Legal provisions of COM(2021)278 - Establishment and operation of an evaluation and monitoring mechanism to verify the application of the Schengen acquis - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2021)278 - Establishment and operation of an evaluation and monitoring mechanism to verify the application of the Schengen acquis. |
|---|---|
| document | COM(2021)278 |
| date | June 9, 2022 |
Contents
CHAPTER I - GENERAL PROVISIONS
Article 1
Subject matter and scope
1. This Regulation establishes an evaluation and monitoring mechanism for the purpose of ensuring that Member States apply the Schengen acquis effectively, efficiently and correctly, thereby contributing to maintaining mutual trust among Member States and a well-functioning area without internal border control.
2. The evaluation and monitoring mechanism established shall provide for objective and impartial evaluation and monitoring activities aimed at:
| (a) | verifying the application of the Schengen acquis in the Member States to which it applies in full as well as in Member States to which, in accordance with the relevant Protocols annexed to the TEU and to the TFEU, the Schengen acquis applies in part; |
| (b) | verifying that the necessary conditions for the application of all relevant parts of the Schengen acquis have been met in those Member States in respect of which a Council decision stating that the provisions of the Schengen acquis are to apply in full or in part has not been taken, with the exception of those Member States whose evaluation will already have been completed at the time of entry into force of this Regulation. |
3. Evaluations may cover all aspects of the Schengen acquis and take into account the functioning of the authorities that apply the Schengen acquis. Evaluations may cover in particular the following policy areas: management of the external borders, absence of controls at internal borders, visa policy, return, large-scale information systems supporting the application of the Schengen acquis, police cooperation, judicial cooperation in criminal matters and data protection.
Article 2
Definitions
For the purpose of this Regulation, the following definitions apply:
| (1) | ‘Schengen acquis’ means the provisions integrated into the framework of the Union in accordance with Protocol No 19 on the Schengen acquis integrated into the framework of the European Union, annexed to the TEU and the TFEU, together with the acts building upon them or otherwise related to them; |
| (2) | ‘first-time evaluation’ means an evaluation to verify whether a Member State bound by the Schengen acquis and for which internal border controls have not been lifted fulfils the conditions to apply the Schengen acquis in full or, in the case of a Member State not participating in the Schengen acquis and which has been authorised by the Council to apply parts of the Schengen acquis, to verify whether the Member State fulfils the conditions to apply the Schengen acquis in part; |
| (3) | ‘periodic evaluation’ means an evaluation included in the multiannual evaluation programme and annual evaluation programmes to verify the application of the Schengen acquis by a Member State with a view to assessing the Member State’s overall performance in the application of the Schengen acquis; |
| (4) | ‘unannounced evaluation’ means an evaluation, not included in the multiannual and annual evaluation programmes, to verify the application of the Schengen acquis by one or more Member States in one or more policy areas; |
| (5) | ‘thematic evaluation’ means an evaluation, included in the annual evaluation programme, aimed at providing an analysis of Member States’ legislation or practices in the application of the Schengen acquis, or the application of its specific parts across several Member States; |
| (6) | ‘visit’ means a visit to a Member State or to its consulates for the purpose of carrying out an evaluation or monitoring activity; |
| (7) | ‘revisit’ means a supplementary visit following an evaluation that identified a serious deficiency or following a first-time evaluation that concluded that the evaluated Member State did not fulfil the necessary conditions to apply the Schengen acquis; |
| (8) | ‘verification visit’ means a supplementary visit, other than a revisit, carried out to monitor the progress of the implementation of an action plan; |
| (9) | ‘non-compliant finding’ means an assessment of a finding according to which national laws, regulations and administrative measures, or their implementation, do not comply with the legally binding provisions of the Schengen acquis; |
| (10) | ‘serious deficiency’ means a general assessment of the situation attributed to one or more non-compliant findings which concern the effective application of the Schengen acquis and which, individually or in combination, risk to constitute a violation of fundamental rights or which have, or risk to have over time, a significant negative impact on one or more Member States or on the functioning of the area without internal border control; |
| (11) | ‘team’ means a group comprising experts designated by Member States and Commission representatives who carry out evaluation and monitoring activities; |
| (12) | ‘observer’ means an expert designated by a Union body, office or agency referred to in Article 7 participating in an evaluation or monitoring activity; |
| (13) | ‘trainee expert’ means an expert designated by a Member State or a Commission representative to be trained to become a Schengen evaluator. |
Article 3
Responsibilities and duty of cooperation
1. Member States and the Commission shall be jointly responsible for the implementation of the evaluation and monitoring mechanism, with the contribution of the relevant Union bodies, offices and agencies referred to in Article 7 in accordance with their respective mandates.
2. The Commission shall have an overall coordination role in relation to the establishment of the annual and multiannual evaluation programmes, the drafting of questionnaires, the setting of schedules of visits, the conducting of visits and the drafting of evaluation reports and recommendations. It shall also ensure that the follow-up and monitoring activities are carried out.
