# L_2012112EN.01006701.xml

| 24.4.2012 | EN | Official Journal of the European Union | L 112/6 |
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24.4.2012

EN

Official Journal of the European Union

L 112/6

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ANNEX V

List referred to in Article 18 of the Act of Accession: transitional measures

List referred to in Article 18 of the Act of Accession: transitional measures

2.   FREE MOVEMENT OF PERSONS

FREE MOVEMENT OF PERSONS

Treaty on the Functioning of the European Union

31996 L 0071: Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (OJ L 18, 21.1.1997, p. 1).

32004 L 0038: Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158, 30.4.2004, p. 77).

32011 R 0492: Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (OJ L 141, 27.5.2011, p. 1).

| 1. | Article 45 and the first paragraph of Article 56 of the TFEU shall fully apply only, in relation to the freedom of movement of workers and the freedom to provide services involving temporary movement of workers as defined in Article 1 of Directive 96/71/EC, between Croatia on the one hand and each of the present Member States on the other hand, subject to the transitional provisions laid down in paragraphs 2 to 13. |
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1.

Article 45 and the first paragraph of Article 56 of the TFEU shall fully apply only, in relation to the freedom of movement of workers and the freedom to provide services involving temporary movement of workers as defined in Article 1 of Directive 96/71/EC, between Croatia on the one hand and each of the present Member States on the other hand, subject to the transitional provisions laid down in paragraphs 2 to 13.

| 2. | By way of derogation from Articles 1 to 6 of Regulation (EU) No 492/2011 and until the end of the two year period following the date of accession, the present Member States will apply national measures, or those resulting from bilateral agreements, regulating access to their labour markets by Croatian nationals. The present Member States may continue to apply such measures until the end of the five year period following the date of accession.
  Croatian nationals legally working in a present Member State at the date of accession and admitted to the labour market of that Member State for an uninterrupted period of 12 months or longer will enjoy access to the labour market of that Member State but not to the labour market of other Member States applying national measures.
  Croatian nationals admitted to the labour market of a present Member State following accession for an uninterrupted period of 12 months or longer shall also enjoy the same rights.
  The Croatian nationals referred to in the second and third subparagraphs shall cease to enjoy the rights referred to in those subparagraphs if they voluntarily leave the labour market of the present Member State in question.
  Croatian nationals legally working in a present Member State at the date of accession, or during a period when national measures are applied, and who were admitted to the labour market of that Member State for a period of less than 12 months shall not enjoy the rights referred to in the second and third subparagraphs. |
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2.

By way of derogation from Articles 1 to 6 of Regulation (EU) No 492/2011 and until the end of the two year period following the date of accession, the present Member States will apply national measures, or those resulting from bilateral agreements, regulating access to their labour markets by Croatian nationals. The present Member States may continue to apply such measures until the end of the five year period following the date of accession.

Croatian nationals legally working in a present Member State at the date of accession and admitted to the labour market of that Member State for an uninterrupted period of 12 months or longer will enjoy access to the labour market of that Member State but not to the labour market of other Member States applying national measures.

Croatian nationals admitted to the labour market of a present Member State following accession for an uninterrupted period of 12 months or longer shall also enjoy the same rights.

The Croatian nationals referred to in the second and third subparagraphs shall cease to enjoy the rights referred to in those subparagraphs if they voluntarily leave the labour market of the present Member State in question.

Croatian nationals legally working in a present Member State at the date of accession, or during a period when national measures are applied, and who were admitted to the labour market of that Member State for a period of less than 12 months shall not enjoy the rights referred to in the second and third subparagraphs.

| 3. | Before the end of the two year period following the date of accession, the Council shall review the functioning of the transitional provisions laid down in paragraph 2, on the basis of a report from the Commission.
  On completion of this review, and no later than at the end of the two year period following the date of accession, the present Member States shall notify the Commission whether they will continue to apply national measures or measures resulting from bilateral agreements, or whether they will apply Articles 1 to 6 of Regulation (EU) No 492/2011 thereafter. In the absence of such notification, Articles 1 to 6 of Regulation (EU) No 492/2011 shall apply. |
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3.

Before the end of the two year period following the date of accession, the Council shall review the functioning of the transitional provisions laid down in paragraph 2, on the basis of a report from the Commission.

On completion of this review, and no later than at the end of the two year period following the date of accession, the present Member States shall notify the Commission whether they will continue to apply national measures or measures resulting from bilateral agreements, or whether they will apply Articles 1 to 6 of Regulation (EU) No 492/2011 thereafter. In the absence of such notification, Articles 1 to 6 of Regulation (EU) No 492/2011 shall apply.

| 4. | Upon Croatia’s request, one further review may be held. The procedure referred to in paragraph 3 shall apply and shall be completed within six months of receipt of Croatia’s request. |
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4.

