LeX-Ray

The Schengen area without border control at internal borders relies on the effective and efficient application by the Member States of accompanying measures in the areas of external borders, visa policy, the Schengen Information System, data protection, police cooperation, judicial cooperation in criminal matters and drugs policies.

By the Decision of the Executive Committee of 16 September 1998 ( 2 ) (SCH/Com-ex (98) 26 def) (hereinafter referred to as ‘the Decision of 16 September 1998’), a Standing Committee on the evaluation and implementation of Schengen was set up. The Standing Committee was given the mandate, first, to establish whether all the preconditions for lifting border control at internal borders with a candidate State have been fulfilled and, second, to ensure that the Schengen acquis is properly applied by the States already implementing it in full.

A specific evaluation and monitoring mechanism to verify application of the Schengen acquis is necessary given the need to ensure high uniform standards in its application in practice and to maintain a high level of mutual trust between those Member States that form part of an area without border control at internal borders. Such a mechanism should build upon close cooperation between the Commission and those Member States.

The Hague Programme ( 3 ) invited the Commission to submit, as soon as the abolition of controls at internal borders has been completed, a proposal to supplement the existing Schengen evaluation mechanism with a supervisory mechanism, ensuring full involvement of Member States experts, and including unannounced inspections.

The Stockholm Programme ( 4 ) considers that the evaluation of the Schengen area will continue to be of key importance and that it therefore should be improved by strengthening the role of the European Agency for the Management of Operational Cooperation at the External Borders of the European Union (‘Frontex’), established by Council EUR ( 5 ) , in this field.

The evaluation mechanism set up by the Decision of 16 September 1998 should therefore be revised and the Decision of 16 September 1998 be repealed.

The experience gathered during previous evaluations demonstrates the need to maintain a coherent evaluation mechanism covering all areas of the Schengen acquis except those where a specific evaluation mechanism already exists under Union law.

In accordance with Article 70 of the Treaty on the Functioning of the European Union (TFEU), objective and impartial evaluation of the implementation of the Union policies within the area of freedom, security and justice should be conducted by Members States in collaboration with the Commission. To be efficient, a proper evaluation process should comprise a proper follow-up and monitoring of the evaluation reports which should be ensured by the Commission.

In addition, for the evaluation mechanism to be more efficient, uniform conditions for the implementation of this Regulation should be ensured. To that end, some implementing powers should be conferred on the Commission and others on the Council.

The powers to prepare and plan the evaluations and the power to adopt the evaluation reports should be conferred on the Commission. A number of those powers should be exercised in accordance with Regulation 2011/182 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers ( 6 ) . In view of the terms of Article 2(2)(b)(iii) of that Regulation, the examination procedure is applicable for the adoption of such acts.

In order to strengthen mutual trust between the Member States, to ensure their better coordination at Union level and to reinforce peer pressure amongst them, the implementing power to adopt the recommendations for remedial action aimed at addressing any deficiencies identified in the evaluation reports, should be conferred on the Council. Such an implementing power mirrors the specific powers conferred on the Council, under Article 70 of the TFEU, in the field of mutual evaluation of the implementation of Union policies within the area of freedom, security and justice. It reflects adequately the purpose of an evaluation mechanism based on this lex specialis , which is, within this particular area, and in parallel with the general power of the Commission to oversee the application of Union law under the control of the Court of Justice of the European Union through infringement procedures, to fulfil a complementary function of monitoring the effectiveness of the practical implementation of Union policies through peer review. Moreover, such an implementing power conferred on the Council contributes to giving effect to the wish of the European Council, expressed in its conclusions of 23 and 24 June 2011, that cooperation in the Schengen area be further strengthened by enhancing mutual trust between the Member States, and that the Member States be responsible for guaranteeing that all Schengen rules are applied effectively in accordance with the agreed common standards and with fundamental principles and norms. Such implementing power also contributes, in accordance with the Council conclusions of 8 March 2012, to improving the governance of the Schengen area through political discussions at ministerial level on the correct functioning of the Schengen area, including discussions in situations where evaluation reports have shown serious shortcomings. Such discussions, taking place within the Mixed Committee made up of the EU Member States and the Schengen associated States, should assist the Council in taking decisions within the scope of its competences to ensure the efficient functioning of the Schengen area. Finally, conferring such implementing power on the Council adequately takes into account the potential politically-sensitive nature of recommendations, often touching on national executive and enforcement powers.

The evaluation mechanism should set up transparent, efficient and clear rules on the method to be applied for the evaluations, the use of highly qualified experts for on-site visits and the follow-up to the findings of the evaluations. In particular, the method should provide for unannounced on-site visits to supplement announced on-site visits, in particular with regard to border controls and visas.