3. The Council shall adopt recommendations in cases of serious deficiencies, first-time evaluations, thematic evaluations and where the evaluated Member State substantially contests the draft evaluation report containing draft recommendations. As part of the monitoring phase of the evaluation and monitoring mechanism, the Council shall adopt implementing decisions on closure of the action plans in cases of serious deficiencies and first-time evaluations.
The Council shall carry out its political role in relation to the governance of the Schengen area by discussing the reports submitted by the Commission in accordance with Article 25, including on the state of play with regard to the implementation of action plans, and by holding political discussions concerning the effective implementation of the Schengen acquis and proper functioning of the area without internal border control. To this end, the Commission and the Council shall cooperate fully throughout all stages of the evaluation and monitoring mechanism carried out under this Regulation. In particular, the Commission shall provide the Council with relevant and timely information in relation to the programming and implementation of the evaluation and monitoring activities.
4. Member States and the Commission shall cooperate fully at all stages of evaluations in order to ensure the effective implementation of this Regulation.
5. Member States shall take all measures, general or particular, to support and assist the Commission and the teams in the implementation of evaluation and monitoring activities.
Member States shall ensure that the Commission and the teams carrying out evaluation and monitoring activities are able to perform their tasks effectively, in particular by allowing the Commission and the teams to address enquiries to relevant persons directly and by providing full and unimpeded access to all areas, premises and documents required for the evaluation or monitoring activity, including national and internal guidelines and instructions. Access to relevant classified information shall be granted to team members and observers having appropriate security clearance issued by a competent authority.
6. The Commission shall be responsible for making the necessary travel arrangements to and from the visited Member State for the Commission representatives and Member State experts in the teams.
The Commission shall bear the travel and accommodation costs for experts participating in the visits and the trainee expert referred to in Article 16(2).
The visited Member State shall be responsible for providing the necessary transport on location, except for unannounced visits.
Article 4
Forms of evaluation
1. Evaluations may take any of the following forms:
| (a) | first-time evaluations; |
| (b) | periodic evaluations; |
| (c) | unannounced evaluations; |
| (d) | thematic evaluations. |
2. The Commission shall organise first-time evaluations following a Member State’s declaration of readiness to be evaluated.
3. The Commission may organise unannounced evaluations, in particular:
| (a) | to evaluate the application of the Schengen acquis applicable at internal borders; |
| (b) | when it becomes aware of emerging or systemic problems that could potentially have a significant negative impact on the functioning of the area without internal border control, including circumstances that would constitute a threat to public policy or internal security within that area; |
| (c) | when it has grounds to consider that a Member State is seriously neglecting its obligations under the Schengen acquis, including when it has grounds to consider that there are serious violations of fundamental rights. |
4. The Commission may organise thematic evaluations, in particular to assess the implementation of significant legislative changes as they start to apply and of new initiatives, or to assess issues across policy areas or practices of Member States facing similar challenges.
Article 5
Forms of monitoring activities
Monitoring activities may include any of the following:
| (a) | the review of action plans and follow-up reports submitted by the evaluated Member States; |
| (b) | revisits; |
| (c) | verification visits. |
Article 6
Evaluation and monitoring methods
Evaluation and monitoring activities referred to in Articles 4 and 5 may be carried out by means of visits and questionnaires or, exceptionally, other remote methods.
Each evaluation and monitoring method may be used independently or in combination with another method, as appropriate.
Article 7
Cooperation with Union bodies, offices and agencies
1. The Commission shall cooperate with relevant Union bodies, offices and agencies which are participating in the implementation of the Schengen acquis, as well as with the European Union Agency for Fundamental Rights (FRA).
The Commission may enter into arrangements with those Union bodies, offices and agencies to facilitate cooperation concerning the implementation of this Regulation.
2. The Commission may request Union bodies, offices and agencies referred to in paragraph 1 to provide, in accordance with their respective mandates, information, statistical data or risk analyses, including on corruption and organised crime, insofar as these may undermine the application of the Schengen acquis by the Member States, to improve situational awareness within the meaning of Regulation (EU) 2019/1896 regarding the implementation of the Schengen acquis by the Member States.
The evaluated Member State may comment on the information provided under the first subparagraph.
Article 8
Cooperation with Frontex
1. By 31 August each year, Frontex shall submit to the Council, the Commission and the Member States a risk analysis for the purpose of establishing the annual evaluation programme referred to in Article 13.
The risk analysis referred to in the first subparagraph shall cover all relevant aspects related to European integrated border management and shall contain recommendations on specific sections of the external borders, specific border crossing points and specific sites relevant for evaluating compliance with Directive 2008/115/EC of the European Parliament and of the Council (22) in the Member States to be evaluated in the following year in accordance with the multiannual evaluation programme established pursuant to Article 12.
2. By 31 August each year, Frontex shall submit to the Commission a separate risk analysis containing recommendations for unannounced evaluations in the following year, irrespective of the order of Member States to be evaluated each year, in accordance with the multiannual evaluation programme established pursuant to Article 12.
The recommendations referred to in the first subparagraph may concern any region or specific area and shall contain a list of at least 10 specific sections of the external borders, at least 10 specific border crossing points and at least 10 specific sites relevant for evaluating compliance with Directive 2008/115/EC, as well as other relevant information.