Upon Croatia’s request, one further review may be held. The procedure referred to in paragraph 3 shall apply and shall be completed within six months of receipt of Croatia’s request.

| 5. | A Member State maintaining national measures or measures resulting from bilateral agreements at the end of the five year period referred to in paragraph 2 may, in case of serious disturbances of its labour market or threat thereof and after notifying the Commission, continue to apply these measures until the end of the seven year period following the date of accession. In the absence of such notification, Articles 1 to 6 of Regulation (EU) No 492/2011 shall apply. |
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5.

A Member State maintaining national measures or measures resulting from bilateral agreements at the end of the five year period referred to in paragraph 2 may, in case of serious disturbances of its labour market or threat thereof and after notifying the Commission, continue to apply these measures until the end of the seven year period following the date of accession. In the absence of such notification, Articles 1 to 6 of Regulation (EU) No 492/2011 shall apply.

| 6. | During the seven year period following the date of accession, those Member States in which, by virtue of paragraphs 3, 4 or 5, Articles 1 to 6 of Regulation (EU) No 492/2011 apply as regards Croatian nationals, and which issue work permits to nationals of Croatia for monitoring purposes during this period, will do so automatically. |
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6.

During the seven year period following the date of accession, those Member States in which, by virtue of paragraphs 3, 4 or 5, Articles 1 to 6 of Regulation (EU) No 492/2011 apply as regards Croatian nationals, and which issue work permits to nationals of Croatia for monitoring purposes during this period, will do so automatically.

| 7. | Those Member States in which, by virtue of paragraphs 3, 4 or 5, Articles 1 to 6 of Regulation (EU) No 492/2011 apply as regards Croatian nationals, may resort to the procedures set out in the second and third subparagraphs of this paragraph until the end of the seven year period following the date of accession.
  When a Member State referred to in the first subparagraph undergoes or foresees disturbances on its labour market which could seriously threaten the standard of living or level of employment in a given region or occupation, that Member State shall inform the Commission and the other Member States thereof and shall supply them with all relevant particulars. On the basis of this information, the Member State may request the Commission to state that the application of Articles 1 to 6 of Regulation (EU) No 492/2011 is wholly or partially suspended in order to restore to normal the situation in that region or occupation. The Commission shall decide on the suspension and on the duration and scope thereof no later than two weeks after receiving such a request and shall notify the Council of its decision. Any Member State may, within two weeks of the Commission's decision, request the Council to annul or amend that decision. The Council shall act on such a request within two weeks, by qualified majority.
  A Member State referred to in the first subparagraph may, in urgent and exceptional cases, suspend the application of Articles 1 to 6 of Regulation (EU) No 492/2011, followed by a reasoned ex post notification to the Commission. |
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7.

Those Member States in which, by virtue of paragraphs 3, 4 or 5, Articles 1 to 6 of Regulation (EU) No 492/2011 apply as regards Croatian nationals, may resort to the procedures set out in the second and third subparagraphs of this paragraph until the end of the seven year period following the date of accession.

When a Member State referred to in the first subparagraph undergoes or foresees disturbances on its labour market which could seriously threaten the standard of living or level of employment in a given region or occupation, that Member State shall inform the Commission and the other Member States thereof and shall supply them with all relevant particulars. On the basis of this information, the Member State may request the Commission to state that the application of Articles 1 to 6 of Regulation (EU) No 492/2011 is wholly or partially suspended in order to restore to normal the situation in that region or occupation. The Commission shall decide on the suspension and on the duration and scope thereof no later than two weeks after receiving such a request and shall notify the Council of its decision. Any Member State may, within two weeks of the Commission's decision, request the Council to annul or amend that decision. The Council shall act on such a request within two weeks, by qualified majority.

A Member State referred to in the first subparagraph may, in urgent and exceptional cases, suspend the application of Articles 1 to 6 of Regulation (EU) No 492/2011, followed by a reasoned ex post notification to the Commission.

ex post

| 8. | As long as the application of Articles 1 to 6 of Regulation (EU) No 492/2011 is suspended by virtue of paragraphs 2 to 5 and 7 above, Article 23 of Directive 2004/38/EC shall apply in Croatia with regard to nationals of the present Member States, and in the present Member States with regard to Croatian nationals, under the following conditions, so far as the right of family members of workers to take up employment is concerned:






  — | the spouse of a worker and their descendants who are under 21 years of age or are dependants, legally residing with the worker in the territory of a Member State at the date of accession, shall have, upon accession, immediate access to the labour market of that Member State. This does not apply to family members of a worker legally admitted to the labour market of that Member State for a period of less than 12 months, |
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8.

