Explanatory Memorandum to COM(2010)624 - Establishment of an evaluation mechanism to verify 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(2010)624 - Establishment of an evaluation mechanism to verify application of the Schengen acquis. |
|---|---|
| source | COM(2010)624  |
| date | 16-11-2010 |
- Grounds for and objective of the proposal
The objective of the proposed Regulation is to establish a legal framework for evaluating correct application of the Schengen acquis . This evaluation mechanism is designed to maintain mutual trust between Member States in their capacity to apply, effectively and efficiently, the accompanying measures making it possible to maintain an area without internal borders.
The overall objectives of the new mechanism should be to ensure transparent, effective and consistent implementation of the Schengen acquis , while also reflecting the changes in the legal situation after integration of the Schengen acquis into the framework of the European Union.
The 2004 Hague Programme — the multiannual programme for justice and home affairs — 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’ .
In response to this request and in order to incorporate the Schengen evaluation mechanism into the EC legal system and to remedy the weaknesses identified in the current system, in March 2009 the Commission adopted two proposals i on a revised mechanism for Schengen evaluation. Two separate legal instruments (a ‘first pillar’ Regulation and a ‘third pillar’ Decision) were needed to cover the whole area of Schengen cooperation in a coherent framework. In October 2009 these proposals were rejected by the European Parliament, which argued that the Commission should have involved it in adoption of the proposals by co-decision.
With the entry into force of the Lisbon Treaty, the ‘third pillar’ proposal is now obsolete. It was withdrawn in the ‘Omnibus Communication’ of December 2009 i.
The Stockholm Programme i adopted by the European Council in December 2009 ‘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 Frontex in this field’.
This new proposal is therefore being put forward now. At the same time, the remaining previous proposal (the ‘first pillar’ Regulation) is withdrawn.
This new proposal takes account of the discussions held in the Council on the March 2009 proposals. In particular, it proposes an increased role for Member States in the evaluation mechanism, in order to maintain mutual trust and provide greater flexibility in implementation of the mechanism. Co-decision is proposed as the legislative procedure, the European Parliament (EP) being a full participant in the area of justice and home affairs. To enhance transparency, regular reporting to the Council and EP is proposed on evaluations carried out, conclusions drawn from evaluations and follow-up measures taken by the Member States concerned.
- General context
The area without internal borders set up by the Schengen acquis — the Schengen area —was developed within an intergovernmental framework in the late ’80s and early ’90s by Member States willing to abolish internal border controls and implement accompanying measures to this end, such as common rules on external border controls, a common visa policy, police and judicial cooperation and establishment of the Schengen Information System (SIS). It was not possible to abolish internal border controls within the Community framework, as the Member States could not agree on the need to abolish them in order to achieve the objective of free movement of persons (Article 14 of the EC Treaty). Over the years, however, all the Member States at that time except the United Kingdom and Ireland have joined the Schengen area.
The Schengen acquis became part of the European Union framework with the entry into force of the Amsterdam Treaty in 1999 i.
The Schengen area is based on mutual trust between the Member States in their capacity fully to implement the accompanying measures allowing the lifting of internal border controls. For example, checks at external borders are carried out by Member States not only to protect their own interests but also on behalf of all other Member States to which people could travel once they have crossed the external borders of the Schengen area.
In order to gain and maintain this mutual trust, the Schengen Member States set up a Standing Committee in 1998. Its mandate is set out in a decision of the Schengen Executive Committee (SCH/Com-ex (98) 26 def) and consists of two separate tasks:
1. verification whether all preconditions for application of the Schengen acquis (i.e. lifting of border controls) have been met by Member States wanting to join Schengen (‘putting into effect’);
2. verification that the Schengen acquis is being correctly applied by the Member States implementing the acquis (‘implementation’).
This mechanism thus draws a distinction between ‘putting into effect’ and ‘implementation’. Therefore, first of all, checks have to be made to determine whether the conditions for mutual trust are met before the acquis can be put into effect. Second, mutual trust then needs to be maintained by checking correct implementation of the acquis . In the intergovernmental phase of Schengen, specific provisions for verifying correct implementation were needed.
The Schengen acquis was integrated into the European Union framework without being renegotiated. The Standing Committee and its 1998 mandate were thus taken over unchanged, except that the Standing Committee became the Schengen Evaluation Working Group (SCH-EVAL) in the Council.
Given its intergovernmental basis, Schengen evaluation has been ─ and still is ─ entirely in the hands of the Member States, with the Commission participating as an observer. This is still a logical approach for the first part of the mandate, as there is nothing similar in the EU justice and home affairs acquis to this distinction between ‘putting into effect’ and ‘implementation’. Moreover, in the 2004 and 2007 enlargements, the decision-making procedure for lifting internal border controls and for full application of the Schengen acquis was laid down in the accession treaties, i.e. in primary law. The Acts of Accession provided for a Council Decision after consultation of the European Parliament. No right of initiative is envisaged for the Commission.
