Considerations on COM(2021)278 - Establishment and operation of an evaluation and monitoring mechanism to verify the application of the Schengen acquis

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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
 
table>(1)The Schengen area without border control at internal borders relies on the effective and efficient application by the Member States of the Schengen acquis. That acquis comprises measures in the area of external borders, compensatory measures for the absence of controls at internal borders and a strong monitoring framework, which together strengthen free movement and ensure a high level of security, justice and protection of fundamental rights, including the protection of personal data.
(2)Peer-to-peer evaluation and monitoring of the application of the Schengen acquis have been core elements of the Schengen area since 1998 and contribute to maintaining a high level of accountability and ownership of results and to strengthening mutual trust among Member States.

(3)A specific Schengen evaluation and monitoring mechanism was established by Council Regulation (EU) No 1053/2013 (2) and became operational in 2015.

(4)In order to increase its effectiveness and efficiency, the Schengen evaluation and monitoring mechanism should be enhanced. The revised evaluation and monitoring mechanism should aim to maintain a high level of mutual trust among Member States by ensuring that Member States apply the Schengen acquis effectively in accordance with the agreed common standards, fundamental principles and norms, thereby contributing to a well-functioning Schengen area.

(5)The evaluation and monitoring mechanism should achieve its goals through objective and impartial evaluations that are able to quickly identify deficiencies in the application of the Schengen acquis that could disrupt the correct functioning of the Schengen area, ensure that those deficiencies are swiftly addressed, and provide the basis for a dialogue on the functioning of the Schengen area as a whole. 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 is to be conducted by Member States in collaboration with the Commission. This requires close cooperation between the Member States and the Commission, a balanced distribution of shared responsibilities and the maintenance of the peer-review nature of the system. It also requires an enhanced role for the Council and the close involvement of the European Parliament. Given the extent of the changes to the evaluation and monitoring mechanism established by Regulation (EU) No 1053/2013, that Regulation should be repealed and replaced by a new Regulation.

(6)The evaluation and monitoring mechanism should be able to cover all areas of the Schengen acquis – present and future, in particular the management of the external borders, the 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 – except those where a specific evaluation mechanism already exists under Union law. The evaluation and monitoring mechanism should encompass all relevant legislation and operational activities which are part of the Schengen acquis and which contribute to the functioning of Schengen area.

(7)The correct functioning of the authorities that apply the Schengen acquis should be taken into account in all the evaluations in line with the European Council conclusions of 1 and 2 March 2012. The evaluation should also cover the practices of private entities, such as airlines or external service providers, insofar as they are involved in or affected by the implementation of the Schengen acquis while cooperating with the Member States.

(8)Given the increasing role of Union bodies, offices and agencies in the implementation of the Schengen acquis, the evaluation and monitoring mechanism should support the verification of the activities of those 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. Verification of those activities in this regard should be embedded into the evaluation of the Member States, reflected in the report and carried out without prejudice to and in a manner that fully respects the responsibilities of the Commission and the relevant governing bodies of the agencies, offices and bodies concerned under their establishing regulations and their own evaluation and monitoring procedures therein. Where evaluations identify deficiencies in relation to functions fulfilled or supported by Union bodies, offices and agencies, the Commission should inform their relevant governing bodies, as well as the Council and the European Parliament.

(9)Evaluation and monitoring activities should be targeted, taking into account the results of previous evaluations, risk analyses, new legislation, information obtained by the Commission in accordance with this Regulation and, if relevant, the results of national quality-control mechanisms. They should be supported through reinforced cooperation with Union bodies, offices and agencies participating in the implementation of the Schengen acquis in order to provide relevant information and expertise for the planning or conducting of evaluation or monitoring activities, through the systematic involvement of such bodies, offices and agencies in Schengen evaluations, including by nominating observers to participate in the evaluations, and through improved risk analyses and information sharing, including on corruption and organised crime insofar as these may undermine the application of the Schengen acquis by the Member States.

Such cooperation and involvement concern in particular the European Border and Coast Guard Agency (Frontex), governed by Regulation (EU) 2019/1896 of the European Parliament and of the Council (3), the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA), established by Regulation (EU) 2018/1726 of the European Parliament and of the Council (4), the European Union Agency for Law Enforcement Cooperation (Europol), established by Regulation (EU) 2016/794 of the European Parliament and of the Council (5), the European Union Agency for Fundamental Rights (FRA), established by Council Regulation (EC) No 168/2007 (6), and the European Data Protection Supervisor, established by Regulation (EU) 2018/1725 of the European Parliament and of the Council (7).