As long as the application of Articles 1 to 6 of Regulation (EU) No 492/2011 is suspended by virtue of paragraphs 2 to 5 and 7 above, Article 23 of Directive 2004/38/EC shall apply in Croatia with regard to nationals of the present Member States, and in the present Member States with regard to Croatian nationals, under the following conditions, so far as the right of family members of workers to take up employment is concerned:

—

the spouse of a worker and their descendants who are under 21 years of age or are dependants, legally residing with the worker in the territory of a Member State at the date of accession, shall have, upon accession, immediate access to the labour market of that Member State. This does not apply to family members of a worker legally admitted to the labour market of that Member State for a period of less than 12 months,

| — | the spouse of a worker and their descendants who are under 21 years of age or are dependants, legally residing with the worker in the territory of a Member State from a date later than the date of accession, but during the period of application of the transitional provisions laid down above, shall have access to the labour market of the Member State concerned once they have been resident in the Member State concerned for at least 18 months or from the third year following the date of accession, whichever is earlier. |
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—

the spouse of a worker and their descendants who are under 21 years of age or are dependants, legally residing with the worker in the territory of a Member State from a date later than the date of accession, but during the period of application of the transitional provisions laid down above, shall have access to the labour market of the Member State concerned once they have been resident in the Member State concerned for at least 18 months or from the third year following the date of accession, whichever is earlier.

These provisions shall be without prejudice to more favourable measures, whether national measures or measures resulting from bilateral agreements.

| 9. | Insofar as the provisions of Directive 2004/38/EC which take over the provisions of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (1) may not be dissociated from those of Regulation (EU) No 492/2011 whose application is deferred pursuant to paragraphs 2 to 5 and 7 and 8, Croatia and the present Member States may derogate from those provisions to the extent necessary for the application of paragraphs 2 to 5 and 7 and 8. |
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9.

Insofar as the provisions of Directive 2004/38/EC which take over the provisions of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (1) may not be dissociated from those of Regulation (EU) No 492/2011 whose application is deferred pursuant to paragraphs 2 to 5 and 7 and 8, Croatia and the present Member States may derogate from those provisions to the extent necessary for the application of paragraphs 2 to 5 and 7 and 8.

1

| 10. | Whenever national measures, or those resulting from bilateral agreements, are applied by the present Member States by virtue of the transitional provisions laid down above, Croatia may maintain in force equivalent measures with regard to the nationals of the Member State or Member States in question. |
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10.

Whenever national measures, or those resulting from bilateral agreements, are applied by the present Member States by virtue of the transitional provisions laid down above, Croatia may maintain in force equivalent measures with regard to the nationals of the Member State or Member States in question.

| 11. | Any present Member State applying national measures in accordance with paragraphs 2 to 5 and 7 to 9, may introduce, under national law, greater freedom of movement than that existing at the date of accession, including full labour market access. From the third year following the date of accession, any present Member State applying national measures may at any time decide to apply Articles 1 to 6 of Regulation (EU) No 492/2011 instead. The Commission shall be informed of any such decision. |
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11.

Any present Member State applying national measures in accordance with paragraphs 2 to 5 and 7 to 9, may introduce, under national law, greater freedom of movement than that existing at the date of accession, including full labour market access. From the third year following the date of accession, any present Member State applying national measures may at any time decide to apply Articles 1 to 6 of Regulation (EU) No 492/2011 instead. The Commission shall be informed of any such decision.

| 12. | In order to address serious disturbances or the threat thereof in specific sensitive service sectors in the labour markets of Germany and Austria, which could arise in certain regions from the transnational provision of services, as defined in Article 1 of Directive 96/71/EC, and as long as they apply by virtue of the transitional provisions laid down above, national measures or those resulting from bilateral agreements on the free movement of Croatian workers, Germany and Austria may, after notifying the Commission, derogate from the first paragraph of Article 56 of the TFEU with a view to limiting in the context of the provision of services by companies established in Croatia, the temporary movement of workers whose right to take up work in Germany and Austria is subject to national measures.
  The list of service sectors which may be covered by this derogation is as follows:






  — | in Germany:






  Sector | NACE (2) code, unless otherwise specified |
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| Construction, including related branches | 45.1 to 4;
  Activities listed in the Annex to Directive 96/71/EC |
| Industrial cleaning | 74.70 Industrial cleaning |
| Other Services | 74.87 Only activities of interior decorators |

12.

