‑employed persons who are nationals of Croatia a
minimum number of new residence permits [4]according
to the following schedule:

Until || Number of permits for a period of one year or more || Number of permits for a period of more than four months and less than one year

First year || 54 || 543

Second year || 78 || 748

Third year || 103 || 953

Fourth year || 133 || 1158

Fifth year || 250 || 2000

‘3d. If Switzerland and/or
Croatia applies to workers employed on their own territory the measures
described in paragraphs 1c, 2c and 3c as a result of serious disturbances on
their labour markets or threat thereof, they shall notify the circumstances to
the Joint Committee before the end of the period provided for in paragraph 1c.

The Joint Committee will
decide whether the notifying country may continue to apply transitional measures
on the basis of this notification. If it issues a favourable opinion, the
notifying country may continue to apply to workers employed on its own
territory the measures described in paragraphs 1c, 2c and 3c until the end of
the seventh year after the entry into force of the aforementioned Protocol. In
this case, the annual number of residence permits referred to in paragraph 1c
shall be:

Until || Number of permits for a period of one year or more || Number of permits for a period of more than four months and less than one year

Sixth year || 260 || 2100

Seventh year || 300 || 2300

.’

‘4d. At the end of the
period described in paragraphs 1c and 3d, and up to the end of the tenth year
after the entry into force of the Protocol to this Agreement regarding the
participation of the Republic of Croatia as a Contracting Party the following
provisions shall be applicable: If the number of new residence permits of one
of the categories referred to in paragraph 1c issued to employed and
self-employed persons of Croatia in a given year exceeds the average for the
three years preceding the reference year by more than 10 %, Switzerland
may, for the application year, unilaterally limit the number of new residence
permits for periods of one year or more for employed and self-employed persons
of Croatia to the average of the three years preceding the application year,
plus 5 %, and the number of new residence permits for a period of more
than four months and less than one year to the average of the three years
preceding the application year, plus 10 %. Permits may be limited to the
same number for the year following the application year.

By way of derogation from
the preceding subparagraph, the following provisions may apply at the end of
the sixth and seventh reference years: If the number of new residence permits
of one of the categories referred to in paragraph 1c issued to employed and
self‑employed persons of Croatia in a given year exceeds the average for
the year that precedes the reference year by more than 10 %, Switzerland
may, for the application year, unilaterally limit the number of new residence
permits for periods of one year or more for employed and self-employed persons
of Croatia to the average of the three years preceding the application year,
plus 5 %, and the number of new residence permits for a period of more
than four months and less than one year to the average of the three years
preceding the application year, plus 10 %. Permits
may be limited to the same number for the year
following the application year.

‘4e. For the purposes of paragraph
4d:

(1) the term ‘reference
year’ is a given year that is calculated from the first day of the month in
which the Protocol enters into force;

(2) The term ‘application
year’ refers to the year following the reference year.'

‘5c. The transitional
provisions of paragraphs 1c, 2c, 3c and 4d, and in particular those of
paragraph 2c concerning the priority of workers integrated into the regular
labour market and controls on wage and working conditions, shall not apply to
employed and self‑employed persons who, at the time of the entry into
force of the Protocol to this Agreement regarding the participation of the
Republic of Croatia as a Contracting Party, are authorised to pursue an
economic activity on the territories of the Contracting Parties. In particular,
such persons shall enjoy occupational and geographical mobility.

The holders of residence
permits valid for less than one year shall be entitled to have their permits
renewed; the exhaustion of quantitative limits may not be invoked against them.
The holders of residence permits valid for a period of one year or more shall
automatically be entitled to have their permits extended. Such employed and
self-employed persons shall therefore enjoy the rights to free movement
accorded to established persons by the basic provisions of this Agreement, and
in particular Article 7 thereof, from the entry into force of the
aforementioned Protocol.’

(c) In
Article 27(2) of Annex I to the Agreement, the reference to ‘Article 10(2),
(2a), (2b), (4a), (4b) and (4c)’ shall be replaced by a reference to ‘Article
10(2b), (2c), (4c) and (4d).’

Article 3

By
derogation from Article 25 of Annex I to the Agreement, the transitional
periods of Annex 1 to this Protocol shall apply.

Article 4

Annexes II and III
respectively to the Agreement shall be amended in accordance with Annexes 2 and
3 to this Protocol.