Article 9
Cooperation with Europol
In accordance with Article 4(1), point (u), of Regulation (EU) 2016/794, Europol shall provide expertise, analysis, reports and other relevant information to support the implementation of this Regulation.
Article 10
Synergies with other evaluation and monitoring activities
1. The Commission shall use the results of relevant mechanisms and instruments, including evaluation and monitoring activities of Union bodies, offices and agencies which are participating in the implementation of the Schengen acquis, in particular the vulnerability assessment, and of the FRA, as well as of independent national monitoring mechanisms and bodies, in preparing the evaluation and monitoring activities, to improve awareness on the functioning of the area without internal border control and to avoid the duplication of efforts and conflicting measures. When available, the Commission may, in agreement with the evaluated Member State, use the results of national quality-control mechanisms.
2. Recommendations under this Regulation shall be complementary to recommendations made pursuant to Article 32(7) of Regulation (EU) 2019/1896 under the vulnerability assessment.
3. The Commission may share with relevant national and Union bodies, offices and agencies referred to in paragraph 1 in a secure and timely manner details of evaluation reports, action plans and updates on the implementation of the action plans.
The information sharing referred to in the first subparagraph shall take place in accordance with the mandates of the Union bodies, offices and agencies concerned.
Article 11
Information from third parties
Without prejudice to Article 20(1), in the programming and implementation of the evaluation and monitoring activities, the Commission may take into account information related to the implementation of the Schengen acquis, provided by third parties, including independent authorities, non-governmental organisations and international organisations.
The Commission shall inform the Member States of the information provided by third parties which it identifies as being relevant to the programming of evaluation and monitoring activities. Member States shall then have the opportunity to comment on the substance of that information.
CHAPTER II - PROGRAMMING
Article 12
Multiannual evaluation programme
1. The Commission, where appropriate after consulting the relevant Union bodies, offices and agencies referred to in Article 7, shall establish a multiannual evaluation programme covering a period of 7 years at least 8 months before the beginning of the following 7-year period.
In each multiannual evaluation cycle, each Member State shall undergo one periodic evaluation, and may undergo, where appropriate, one or more thematic or unannounced evaluations, on the basis of risk analyses, new legislation or information obtained by the Commission in accordance with Articles 7 to 11.
2. The Commission shall establish the multiannual evaluation programme by means of an implementing act. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 30(2).
The Commission shall transmit the multiannual evaluation programme to the European Parliament and to the Council.
3. The multiannual evaluation programme may identify, where relevant, specific priority areas within the policy areas referred to in Article 1(3) to be covered by the periodic evaluations and shall include a provisional time schedule of those evaluations.
The multiannual evaluation programme shall set out a provisional list of Member States to be subject to periodic evaluations, without prejudice to adjustments made under paragraph 4 of this Article, in a given year. The provisional order in which the Member States are to be subject to a periodic evaluation shall take into account the time which has elapsed since the previous periodic evaluation. It shall also take into account the outcome of previous evaluations, the pace of implementation of the action plans and other relevant information at the Commission’s disposal, collected in accordance with Articles 7 to 11, as regards the practices of the Member States in the application of the Schengen acquis.
4. In the event of force majeure preventing the conduct of evaluations in accordance with the provisional time schedule established pursuant to paragraph 3, the Commission may, in agreement with the Member States concerned, make adjustments to the time schedule for the evaluations concerned.
The Commission shall inform the European Parliament and the Council about events referred to in the first subparagraph and of their anticipated impact on the scheduling of evaluations under the multiannual evaluation programme without delay.
Article 13
Annual evaluation programme
1. The Commission shall establish, by means of an implementing act, an annual evaluation programme by 15 November of the year preceding that to which the programme relates. That annual evaluation programme shall be based on, in particular, the risk analyses and other information obtained by the Commission in accordance with Articles 7 to 11. The implementing act shall be adopted in accordance with the examination procedure referred to in Article 30(2).
2. The annual evaluation programme shall include a provisional time schedule of the following evaluations:
| (a) | periodic evaluations of Member States as specified in the multiannual evaluation programme; |
| (b) | first-time evaluations of a Member State; |
| (c) | where appropriate, thematic evaluations, including their theme, the Member States to be evaluated and the intended methods. |
3. The Commission shall transmit the annual evaluation programme to the European Parliament and to the Council without delay.
In the event of force majeure preventing the conduct of evaluations in accordance with the provisional time schedule established pursuant to paragraph 2, the Commission may, in agreement with the Member States concerned, make adjustments to the time schedule for the evaluations concerned.
The Commission shall inform the European Parliament and the Council about events referred to in the second subparagraph and of their anticipated impact on the scheduling of evaluations under the annual evaluation programme without delay.
Article 14
Standard questionnaire
1. The Commission shall, by means of an implementing act, establish and update a standard questionnaire. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 30(2).
In drawing up the questionnaire, the Commission may consult the relevant Union bodies, offices and agencies referred to in Article 7.