The evaluation and monitoring mechanism should cover all aspects of the Schengen acquis . As regards the issue of borders, the evaluation and monitoring mechanism should cover both the efficiency of border controls at external borders and the absence of border controls at internal borders.

During the evaluation and monitoring particular attention to respect for fundamental rights in the application of the Schengen acquis should be paid.

The evaluation should guarantee that the Member States apply the Schengen rules effectively in accordance with fundamental principles and norms. Therefore the evaluation mechanism should encompass all relevant legislation and operational activities contributing to the functioning of an area without border control at internal borders.

In view of strengthening the effectiveness and reliability of the evaluation mechanism, the correct functioning of the authorities that apply the relevant parts of the Schengen acquis should be taken into account in all the evaluations. That will increase the ability of the evaluation mechanism to guarantee an effective application of the Schengen rules by Member States in accordance with fundamental principles and norms as requested by the European Council in its conclusions of 23 and 24 June 2011. It will comply with the request of the European Council, set out in its conclusions of 1 and 2 March 2012, that the evaluation mechanism address the required functioning of the institutions involved in the application of the Schengen acquis .

Frontex should support the implementation of the evaluation mechanism, primarily in the area of risk analysis relating to external borders. The evaluation mechanism should also be able to rely on the expertise of Frontex’s assistance on an ad hoc basis when carrying out on-site visits at the external borders.

Other Union bodies, offices and agencies, such as the European Police Office(‘Europol’), established by Council Decision 2009/371/JHA ( 7 ) , and Eurojust, established by Council Decision 2002/187/JHA ( 8 ) , should, where relevant, support the implementation of the evaluation mechanism in the areas covered by their mandate. The evaluation mechanism should also, where relevant, be able to rely on the expertise of Union bodies, offices or agencies when they assist in carrying out on-site visits relating to areas of the Schengen acquis that fall within their mandate. That should for instance be the case of the European Data Protection Supervisor as regards evaluations concerning data protection, in which national data protection authorities may also be involved.

Member States and the Commission should ensure that experts made available for on-site visits have the necessary experience and have undergone specific training for that purpose, including in respect of fundamental rights. Appropriate training should be provided by the relevant Union bodies, offices or agencies, such as Frontex, and funds should be made available to Member States for initiatives targeted at specific training in the field of evaluating the Schengen acquis from the existing financial instruments of the Union and by development of such instruments.

In view of the particular role entrusted to the European Parliament and to the national parliaments under the last sentence of Article 70 TFEU, as underlined in point (c) of Article 12 of the Treaty on European Union (TEU) as regards the national parliaments, it is necessary to provide that the Council and the Commission will fully inform the European Parliament and the national parliaments of the content and results of the evaluation. In addition, should the Commission submit a proposal to amend this Regulation, the Council would, in accordance with Article 19(7)(h) of its Rules of Procedure, consult the European Parliament in order to take into consideration its opinion, to the fullest extent possible, before adopting a final text.

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis , Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law.

The United Kingdom is taking part in this Regulation, in accordance with Article 5(1) of Protocol No 19 on the Schengen acquis integrated into the framework of the Union, annexed to the TEU and to the TFEU, and Article 8(2) of Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis ( 9 ) .

Ireland is taking part in this Regulation, in accordance with Article 5(1) of Protocol No 19 on the Schengen acquis integrated into the framework of the European Union, annexed to the TEU and to the TFEU, and Article 6(2) of Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis ( 10 ) .

As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis ( 11 ) which fall within the area referred to in Article 1 of Council Decision 1999/437/EC ( 12 ) on certain arrangements for the application of that Agreement.

As regards Switzerland, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis ( 13 ) which fall within the area referred to in Article 1 of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC ( 14 ) .

As regards Liechtenstein, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis ( 15 ) which fall within the area referred to in Article 1 of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU ( 16 ) .

Since, at the date of entry into force of this Regulation, the evaluation of Cyprus will have already commenced under the Decision of 16 September 1998, this Regulation will not apply to Cyprus until 1 January 2016.

Given that the verification in accordance with the applicable Schengen evaluation procedures concerning Bulgaria and Romania has already been completed pursuant to Article 4(2) of the 2005 Act of Accession, the verification under Article 1(1)(b) of this Regulation will not be carried out in respect of those Member States.

Experts from Cyprus, Bulgaria, Romania and Croatia should nevertheless participate in the evaluation of all parts of the Schengen acquis ,