The cooperation should also become more reciprocal, and the agencies should not only be contributors but also benefit from being involved in the evaluation and monitoring mechanism, thereby ensuring their enhanced operational response. In order to avoid any conflict of interest where the activities of a Union body, office or agency involved in the implementation of the Schengen acquis, insofar as they perform functions on behalf of the Member States to assist in the operational application of provisions of the Schengen acquis, are verified as part of the evaluation of a Member State, observers from a Union body, office or agency should not participate in the discussions on the findings related to the activity of that Union body, office or agency.

(10)The vulnerability assessment carried out by Frontex is a complementary mechanism to the evaluation and monitoring mechanism established by this Regulation for ensuring quality control at Union level and ensuring constant preparedness at both Union and national level to respond to any challenges at the external border. That vulnerability assessment should be taken into account in preparing the evaluation and monitoring activities, thus ensuring up-to-date situational awareness. Both mechanisms constitute a component of European integrated border management. Synergies between the vulnerability assessment and the evaluation and monitoring mechanism should be maximised with a view to establishing an improved situational picture of the functioning of the Schengen area, avoiding, to the extent possible, duplication of efforts and conflicting recommendations. For that purpose, regular exchange of information between Frontex and the Commission on the results of both mechanisms should take place. In order to increase the strategic focus and achieve a more targeted evaluation design, it is also necessary to further increase synergies with the relevant mechanisms and platforms operated by Union agencies and national administrations, such as the European Multidisciplinary Platform Against Criminal Threats (EMPACT), and with the oversight conducted by the Commission with the support of eu-LISA as regards the preparation of the Member States for the implementation of relevant IT systems as well as with the findings of the national quality-control mechanisms, if relevant.

(11)During the evaluation, particular attention should be paid to verifying respect for fundamental rights in the application of the Schengen acquis, in addition to the evaluation of the correct implementation and application of the data protection requirements of the Schengen acquis carried out by separate evaluations. To increase the capacity of the evaluation and monitoring mechanism to identify violations of fundamental rights in relevant policy areas, additional measures should be implemented. Schengen evaluators should be properly trained in this regard, relevant information from the FRA should be better utilised and its experts better involved in the design and implementation of evaluations. Furthermore, it should be possible for evidence which is made public or provided through independent monitoring mechanisms or by relevant third parties, such as ombudspersons, authorities monitoring respect for fundamental rights, and non-governmental and international organisations, at their own initiative, to be taken into account in the programming and design of evaluations. In the implementation of the evaluations, such as conducts of visits, the entities and third parties supporting the Member States should be understood as those which are legally or contractually linked to the latter, and allowed to perform certain tasks on their behalf in the application of the Schengen acquis. In preparing the evaluation reports, only information verified during the evaluation activity should be taken into account.

(12)The evaluation and monitoring mechanism should set up transparent, efficient and clear rules on the forms and methods to be applied for the evaluation and monitoring activities, the use of highly qualified experts and the follow-up to the findings of the evaluations.

(13)The forms of evaluations and methods should be made more flexible to increase the efficiency of the evaluation and monitoring mechanism and its capacity to adapt to new circumstances and legislative developments and to streamline the use of the resources of the Member States, Commission and the Union bodies, offices and agencies. Periodic evaluations through visits should be the primary means of evaluation. Unannounced evaluations and thematic evaluations should be used in a balanced way, on the basis of risk analyses, following the adoption of new legislation or on the basis of information obtained by the Commission in accordance with this Regulation. The forms of evaluation should be clearly defined. Depending on the policy area and the nature of the evaluation and monitoring activity, the evaluation and monitoring mechanism should allow for the evaluation of several Member States at the same time and, in exceptional cases, should make it possible to conduct entirely or partly remote evaluations and combine the evaluation of policy areas. Under the evaluation and monitoring mechanism, it should be possible to produce comprehensive Member State evaluation reports assessing the Member State’s overall performance in the application of the Schengen acquis.

(14)Thematic evaluations should be used to provide an analysis of Member State practices in the implementation of the Schengen acquis. They should take place to assess the implementation of major legislative changes as they start to apply and of new initiatives, as well as to assess issues across policy areas or practices of Member States facing similar challenges.