2. The standard questionnaire shall cover the implementation of the relevant legislation as well as the organisational and technical means available for the implementation of the Schengen acquis, including those referred to in handbooks, the Schengen catalogues and relevant statistical data.
3. By 1 July each year, the Commission shall send the standard questionnaire to those Member States which are to undergo periodic evaluations in the following year in accordance with the annual evaluation programme.
Member States referred to in the first subparagraph shall provide the Commission with their replies by 31 October of the same year.
The Commission shall make the replies referred to in the second subparagraph available to the other Member States.
4. On the request of the Commission, the evaluated Member States shall update their replies to the standard questionnaire and answer, if requested, complementary questions before specific evaluations. Member States may also provide the findings of national quality-control mechanisms and internal audits, where relevant.
CHAPTER III - COMMON PROVISIONS FOR CONDUCTING EVALUATION AND MONITORING ACTIVITIES
Article 15
Team members and observers
1. The team members and observers participating in evaluation and monitoring activities shall have appropriate qualifications, including a solid theoretical knowledge and experience in the areas covered by the evaluation and monitoring mechanism, along with sound knowledge of evaluation principles, procedures and techniques, and shall be able to communicate effectively in a common language.
2. Experts from the Member States which, in accordance with the relevant Act of Accession, are bound by but do not yet fully apply the Schengen acquis shall participate in evaluation and monitoring activities of all parts of the Schengen acquis.
Article 16
Training of experts, observers and trainee experts
1. The Member States and the Commission, in cooperation with the relevant Union bodies, offices or agencies referred to in Article 7, shall ensure that Member State experts and Commission representatives receive adequate training to become Schengen evaluators.
The Commission shall ensure that training courses for Schengen evaluators are organised for all relevant policy areas and include the correct functioning of the authorities as well as fundamental rights components developed with the participation of the FRA.
The Commission, in close cooperation with the Member States and the relevant Union bodies, offices or agencies referred to in Article 7, shall keep up to date the initial training curricula and where needed provide follow-up and refresher training.
2. In duly justified cases, each team carrying out periodic evaluations may include one trainee expert either from a Member State or the Commission.
3. Observers shall have adequate training.
Article 17
Pool of Member State experts
1. The Commission, in cooperation with the Member States, shall establish every year a pool of experts whose professional backgrounds cover policy areas, or, where relevant, the specific priority areas set out in the multiannual evaluation programme.
2. In parallel to the establishment of the annual evaluation programme in accordance with Article 13(1), on the invitation of the Commission, Member States shall designate one or more qualified experts per policy area for the following year’s pool of experts. Each Member State shall ensure that at least one designated expert per policy area is available during a calendar year. Member State may indicate the 6-month period in which a designated expert is available and preferences for a particular evaluation. The Commission shall take into account those preferences to the extent possible.
Member States shall not be required to designate experts in the areas in which, for objective reasons, they are not evaluated or, in exceptional situations, if the designation would substantially affect the discharge of national tasks. If a Member State invokes the latter, it shall provide in writing the reasons and information on the exceptional situation to the Commission.
Member States shall inform the Commission about the national contact point designated for the communication on the deployment of experts.
3. Depending on the evaluations included in the annual evaluation programme, the Commission shall further specify in the invitation the professional requirements for the experts to be designated.
4. Member States shall designate experts within 6 weeks of receiving the invitation referred to in paragraph 2.
5. Member States shall ensure that the experts designated fulfil the conditions referred to in Article 15 and the specific requirements set out in the invitation for establishing the pool of experts.
6. Experts who have received appropriate training as referred to in Article 16 shall be designated, where possible, for the pool of experts established for the year following that in which they received the relevant training course.
7. The Commission may invite the relevant Union bodies, offices and agencies referred to in Article 7 to designate observers for the pool of experts.
8. The Commission shall assess the experts designated and confirm the selection of the experts for the pool within 1 week of their designation. Within 1 month of the establishment of the pool of experts, the Commission shall inform the Member States about the selection of experts for the evaluations planned in the upcoming year, taking into account availability and preferences expressed for a particular evaluation.
9. Where none of the experts for the policy areas fulfils the requirements referred to in paragraph 3, the Commission shall invite the Member State concerned to designate a new expert for the policy area concerned.
10. Member States shall ensure that the designated experts are available for evaluations unless they are faced with an exceptional situation such as a situation that substantially affects the discharge of national tasks or a personal situation. If a Member State invokes such an exceptional situation, it shall provide, in writing, reasons and information on the situation to the Commission.
If an expert is no longer available for the pool, the Member State concerned shall designate a replacement within a reasonable amount of time.
11. The Commission shall keep the list of experts of the pool up to date and inform Member States about the number of experts and their profiles designated per Member State.
Article 18
Establishment of the teams
1. The Commission shall define the number of Member State experts and Commission representatives participating in a team on the basis of the particularities and needs of the evaluation or monitoring activity. The maximum number of Commission representatives participating in a team shall be two. The minimum number of Member State experts in a team participating in an announced visit or an unannounced visit shall be three. The Commission shall select experts from the pool of experts to become members of a team.