Article 5

1. Annexes 1, 2 and 3 to this Protocol shall
form an integral part thereof.

2.
This Protocol, together with the 2004 and 2008 Protocols, shall form an
integral part of the Agreement.

Article 6

1.
This Protocol shall be ratified or approved by the Contracting Parties in
accordance with their own procedures.

2. The
Contracting Parties shall notify each other of the completion of these
procedures.

Article 7

This
Protocol shall enter into force on the first day of the first month following
the date of the last notification of ratification or approval.

Article 8

This
Protocol shall remain in force for the same duration and in accordance with the
same arrangements as the Agreement.

Article 9

1.
This Protocol, as well as the Declarations annexed thereto, shall be drawn up
in duplicate in the Bulgarian, Croatian, Czech, Danish, Dutch, English,
Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian,
Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish
and Swedish languages, each of those texts being equally authentic.

2. The
Croatian language versions of the Agreement, including all Annexes and
Protocols thereto and the Final Act shall be equally authentic. The Joint
Committee established by Article 14 of the Agreement
shall approve the authentic text of the Agreement in
the Croatian language.

Done
at

Annex 1

Transitional measures on the purchase of
agricultural land

Croatia may maintain in force for seven
years from the date of entry into force of this Protocol the restrictions laid
down in its legislation, existing at the time of the signing of this Protocol,
on the acquisition of agricultural land by Swiss nationals and by legal persons
set up in accordance with the laws of Switzerland. In no instance may a
Swiss national be treated less favourably in respect of the acquisition of
agricultural land than at the date of the signing of this Protocol or be
treated in a more restrictive way than a national of a country other than the
Contracting Parties to the agreement or Contracting Parties to the
Agreement on the European Economic Area.

Self-employed farmers who are Swiss
nationals and who wish to establish themselves and reside in Croatia shall not
be subject to the provisions of the preceding paragraph or to any procedures
other than those to which the nationals of Croatia are subject.

A general review of these transitional
measures shall be held in the third year following the date of entry into force
of this Protocol. The Joint Committee may decide to shorten or terminate the
transitional period indicated in the first paragraph.

If there is sufficient evidence that, upon
expiry of the transitional period, there will be serious disturbances or threat
of serious disturbances on Croatia's agricultural land market, Croatia shall
notify such circumstances to the Joint Committee before the end of the seven‑year
transitional period specified in the first paragraph. In this case, Croatia may
continue to apply the measures described in the first paragraph until ten years
after the entry into force of this Protocol. This extension may be limited to
selected geographical areas particularly affected.

Annex
2

Annex II to the Agreement between the
European Community and its Member States, of the one part, and the Swiss
Confederation, of the other, on the free movement of persons is hereby amended
as follows:

1.           In Section A: Legal acts
referred to, Point 1, the following act is inserted:

Council Regulation (EU) No 517/2013 of 13 May
2013 adapting certain regulations and decisions in the fields of free movement
of goods, freedom of movement for persons, company law, competition policy,
agriculture, food safety, veterinary and phytosanitary policy, transport
policy, energy, taxation, statistics, trans-European networks, judiciary and
fundamental rights, justice, freedom and security, environment, customs union,
external relations, foreign, security and defence policy and institutions, by
reason of the accession of the Republic of Croatia (OJ L 158,
10.06.2013, p. 1).

2.           For workers who are
nationals of the Republic of Croatia, the arrangements contained in paragraph 1
of the section Unemployment Insurance of the Protocol to Annex II shall
apply until the end of the seventh year after the entry into force of this
Protocol.

Annex
3

Annex III to the Agreement between the
European Community and its Member States, of the one part, and the Swiss
Confederation, of the other, on the free movement of persons is hereby amended
as follows:

The two following
indents are added to point 1a:

-             Act of Accession of the Republic
of Croatia (OJ L 112 of 24 April 2012, p. 10), Annex III (List referred to in
Article 15 of the Act of Accession of the Republic of Croatia:
adaptations to acts adopted by the institutions - OJ L 112 of 24 April 2012, p.
41),

Article 23, paragraph 5
of Directive 2005/36/EC is replaced by the following:

‘5. Without prejudice to Article 43b, each
Member State shall recognise evidence of formal qualifications as doctor giving
access to the professional activities of doctor with basic training and
specialised doctor, as nurse responsible for general care, as dental
practitioner, as specialised dental practitioner, as veterinary surgeon, as
midwife, as pharmacist and as architect held by nationals of the Member States
and issued by the former Yugoslavia, or whose training commenced,

(a) for
Slovenia, before 25 June 1991, and

(b) for
Croatia, before 8 October 1991,

where the authorities of the aforementioned
Member States attest that such evidence has the same legal validity within
their territory as the evidence which they issue and, with respect to
architects, as the evidence of formal qualifications specified for those Member
States in Annex VI, point 6, as regards access to the professional activities
of doctor with basic training, specialised doctor, nurse responsible for
general care, dental practitioner, specialised dental practitioner, veterinary
surgeon, midwife, pharmacist with respect to the activities referred to in
Article 45, paragraph 2, and architect with respect to the activities referred
to in Article 48, and the pursuit of such activities.