However, this approach is less logical for the second part of the mandate. Consequently, at the time of integration of the acquis already, the Commission issued a declaration stating that it ‘considers that the integration into the Union framework of the Decision of the Executive Committee setting up a Schengen Implementing Convention Standing Committee (SCH/Com-ex (98) 26 def of 16.9.1998) does not in any way affect the powers devolving on it from the Treaties and in particular its responsibility as guardian of the Treaties’.
As evaluation before putting into effect is fundamental for Member States in order to gain mutual trust, it seems reasonable for this to remain the responsibility of Member States. The Commission will continue to participate fully as an observer in these evaluations.
However, these different responsibilities do not lead to different standards of evaluation, but just reflect the different institutional realities. The Council may also decide to use the proposed structure in order to evaluate Member States before internal border controls are lifted.
- The need to improve evaluation of correct application of the acquis
Since 1999, there have been several discussions between Member States and the Commission on making the Schengen evaluation mechanism more efficient, in particular concerning the second part of the mandate, namely verification of correct application of the acquis after the lifting of internal border controls. The following main weaknesses have been identified:
1. The current evaluation mechanism is inadequate. The rules on consistency and frequency of evaluations are unclear. No unannounced on-site visits are conducted.
2. There is a need to develop a method for priority-setting based on risk analysis.
3. Consistently high-quality expertise during the evaluation exercise needs to be ensured. The experts participating in the evaluation should possess an adequate level of legal knowledge and practical experience. Sending an expert from each Member State on each on-site visit could be detrimental to the efficiency of the exercise. An appropriate number of experts to participate in visits needs to be determined.
4. The post-evaluation mechanism for assessing the follow-up to recommendations made after the on-site visits needs to be improved, as the measures taken to remedy deficiencies and the timeframe within which they are to be remedied vary from one Member State to another.
5. The institutional responsibility of the Commission as guardian of the Treaties is not reflected in the current evaluation system.
The following points are intended to address the weaknesses identified in the current mechanism:
This proposal introduces multiannual and annual programmes of both announced and unannounced on-site visits. Member States will continue to be evaluated on a regular basis in order to ensure overall correct application of the acquis . All parts of the Schengen acquis can be subject to evaluation.
This evaluation can be based on replies to questionnaires, on-site visits or a combination of the two.
In recent years, Member States have seen no need to carry out on-the-spot evaluations of judicial cooperation in criminal matters or on weapons and drugs. Data protection has also not always been subject to on-site evaluations.
Nevertheless, on-site visits are not limited to external borders and visas, but can cover all parts of the Schengen acquis , including the provisions for lifting controls at internal borders. However, as far as weapons are concerned, when the acquis was integrated into the EU framework the relevant provisions of the Schengen acquis were replaced by Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons i. Verification of correct transposition of this Directive was entrusted to the Commission in accordance with the Treaty. As Member States have never seen the need to carry out evaluations on the spot, there is no need to include verification of correct transposition of this Directive in this proposal.
In addition, wherever existing EU law already provides for a specific evaluation, there is no need for an additional evaluation within the context of this mechanism, but merely for application of the Schengen acquis .
In particular, in the case of data protection, which, beyond being a part of the Schengen acquis , applies horizontally to all policy areas, the evaluation should focus on the data protection aspects related to the SIS and be carried out in the context of SIS evaluations, in order to harness the existing synergies.
The specific need for on-site visits will be determined by the Commission, after seeking the advice of the Member States, taking into account changes in the legislation, procedures or organisation of the Member State concerned together with the risk analysis provided by Frontex regarding external borders and visas.
In addition, if necessary, thematic or regional evaluations can also be included in the annual programme.
On top of these regular evaluations, unannounced on-site visits can be made on the basis of the risk analysis provided by Frontex or any other source indicating a need to carry out an unannounced visit.
Both multiannual and annual programmes may be adapted if need be.
Member States’ experts are also involved in verifying correct application in other fields of EU law, e.g. on aviation and maritime security. As correct implementation of the accompanying measures allowing the lifting of internal border controls is fundamental for the internal security of Member States, experts from the Member States will continue to play a key role in the evaluation process. They will participate in both announced and unannounced visits and be involved in drafting the multiannual and annual evaluation programmes and also in the visits on the spot, the reporting and the follow-up via a committee procedure. In order to guarantee a high quality of expertise, Member States must ensure that the experts have appropriate qualifications, including solid theoretical knowledge and practical experience in the areas covered by the evaluation, plus sound knowledge of the principles, procedures and techniques for on-site visits.
Appropriate training should be provided by the relevant bodies (e.g. Frontex) and funds should be made available to Member States for specific training in evaluation of the Schengen acquis (e.g. by training on the priorities for Union action adopted in accordance with the rules established by the External Borders Fund) i.
Given the need to reduce the number of experts participating in order to ensure efficient evaluation on the spot, the number participating in announced visits should be limited to eight. As it might be more difficult to make experts available for unannounced visits at short notice, the number participating in such visits should be limited to six.
Since correct implementation of measures to ensure the free movement of persons in accordance with Article 26 of the Treaty on European Union does not affect the internal security of other Member States, evaluation of abolition of internal border controls can be fully entrusted to the Commission. It should be added that verification of abolition of internal border controls is not covered by the intergovernmental mandate.