When establishing the teams for revisits and verification visits to a given Member State, the Commission and the Member States shall strive to ensure that at least half of the Member State experts in the team are the same as those who participated in the evaluation.
2. In selecting experts, the Commission shall have regard to the profiles needed for a particular evaluation or monitoring activity, taking account of the need to ensure geographical balance and balance as regards professional experience, as well as the capacity of national administrations.
Member State experts shall not participate in a team carrying out an evaluation or monitoring activity of the Member State where they are employed.
3. The Commission shall invite the selected experts immediately after the date of the evaluation or monitoring activity is set and no later than 10 weeks before the evaluation or monitoring activity is scheduled to commence. Invited experts shall respond within 1 week of receiving the invitation, in agreement with their designating authorities.
Invitations referred to in the first subparagraph shall be sent via the designated national contact points.
4. In the case of unannounced visits, the Commission shall send the invitations via the designated national contact points no later than 2 weeks before the visit is scheduled to commence. Invited experts shall respond within 72 hours of receiving the invitation, in agreement with their designating authorities.
5. The Commission may invite the relevant Union bodies, offices and agencies referred to in Article 7 to designate a representative with relevant professional and field experience to take part as an observer in an evaluation or monitoring activity in an area covered by their mandate. The time limits set out in paragraphs 3 and 4 of this Article shall apply for the invitation and the response.
6. If a Member State wishes to designate a trainee expert referred to in Article 16(2), it shall communicate that to the Commission at least 6 weeks before the evaluation is scheduled to commence.
7. The observers referred to in paragraph 5 shall support the team as requested by the lead experts, but they shall not participate in the internal decision-making process of the team.
The trainee experts referred to in paragraph 6 shall not actively participate in the evaluation activity.
8. If the Commission fails to obtain confirmation of the participation of the required number of experts from the pool at least 6 weeks before the evaluation or monitoring activity is scheduled to commence, or at least 1 week before in the case of an unannounced visit, the Commission shall without delay invite all Member States to designate qualified experts from outside the pool for the missing places. Member States shall respond within 72 hours of receipt of that invitation.
9. The Commission shall designate a Commission lead expert and propose the Member State lead expert. The Member State lead expert shall be appointed by the members of the team as soon as possible after the team has been set up.
The lead experts shall be responsible in particular for the overall planning, preparatory activities, the organisation of the team, the carrying-out of the evaluation, the coordination of drafting the evaluation report, the presentation of the evaluation report and the recommendations, the quality check and follow-up, as well as relevant monitoring activities where appropriate.
Article 19
Conduct of visits
1. The teams shall undertake all necessary preparatory activities in order to ensure that the visits are efficient, accurate and consistent.
2. The detailed programme for the visits in a Member State or in its consulates shall be established by the Commission in close cooperation with the lead experts and the Member State concerned.
The detailed programme referred to in the first subparagraph may include visits to and meetings with national authorities and bodies, as well as non-governmental and international organisations, other entities, agencies and bodies supporting the Member States in the implementation of the Schengen acquis.
3. For announced visits, the Commission shall consult and notify the Member State concerned of the timetable and detailed programme at least 6 weeks before the visit is due to take place. It shall provide in advance the names of the members of the team and the observers. The Member State concerned shall designate a contact point for making the practical arrangements for the visit.
4. Unannounced visits shall take place with prior notification of at least 24 hours to the Member State concerned. Unannounced visits to the internal borders shall take place without prior notification to the Member State concerned. Unannounced visits may take place without prior notification to the Member State concerned in cases where the Commission has substantiated grounds to consider that there are serious violations of fundamental rights in the application of the Schengen acquis. Verification visits may also take place without prior notification to the Member State concerned.
The Commission shall establish the detailed programme for unannounced visits. Where a Member State has been notified of an unannounced visit, the Commission may consult with the Member State concerned on the timetable and detailed programme.
Article 20
Evaluation reports and recommendations
1. The team shall draft an evaluation report following each evaluation.
In preparing the evaluation report, the teams shall take account of the replies to the standard questionnaire, any additional information obtained in accordance with Articles 7 to 11 and verified during the evaluation activity, and the findings of the evaluation activity. The evaluation reports may include documentary and digital material to support the findings. Where an evaluation is carried out by means of a visit, the team shall draft the evaluation report during the visit.
The team shall take overall responsibility for drafting the evaluation report and ensuring its integrity and quality. In the event of a disagreement, the team shall endeavour to reach a compromise.
The Commission shall transmit the draft evaluation report containing the draft recommendations to the evaluated Member State within 4 weeks of the end of the evaluation activity. The evaluated Member State shall provide its comments on the draft evaluation report within 2 weeks of its receipt. A drafting meeting shall be held at the request of the evaluated Member State, no later than 5 working days from the receipt of the comments from the evaluated Member State. The comments of the evaluated Member State shall be reflected in the draft evaluation report where relevant.
2. The evaluation report shall analyse the qualitative, quantitative, operational, administrative and organisational aspects and shall list the deficiencies, areas of improvement and best practices identified during the evaluation.