In order to address serious disturbances or the threat thereof in specific sensitive service sectors in the labour markets of Germany and Austria, which could arise in certain regions from the transnational provision of services, as defined in Article 1 of Directive 96/71/EC, and as long as they apply by virtue of the transitional provisions laid down above, national measures or those resulting from bilateral agreements on the free movement of Croatian workers, Germany and Austria may, after notifying the Commission, derogate from the first paragraph of Article 56 of the TFEU with a view to limiting in the context of the provision of services by companies established in Croatia, the temporary movement of workers whose right to take up work in Germany and Austria is subject to national measures.

The list of service sectors which may be covered by this derogation is as follows:

—

in Germany:

Sector

NACE (2) code, unless otherwise specified

2

Construction, including related branches

45.1 to 4;

Activities listed in the Annex to Directive 96/71/EC

Industrial cleaning

74.70 Industrial cleaning

Other Services

74.87 Only activities of interior decorators

| — | in Austria:






  Sector | NACE (3) code, unless otherwise specified |
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| Horticultural service activities | 01.41 |
| Cutting, shaping and finishing of stone | 26.7 |
| Manufacture of metal structures and parts of structures | 28.11 |
| Construction, including related branches | 45.1 to 4;
  Activities listed in the Annex to Directive 96/71/EC |
| Security activities | 74.60 |
| Industrial cleaning | 74.70 |
| Home nursing | 85.14 |
| Social work and activities without accommodation | 85.32 |

—

in Austria:

Sector

NACE (3) code, unless otherwise specified

3

Horticultural service activities

01.41

Cutting, shaping and finishing of stone

26.7

Manufacture of metal structures and parts of structures

28.11

Construction, including related branches

45.1 to 4;

Activities listed in the Annex to Directive 96/71/EC

Security activities

74.60

Industrial cleaning

74.70

Home nursing

85.14

Social work and activities without accommodation

85.32

To the extent that Germany or Austria derogate from the first paragraph of Article 56 of the TFEU in accordance with the first and second subparagraphs of this paragraph, Croatia may, after notifying the Commission, take equivalent measures.

The effect of the application of the present paragraph shall not result in conditions for the temporary movement of workers in the context of the transnational provision of services between Germany or Austria and Croatia which are more restrictive than those prevailing on the date of signature of the Treaty of Accession.

| 13. | The effect of the application of paragraphs 2 to 5 and 7 to 11 shall not result in conditions for access of Croatian nationals to the labour markets of the present Member States which are more restrictive than those prevailing on the date of signature of the Treaty of Accession.
  Notwithstanding the application of the provisions laid down in paragraphs 1 to 12, the present Member States shall, during any period when national measures or those resulting from bilateral agreements are applied, give preference to workers who are nationals of the Member States over workers who are nationals of third countries as regards access to their labour market.
  Croatian migrant workers and their families legally resident and working in another Member State or migrant workers from other Member States and their families legally resident and working in Croatia shall not be treated in a more restrictive way than those from third countries resident and working in that Member State or Croatia respectively. Furthermore, in application of the principle of Union preference, migrant workers from third countries resident and working in Croatia shall not be treated more favourably than nationals of Croatia. |
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13.

The effect of the application of paragraphs 2 to 5 and 7 to 11 shall not result in conditions for access of Croatian nationals to the labour markets of the present Member States which are more restrictive than those prevailing on the date of signature of the Treaty of Accession.

Notwithstanding the application of the provisions laid down in paragraphs 1 to 12, the present Member States shall, during any period when national measures or those resulting from bilateral agreements are applied, give preference to workers who are nationals of the Member States over workers who are nationals of third countries as regards access to their labour market.

Croatian migrant workers and their families legally resident and working in another Member State or migrant workers from other Member States and their families legally resident and working in Croatia shall not be treated in a more restrictive way than those from third countries resident and working in that Member State or Croatia respectively. Furthermore, in application of the principle of Union preference, migrant workers from third countries resident and working in Croatia shall not be treated more favourably than nationals of Croatia.

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(1)  OJ L 257, 19.10.1968, p. 13. Directive as last amended by the 2003 Act of Accession (OJ L 236, 23.9.2003, p. 33) and repealed with effect from 30 April 2006 by European Parliament and Council Directive 2004/38/EC (OJ L 158, 30.4.2004, p. 77).

1

(2)  NACE: see 31990 R 3037: 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);

2

(3)  NACE: see 31990 R 3037: 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

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