Such an attestation must be accompanied by a
certificate issued by those same authorities stating that such persons have
effectively and lawfully been engaged in the activities in question within
their territory for at least three consecutive years during the five years
prior to the date of issue of the certificate.’

The following Article
43b is inserted into Directive 2005/36/EC:

‘Acquired rights in midwifery shall not apply
to the following qualifications which were obtained in Croatia before 1 July
2013: viša medicinska sestra ginekološko‑opstetričkog smjera (High
Gynaecology-Obstetrical Nurse), medicinska sestra ginekološko-opstetričkog
smjera (Gynaecology-Obstetrical Nurse), viša medicinska sestra primaljskog
smjera (High Nurse with Midwifery Degree), medicinska sestra primaljskog smjera
(Nurse with Midwifery Degree), ginekološko-opstetrička primalja
(Gynaecology-Obstetrical Midwife) and primalja (Midwife).’

– 
Council Directive 2013/25/EU of 13 May 2013
adapting certain directives in the field of right of establishment and freedom
to provide services, by reason of the accession of the Republic of Croatia (OJ
L 158 of 10 June 2013, p. 368), Annex Part A

The following indent is
added to point 2a:

– 
Council Directive 2013/25/EU of 13 May 2013
adapting certain directives in the field of right of establishment and freedom
to provide services, by reason of the accession of the Republic of Croatia (OJ
L 158 of 10 June 2013, p. 368), Annex Part B (1)

The following indent is
added to point 3a:

– 
Council Directive 2013/25/EU of 13 May 2013
adapting certain directives in the field of right of establishment and freedom
to provide services, by reason of the accession of the Republic of Croatia (OJ
L 158 of 10 June 2013, p. 368), Annex Part B (2)

The following indent is
added to point 5a:

– 
Council Directive 2013/25/EU of 13 May 2013
adapting certain directives in the field of right of establishment and freedom
to provide services, by reason of the accession of the Republic of Croatia (OJ
L 158 of 10 June 2013, p. 368), Annex Part C

DECLARATION BY SWITZERLAND ON AUTONOMOUS MEASURES AS OF THE
DATE OF SIGNING

Switzerland will provide provisional access
to its labour market for citizens of the Republic of Croatia, based on its
national legislation, before the entry into force of the transitional
arrangements contained in this Protocol. For this purpose, Switzerland will
open specific quotas for short-term as well as long-term working permits, as
defined in Article 10, paragraph 1 of the Agreement, in favour of citizens from
the Republic of Croatia, as of the date of the signing of this Protocol. The
quotas will consist of 50 long‑term permits and 450 short-term
permits per year. In addition, 1000 short‑term workers per year
will be admitted for a stay of less than four months.

[1]               Council decision authorising the Commission to open
negotiations with the Swiss Confederation for the adaptation of the Agreement
between the European Community and its Member States, of the one part, and the
Swiss confederation, of the other, on the free movement of persons, regarding
the participation of Croatia as contracting party, in view of the enlargement
of the European Union (Council doc. 12864/12 LIMITED).

[2]               NACE:Council
Regulation (EEC) No 3037/90 of 9 October 1990 on the statistical classification
of economic activities in the European Community (OJ L 293, 24.10.1990, p. 1).

[3]               Workers may apply for
short-term residence permits under the quotas mentioned in subparagraph 3c for
periods of even less than four months.

[4]               These permits will be granted
in addition to the quotas referred to in Article 10 of this Agreement, which
are reserved for employed and self-employed persons who are nationals of the
Member States at the time of the signing of this Agreement (21 June 1999) and
of the Member States that became Contracting Parties to this Agreement by
virtue of the 2004 and 2008 Protocols. These permits are also additional to
permits granted through existing bilateral trainee exchange agreements between
Switzerland and the new Member States.