3. Findings may be assessed as one of the following:
| (a) | best practice; |
| (b) | improvement necessary; |
| (c) | non-compliant. |
4. The Commission shall adopt the evaluation report by means of an implementing act. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 30(2). The evaluation report shall be adopted no later than 4 months after the end of the evaluation activity.
The evaluation report shall contain recommendations for remedial actions aimed at addressing the deficiencies and areas for improvement identified during the evaluation and give an indication of the priorities for implementing them. The evaluation report may set reasonable time limits established in cooperation with the Member State concerned for the implementation of recommendations. Where the evaluation identifies a serious deficiency, the specific provisions set out in Article 22 shall apply.
The Commission shall transmit the evaluation report to the European Parliament and the Council no later than 14 days after the report is adopted.
5. Where the evaluated Member State, within 10 working days from the drafting meeting, substantially contests the content of the draft evaluation report or the nature of a finding, the report to be adopted by the Commission shall be limited to findings and shall not contain recommendations. In such cases, and without prejudice to Article 22, the Commission shall submit, no later than 4 months after the end of the evaluation activity, a separate proposal to the Council for the adoption of recommendations by means of an implementing decision. The proposal may set reasonable time limits established in cooperation with the Member State for the implementation of recommendations and shall give an indication of priorities for implementing them.
The Council shall adopt the recommendations and shall transmit them to European Parliament and the national parliaments.
Article 21
Follow-up and monitoring
1. Within 2 months of the adoption by the Commission of the evaluation report including recommendations, pursuant to Article 20(4), or the adoption of the Council recommendations, pursuant to Article 20(5), the evaluated Member State shall submit to the Commission and the Council an action plan to implement all the recommendations. The other Member States shall be invited to comment on the action plan.
2. After consulting the team which has carried out the evaluation activity, the Commission shall provide the evaluated Member State with a review of the adequacy of the action plan within 1 month of its submission.
If the Commission does not consider that the action plan is adequate, the evaluated Member State shall submit a revised action plan within 1 month of the receipt of the review. The Commission shall also present the review of the action plan to the Council.
3. The evaluated Member State shall report to the Commission and the Council on the implementation of its action plan every 6 months from the date of notice of receipt of the review of the action plan until the Commission considers the action plan fully implemented. Depending on the nature of the deficiencies and the state of implementation of the recommendations, the Commission, in consultation with the evaluated Member State, may require of the evaluated Member State a different reporting frequency.
If the evaluated Member State does not report regularly on the implementation of the action plan, the Commission shall inform the Council and the European Parliament that the evaluated Member State is not fulfilling its obligations.
The Commission may carry out verification visits to monitor the progress of the implementation of the action plan.
Where the Commission considers the action plan fully implemented, it shall inform the Member States about the closure of the action plan.
CHAPTER IV - SERIOUS DEFICIENCY AND SPECIFIC FORMS OF EVALUATION
Article 22
Specific provisions in the event of a serious deficiency identified by the evaluation report
1. At the end of the evaluation activity, the Commission and the Member State lead experts, on behalf of the team, shall inform in written form the evaluated Member State that a serious deficiency was identified. The Council shall also be informed without delay.
The evaluated Member State shall take immediate remedial actions including, where necessary, mobilising all appropriate operational and financial means. The evaluated Member State shall inform without delay the Commission and the other Member States about the immediate remedial actions taken or planned. In parallel, the Commission shall inform the relevant Union bodies, offices and agencies referred to in Article 7 of the serious deficiency with a view to their possibly providing support to the evaluated Member State.
2. The evaluation report drafted in accordance with Article 20(1), (2) and (3) shall include as a priority the findings that led to the determination of a serious deficiency. The title and the conclusion of the evaluation report shall clearly indicate that there is a serious deficiency or that there are serious deficiencies. It shall be accompanied by draft recommendations, including on immediate remedial actions. The Commission shall transmit the draft evaluation report to the evaluated Member State within 2 weeks of the end of the evaluation activity.
The evaluated Member State shall provide its comments on the draft evaluation report within 10 working days of its receipt. A drafting meeting shall be held at the request of the evaluated Member State, no later than 5 working days from the receipt of the comments from the evaluated Member State.
3. On duly justified imperative grounds of urgency relating to the serious deficiency, the Commission shall adopt the evaluation report no later than 6 weeks after the end of the evaluation activity by means of an immediately applicable implementing act in accordance with the procedure referred to in Article 30(3). The Commission shall transmit the evaluation report to the European Parliament.
4. In light of the findings, the team shall draft recommendations for remedial actions aimed at addressing the serious deficiency identified in the evaluation report.
Within 6 weeks of the adoption of the evaluation report, the Commission shall present to the Council the evaluation report together with a proposal for recommendations for remedial actions aimed at addressing the serious deficiency identified during the evaluation and an indication of the priorities for implementing them.
The Council shall adopt recommendations within 1 month of receipt of the proposal.
The Council shall transmit the recommendations to the European Parliament and to the national parliaments.
The Council shall set proportionate time limits for the implementation of the recommendations related to a serious deficiency and specify the frequency of the reporting by the evaluated Member State to the Commission and the Council on the implementation of its action plan.