(15)Unannounced visits should, depending on their purpose, take place with only short prior notification or without prior notification to the Member State concerned and be based on risk analyses or other relevant grounds, as appropriate. It should be possible to organise unannounced visits to evaluate the application of the Schengen acquis at internal borders, as well as the emerging or systemic problems that could potentially have a significant impact on the functioning of the Schengen area, or where there are grounds to consider that a Member State is seriously neglecting obligations under the Schengen acquis. Unannounced visits should normally take place with a prior notification of at least 24 hours. Unannounced visits without prior notification should take place to verify compliance with obligations under the Schengen acquis, in particular at internal borders and in response to substantiated indications as regards serious violations of fundamental rights in the application of the Schengen acquis. In such cases, prior notification would defeat the objective of the visit. It should be possible for unannounced visits concerning the evaluation of the application of the Schengen acquis applicable at internal borders to verify, in particular, the absence of border control at internal borders, including that the exercise of police powers or any other public powers exercised in the internal border area does not have an effect equivalent to border checks.

(16)Programming the activities carried out under this Regulation via multiannual and annual evaluation programmes has already proven its added value in ensuring predictability and certainty. Therefore, the Commission, in cooperation with the Member States, should adopt multiannual and annual evaluation programmes. Those programmes should also provide the necessary flexibility to be able to adapt to the dynamic nature of the Schengen acquis over time. In the event of force majeure, adjustments to those programmes should be made in agreement with the Member States concerned without the need for a formal amendment of the programmes. The multiannual evaluation programme, adopted for 7 years, should be able to identify, where relevant, specific priority areas, within the policy areas, to be covered by the periodic evaluations. This approach should allow for more flexibility, better prioritisation and a more balanced and strategic use of all tools available. The extension of the multiannual evaluation programme from 5 to 7 years should also lead to an increased, closer and more targeted monitoring of the Member States without reducing the level of scrutiny.

(17)Evaluation and monitoring activities should be carried out by teams consisting of Commission representatives and experts designated by Member States. Those representatives and experts should have appropriate qualifications, including solid theoretical knowledge and experience, and should have undertaken the relevant existing training. The Commission should ensure training courses for Schengen evaluators in all relevant policy areas, including fundamental rights components and the correct functioning of the authorities. The training received by an expert to become a Schengen evaluator should be able to allow for acknowledgment at national level of his or her skills, knowledge and abilities acquired during such training. If no training courses are available for a policy area, resulting in a lack of trained experts, an expert aspiring to become a Schengen evaluator should be able to accompany an evaluation mission as a trainee expert.

(18)In order to ensure the participation of a sufficient number of experienced experts in a faster and less burdensome way, a pool of experts should be established and maintained by the Commission in close cooperation with the Member States. The pool should be the primary source of experts for evaluation and monitoring activities. Each Member State should designate at least one expert per policy area in which it is evaluated, unless the designation would substantially affect the discharge of national tasks.

(19)More flexibility should be provided as regards the size of the evaluation and monitoring teams in order to increase the efficiency and to reduce administrative burden. Therefore, the Commission should define and adapt the size of the teams depending on the needs and challenges related to each evaluation and monitoring activity while maintaining the balance between the number of Commission representatives and Member State experts, in order to reflect the peer-to-peer and shared responsibility principles. A balance should be found between the principles of shared responsibility and predictability and the need for flexibility during the selection process of experts. When setting up the teams, therefore, the Commission should, to the extent possible, ensure geographical balance, a variety of profiles and rotation. Particular attention should be paid to the capacity of national administrations in order to ensure that the designation of experts in evaluation and monitoring activities does not constitute an excessive burden on the Member States or for the individual situation of experts. The experts invited for specific evaluations and their national authorities should respond positively to invitations; it should be possible to turn down an invitation only if duly justified on serious professional or personal grounds.

(20)The operational costs related to the evaluation and monitoring activities, such as travel, accommodation and food, should be covered by the Union budget. It should be possible for any additional daily allowances of national experts participating in evaluation and monitoring missions and the staff costs of those replacing those experts during their absence to be covered by the national programmes of the Member States under the relevant Union funds, in accordance with the objectives and applicable rules of those funds.

(21)Evaluation reports should be concise and succinct. They should focus on deficiencies with significant impact and highlight areas where significant improvements could be made. Minor findings should not form part of the reports. The team should nevertheless communicate those findings to the evaluated Member State at the end of the evaluation activity, including to the authorities responsible for the relevant national quality-control mechanism. The team should actively seek to identify best practices, which should be added to the reports. In particular, new and innovative measures that significantly improve the implementation of the common rules and that could be put into practice by other Member States should be highlighted as best practices for the purposes of the report.