5. If a visit reveals a serious deficiency deemed to constitute a serious threat to public policy or internal security within the area without internal border control, or identified on the basis of the risk of a systematic fundamental rights violation, the Commission shall immediately inform the European Parliament and the Council thereof.
The Council shall urgently discuss the matter, and shall strive to adopt, on the basis of a proposal from the Commission, by means of an implementing act, recommendations setting out appropriate measures to remedy or limit the impact of the serious deficiency on public policy or internal security within the area without internal border control, or the systematic fundamental rights violation within 2 weeks of receipt of the proposal. The Council decision setting out the recommendations shall be without prejudice to Article 29 of Regulation (EU) 2016/399 and Article 42(1) of Regulation (EU) 2019/1896.
The Council shall transmit the recommendations to the European Parliament.
6. The evaluated Member State shall submit to the Commission and the Council its action plan within 1 month of the adoption of the recommendations. The other Member States shall be invited to comment on the action plan. The Commission shall transmit the action plan to the European Parliament.
After consulting the team which has carried out the evaluation activity, the Commission shall provide the evaluated Member State with a review of the adequacy of the action plan within 2 weeks from its submission. If the Commission does not consider that the action plan is adequate, the evaluated Member State shall submit a revised action plan within 2 weeks of the receipt of the review.
The Commission shall present the review of the action plan to the Council and transmit it to the European Parliament.
The evaluated Member State shall report to the Commission and the Council on the implementation of its action plan until the Commission considers the action plan fully implemented.
7. To verify the progress made in the implementation of the recommendations related to the serious deficiency, the Commission shall organise a revisit that is to take place no later than 1 year from the date of the evaluation activity.
The team shall draft a revisit report in accordance with Article 20(1) assessing the progress made in the implementation of the Council recommendations and concluding whether the serious deficiency has been addressed.
The Commission shall adopt, by means of an implementing act, a revisit report. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 30(2). The Commission shall submit the revisit report to the Council.
8. The Council may express its position on the revisit report and may, where appropriate, invite the Commission to submit a proposal for recommendations for remedial actions aimed at addressing the persisting serious deficiency identified in the revisit report. In such cases, paragraphs 6 and 7 shall apply.
9. Where the Commission considers that the action plan can be closed, it shall organise a verification visit and inform the Council on the outcome of the verification visit. The Commission shall also inform the European Parliament that the action plan can be closed.
The Council shall, on the basis of the Commission proposal, while taking into account the outcome of the verification visit, adopt an implementing decision approving the closure of the action plan.
Article 23
Specific provisions for first-time evaluations
1. In light of the findings, the evaluation report following a first-time evaluation drafted in accordance with Article 20(1) to (4) shall be accompanied by draft recommendations for remedial actions.
The Commission shall submit a proposal to the Council to adopt the recommendations concerned no later than 4 months after the end of the evaluation activity.
2. The Council shall adopt recommendations. It may set time limits for the implementation of specific recommendations.
The Council shall transmit the recommendations to the European Parliament and to the national parliaments.
3. The evaluated Member State shall submit to the Commission and the Council an action plan to implement all the recommendations.
After consulting the team which has carried out the evaluation activity, the Commission shall provide the evaluated Member State with a review of the adequacy of the action plan within 1 month of its submission.
If the Commission does not consider that the action plan is adequate, the evaluated Member State shall submit a revised action plan.
The evaluated Member State shall report to the Commission and the Council on the implementation of the action plan every 6 months from the date of notice of receipt of the review.
4. Where the evaluation report concludes that the evaluated Member State does not fulfil the conditions necessary to apply the Schengen acquis, the Commission shall organise one or more revisits.
The team shall draft a revisit report in accordance with Article 20(1) to (4) assessing the progress made in the implementation of the Council recommendations.
The Commission shall adopt, by means of an implementing act, the revisit report. That implementing act shall be adopted in accordance with the examination procedure referred to in Article 30(2). The Commission shall submit the revisit report and a proposal for Council recommendations, if appropriate, to the Council for adoption by means of an implementing decision.
5. When considering that the action plan can be closed, the Commission shall organise a verification visit before the closure of the action plan.
The Commission shall inform the European Parliament and the Council of the outcome of the verification visit. The Commission shall inform the European Parliament and the Council that the action plan can be closed.
The Council shall, on the basis of the Commission proposal and taking into account the outcome of the verification visit, adopt an implementing decision approving the closure of the action plan.
6. Member States for which a Council decision stating that the provisions of the Schengen acquis are to apply in full has been adopted shall be evaluated in accordance with Article 1(2), point (a), no later than 1 year from the date of the full application of the Schengen acquis in that Member State. The annual evaluation programme shall be updated to this end.
Article 24
Specific provision for thematic evaluations
Article 23(1), (2) and (3) shall apply to thematic evaluations.
If the thematic evaluation identifies a serious deficiency, Article 22 shall apply.
CHAPTER V - SCHENGEN GOVERNANCE AND FINAL PROVISIONS
Article 25
Reporting to the European Parliament and to the Council
The Commission shall submit annually to the European Parliament and to the Council a comprehensive report on the evaluations carried out pursuant to this Regulation during the previous year. That report shall be made public.
The report referred to in the first paragraph shall include information on the evaluations carried out during the previous year, on the functioning of the pool of experts, including the availability of Member State experts, on the conclusions drawn from those evaluations and on the state of play with regard to remedial actions taken by the Member States. That report shall, on the basis of the results of the evaluation and monitoring activities carried out pursuant to this Regulation, identify common issues, best practices and innovative solutions in order to improve the implementation of the Schengen acquis. The report shall take into account synergies with other monitoring tools and mechanisms in order to increase awareness about the functioning of the area without internal border control.
The Commission shall transmit the report referred to in the first paragraph to the national parliaments without delay. The Council shall discuss the report, considering the contribution of the evaluations to the functioning of the area without internal border control.
The Commission shall inform the European Parliament and the Council at least twice a year about the state of play with regard to the implementation of action plans drawn up by the Member States. In particular, the Commission shall provide information on its reviews of the adequacy of action plans and on the outcome of revisits and verification visits, as well as its observations where it considers that there has been a considerable lack of progress in the implementation of an action plan.
Article 26
Schengen Evaluation Guide
The Commission, in close cooperation with the Member States, shall establish and, if necessary, update guidelines on, in particular:
| (a) | training responsibilities of experts, the Commission representatives and observers; |
| (b) | preparatory activities for evaluations; |
| (c) | conducting visits, including unannounced visits; |
| (d) | conducting evaluation and monitoring activities, including by questionnaire or, exceptionally, by other remote methods; |
| (e) | drafting process and the inclusion of documentary and digital material in evaluation reports; |
| (f) | follow-up procedure, in particular regarding revisits and verification visits; |
| (g) | synergies with other evaluation and monitoring activities; |
| (h) | logistics and financial issues relating to the organisation of evaluation and monitoring activities; |
| (i) | the verification of the activities of the Union bodies, offices and agencies insofar as they perform functions on behalf of the Member States to assist in the operational application of provisions of the Schengen acquis. |
Article 27
Review
The Commission shall undertake a review of the application of this Regulation and submit a report to the Council within 6 months of the adoption of all evaluation reports regarding the evaluations covered by the first multiannual evaluation programme adopted in accordance with this Regulation. That review shall cover all the elements of this Regulation, including the functioning of the procedures for adopting acts under the evaluation mechanism. The Commission shall submit the report to the European Parliament without delay.
Article 28
Sensitive information
1. The team members, observers and trainee experts shall regard as confidential any information they acquire in the course of performing their duties.
2. The classification status of the reports shall be ‘sensitive non-classified’ in accordance with Decision (EU, Euratom) 2015/443. They shall be classified as ‘RESTREINT UE/EU RESTRICTED’ within the meaning of Decision (EU, Euratom) 2015/444, where such a classification is required pursuant to Article 5(3) of that Decision or following a justified request by the evaluated Member State.
The Commission, after consulting the Member State concerned, shall decide which part of the evaluation report can be made public.
3. The transmission and handling of classified information and documents for the purposes of this Regulation shall take place in compliance with the applicable security rules. Such rules shall not preclude information being made available to the European Parliament and to the relevant Union bodies, offices and agencies referred to in Article 7.
Article 29
Conditions for the participation of Ireland
1. Experts of Ireland shall only participate in the evaluation of the part of the Schengen acquis in which Ireland has been authorised to participate.
2. The evaluations shall only cover the effective and efficient application by Ireland of the part of the Schengen acquis in which it has been authorised to participate.
3. Ireland shall only take part in the adoption of the recommendations by the Council as regards the part of the Schengen acquis in which it has been authorised to participate.
Article 30
Committee procedure
1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Where the committee delivers no opinion, the Commission shall not adopt the draft implementing act and Article 5(4), third subparagraph, of Regulation (EU) No 182/2011 shall apply.
3. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.
Article 31
Transitional provisions
1. The first multiannual evaluation programme and the first annual evaluation programme under this Regulation shall be established by 1 December 2022 and shall start on 1 February 2023.
The first multiannual evaluation programme under this Regulation shall take into account the evaluations already carried out under the second multiannual programme adopted under Regulation (EU) No 1053/2013 and shall be drawn up as a continuation of that programme.
2. The standard questionnaire adopted under Regulation (EU) No 1053/2013 shall be used until the standard questionnaire provided for under Article 14 of this Regulation has been established.
3. For evaluations carried out before 1 February 2023, the adoption of evaluation reports and recommendations shall be carried out in accordance with Regulation (EU) No 1053/2013. The follow-up and monitoring activities of such evaluations, starting with the submission of the action plans, shall be carried out in accordance with this Regulation.
Article 32
Repeal
Regulation (EU) No 1053/2013 is repealed with effect from 1 October 2022, with the exception of the provisions concerning the adoption of the evaluation reports and recommendations, which shall apply until the evaluation reports and recommendations referred to in Article 31(3) of this Regulation are adopted.
References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in the Annex.
Article 33
Entry into force and application
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
It shall apply from 1 October 2022.
This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.