(22)Evaluation reports should, as a rule, contain recommendations on how to remedy deficiencies identified, including fundamental rights violations, and be adopted in a single act by the Commission by means of an implementing act through the examination procedure in accordance with Article 5 of Regulation (EU) No 182/2011 of the European Parliament and of the Council (8) without delay. The consolidation of the report and recommendations within a single document and subject to a single adoption procedure reinforces the intrinsic connection between the evaluation findings and recommendations. In addition, the simultaneous publication of the report and recommendations should enable Member States to address the deficiencies faster and more efficiently. At the same time, the use of the examination procedure should ensure Member States’ engagement in the decision-making process leading to the adoption of the recommendations.

(23)Nevertheless, in order to strengthen mutual trust among Member States, to ensure their better coordination at Union level and to reinforce peer pressure among them, the implementing power to adopt the recommendations for remedial actions in certain cases, as well as to close the action plans in certain cases, should be conferred on the Council given its political role in exerting such peer pressure. Such an implementing power is justified by the fact that specific powers were conferred on the Council, under Article 70 TFEU, in the field of mutual evaluation of the implementation of Union policies within the area of freedom, security and justice. It adequately reflects the purpose of an evaluation mechanism based on this lex specialis, which is, within this particular area, to fulfil a complementary function of monitoring the effectiveness of the practical implementation of Union policies through peer review. Therefore, the Council should adopt recommendations in cases of political importance and general interest for the functioning of the Schengen area. Such cases should be considered to arise where the evaluated Member State substantially contests the content of the draft evaluation report or the nature of a finding, thereby demonstrating that potential problems may have arisen during the evaluation. The same should apply where an evaluation concludes that there exists a serious deficiency, in cases of thematic evaluations, or in cases of first-time evaluations. Equally, as a part of its role in the monitoring phase of the evaluation and monitoring mechanism, the Council should adopt implementing decisions approving the closure of action plans in cases of serious deficiencies and first-time evaluations.

(24)In addition, where evaluations identify a serious deficiency, specific provisions should apply to ensure the prompt adoption of remedial measures. Given the risk posed by such deficiencies, as soon as the evaluated Member State has been informed about a serious deficiency, it should start immediately implementing actions to remedy the deficiency, including, where necessary, mobilising all appropriate operational and financial means. Remedial action should be subject to tighter time limits and closer political scrutiny and monitoring throughout the process. In this regard, the Commission should immediately inform the Council when an evaluation identifies a serious deficiency, including where a serious deficiency is deemed to constitute a risk to public policy or public security within the Schengen area. The Commission should send the report to the Council and the European Parliament and organise a revisit no later than 1 year after the date of the evaluation to verify whether the Member State has remedied the shortcomings concerned. The Commission should present a revisit report to the Council following the revisit.

(25)The identification of a serious deficiency requires a thorough case-by-case assessment on the basis of clear criteria regarding the nature, scale and potential impact of the problems, which may be different for each policy area. Different key elements for the effective implementation of the Schengen acquis and a different combination of factors could lead to the classification of a finding as a serious deficiency. However, if it is considered that a shortcoming identified could constitute a violation of fundamental rights or has, or could over time have, a significant negative impact on one or more Member States or on the functioning of the area without internal border control, such a shortcoming is to be regarded as a serious deficiency. Where a serious deficiency in the carrying out of external border control is identified in an evaluation report, Articles 21 and 29 of Regulation (EU) 2016/399 of the European Parliament and of the Council (9) may apply.

(26)The evaluation and monitoring mechanism should comprise a robust follow-up and monitoring component. That component should be ensured by the Commission, in close cooperation with the Council, and the European Parliament where relevant, without creating a disproportionate burden for the actors involved. Evaluations should be followed up with action plans. While drawing up the action plans, the evaluated Member States should fully take into consideration the funding possibilities provided by the Union and make the best use of those resources. To speed up the process, the Commission should provide reviews of the adequacy of the action plans, for example in the form of a letter. In order to ensure a timely follow-up, if the Commission services do not consider the action plan adequate, the Member State concerned should submit a revised action plan within 1 month of receipt of the review. The frequency of the follow-up reporting by the Member State to the Commission and the Council on the implementation of the action plans should, as a rule, be every 6 months. However, the Commission should be able to indicate a different reporting frequency, including reduced reporting frequency, for example in cases where the evaluation identified only ‘improvement necessary’ findings.

(27)As part of its monitoring activities, it should be possible for the Commission to organise revisits and verification visits. Revisits should be organised to monitor the progress of the implementation of an action plan 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 in the respective evaluated policy area. The revisit report should present the progress made to implement the recommendations and conclude whether the serious deficiency has been addressed. It should be possible for the report to be accompanied by recommendations, if necessary. As a means of exerting peer pressure, the Council should be able to express its position on the report and invite the Commission to propose recommendations.

(28)It should be possible to carry out verification visits to monitor the progress of the implementation of an action plan following an evaluation that did not identify a serious deficiency, where deemed necessary. Verification visits should always be organised before the closure of an action plan following an evaluation that identified a serious deficiency and a first-time evaluation. In terms of the organisational and reporting requirements, verification visits should be lighter than evaluation visits. In particular, they should comprise smaller teams and should not lead to new findings or require the adoption of a report. The Council should be more actively involved in the monitoring phase, should be informed by the Commission in writing, for example in the form of a letter, of the outcome of the verification visits and should approve the closure of action plans in cases of serious deficiencies and first-time evaluations, on the basis of a Commission proposal.

(29)It is essential that the European Parliament and the Council regularly hold discussions in order to raise awareness of the importance of the effective implementation of the Schengen acquis and encourage Member States to remedy the deficiencies identified, as appropriate. In particular, the Council should exercise its political role in relation to the governance of the Schengen area by discussing the reports submitted by the Commission and by holding political discussions concerning the effective implementation of the Schengen acquis and proper functioning of the area without internal border control. The Commission should provide adequate input to facilitate those discussions, including through the adoption of a comprehensive annual report covering the evaluations carried out during the previous year and the state of implementation of recommendations. On the basis of that report and those results, the Council should hold horizontal discussions in order to contribute to the more efficient and swifter implementation of the recommendations and their correlated remedial actions.

(30)The evaluation and monitoring mechanism established by this Regulation should fulfil a complementary function of monitoring the effectiveness of the practical implementation of Union policies through peer review. 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 should not be affected.

(31)The classification status of the evaluation and revisit reports should be ‘sensitive non-classified’ in accordance with the applicable security rules set out in Commission Decision (EU, Euratom) 2015/443 (10). They should be classified as ‘RESTREINT UE/EU RESTRICTED’ within the meaning of Commission Decision (EU, Euratom) 2015/444 (11), where such a classification is required pursuant to Article 5(3) of that Decision or following a justified request by the evaluated Member State.

(32)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 Article 12, point (c), of the Treaty on European Union (TEU) as regards the national parliaments, the Council and the Commission should inform the European Parliament and the national parliaments of the content and results of the evaluations. In addition, if the Commission submits a proposal to amend this Regulation, the Council would, in accordance with Article 19(7), point (h), of its Rules of Procedure (12), consult the European Parliament in order to take into consideration its opinion, to the fullest extent possible, before adopting a final text.

(33)The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 and delivered an opinion on 27 July 2021 (13).

(34)Regulation (EU) 2016/679 of the European Parliament and of the Council (14) applies to the processing of personal data by the Member States when carrying out their responsibilities under this Regulation. Regulation (EU) 2018/1725 applies to the processing of personal data by the institutions, bodies, offices and agencies of the Union when carrying out their responsibilities under this Regulation.

(35)In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission to establish the multiannual and annual evaluation programmes, to establish and update a standard questionnaire and to adopt evaluation and revisit reports. Those powers should be exercised in accordance with Regulation (EU) No 182/2011.

(36)The Commission should adopt immediately applicable implementing acts where, in duly justified cases relating to a serious deficiency, imperative grounds of urgency so require.

(37)In accordance with Articles 1 and 2 of the Protocol No 22 on the position of Denmark, annexed to the TEU and 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 6 months after the Council has decided on this Regulation whether it will implement it in its national law.

(38)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 the TFEU, and Article 6(2) of Council Decision 2002/192/EC (15).

(39)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 latter’s association with the implementation, application and development of the Schengen acquis (16) which fall within the areas referred to in Article 1 of Council Decision 1999/437/EC (17).

(40)As regards Switzerland, this Regulation constitutes a development of the 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 (18) which fall within the areas referred to in Article 1 of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC (19).

(41)As regards Liechtenstein, this Regulation constitutes a development of the 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 (20) which fall within the areas referred to in Article 1 of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU (21).

(42)As regards Cyprus, Bulgaria and Romania, and Croatia, this Regulation constitutes an act building upon, or otherwise related to, the Schengen acquis within, respectively, the meaning of Article 3(1) of the 2003 Act of Accession, Article 4(1) of the 2005 Act of Accession and Article 4(1) of the 2011 Act of Accession.

(43)Given that the verification in accordance with the applicable Schengen evaluation procedures concerning Bulgaria, Romania and Croatia has already been completed pursuant to their respective Acts of Accession, the verification under Article 1(2), point (b), of this Regulation should not be relaunched in respect of those Member States,