In order to address effectively the weaknesses and shortcomings identified, each finding in the report should be classified into one of three categories: compliant, compliant but improvement necessary or non-compliant. Within two weeks, the Member State concerned should provide its comments on the report and, within one month after adoption of the report, an action plan to remedy the weaknesses. The Member State will also be under an obligation to report within six months on implementation of its action plan. Depending on the weaknesses identified, announced or unannounced on-site visits may be scheduled in order to verify correct implementation of the action plan. In the event of serious deficiencies, the Commission has to inform the Council without delay.
This in no way affects the Commission’s power to initiate an infringement procedure at any stage of the evaluation. A Member State might be in breach of the acquis , e.g. if it refuses entry to persons in possession of a valid Schengen visa issued by another Member State. In such cases, the internal security of the Member State is not at stake, but it is nevertheless infringing Union law.
Given the Commission’s responsibilities under the Treaty, it is essential for the Commission to take the lead in the Schengen evaluation process to assess correct application of the acquis after internal border controls are lifted. Nevertheless, the expertise of the Member States is also important in order to be able to verify implementation on the spot and maintain mutual trust between the Member States.
The costs of participation by the Member States’ experts will be borne by the EU budget.
- Existing provisions in the area covered by the proposal
Decision of the Executive Committee setting up a Schengen Implementing Convention Standing Committee (SCH/Com-ex (98) 26 def of 16.9.1998).
- Consistency with the other policies and objectives of the Union
The proposal is consistent with existing policies and objectives of the European Union, in particular the objective of creating and maintaining an area of freedom, security and justice.
Since 1999, several discussions have been held within the Council Working Group on ‘Schengen Evaluation’ in order to render the Schengen evaluation mechanism more efficient. The group agreed, for instance, to limit the number of experts participating in evaluations. However, this agreement is not legally binding and every Member State still has the right to send an expert on evaluation visits, which sometimes makes it difficult to ensure that these visits run smoothly. The frequency and method of the evaluations have also been discussed.
In April 2008, the Commission organised an expert meeting. Member States agreed with the assessment of the weaknesses identified by the Commission. While the Member States acknowledged the need to change the current mechanism, some expressed doubts about the institutional role of the Commission in a new Schengen evaluation mechanism.
The March 2009 proposals were discussed in the relevant Council Working Group during three meetings on the general approach and three more on substance i. The European Parliament rejected the proposals on 20 October 2009 i, arguing that the Commission should have involved it in adoption of the proposals by co-decision. In the meantime, the Schengen Evaluation Group has also been working further towards improving the current working methods. This new proposal takes account of the discussions held in the Council and the European Parliament on the March 2009 proposals.
Contents
- Summary of the proposed action
The instrument provides for a new Schengen evaluation mechanism in order to ensure transparent, effective and consistent implementation of the Schengen acquis . It also reflects the changes in the legal situation after integration of the Schengen acquis into the European Union framework.
- Legal basis
- Article 77(2)(e) of the Treaty on the Functioning of the European Union (TFEU).Article 77 provides for abolition of internal border controls as the final objective of an area of free movement of persons within the European Union, as laid down in Article 26 of the TFEU. The abolition of internal border controls must be accompanied by measures in the field of external borders, visa policy, the Schengen Information System, data protection, police cooperation, judicial cooperation in criminal matters and drugs policies. Correct application of these measures makes it possible to maintain an area without internal border controls. Evaluation of correct application of these measures therefore serves the ultimate policy objective of maintaining the area free of internal border controls.
- Subsidiarity and proportionality
In accordance with the principle of subsidiarity, the objective of the proposed Regulation, namely to render the existing Schengen evaluation mechanism more efficient, which is currently the responsibility of the Council, can only be achieved at EU level.
This proposal remains within the current framework, while limiting the number of experts participating and increasing efficiency. It does not go beyond what is necessary to achieve its objective.
- Choice of legal instrument
By its very nature, an evaluation mechanism to ensure correct application of EU law cannot require any action by Member States to transpose it into national law. For this reason, the instrument chosen is a Regulation.
A financial statement is annexed to this proposal. Adequate human and financial resources will have to be allocated to the Commission, which will be responsible for the new Schengen evaluation mechanism. Costs incurred by the Member States’ experts will also be reimbursed.
Consequences of the various protocols annexed to the Treaties and of the Association Agreements concluded with non-EU countries
The legal basis for this proposal is in Title V, Part Three of the Treaty on the Functioning of the European Union. The ‘variable geometry’ system provided for in the protocols on the position of the United Kingdom, Ireland and Denmark and in the Schengen protocol therefore applies.
This proposal builds upon the Schengen acquis . The following consequences for the various protocols therefore have to be taken into account:
United Kingdom and Ireland : This proposal provides for an evaluation mechanism in order to maintain an area without internal border controls, in which the United Kingdom and Ireland do not participate, in accordance with 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 and 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 . Therefore, the United Kingdom and Ireland will not participate in adoption of this Regulation and will not be bound by it or subject to application thereof.
Denmark : Under the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark does not take part in the adoption by the Council of measures under Title V of Part Three of the Treaty on the Functioning of the European Union, with the exception of ‘measures determining the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States, or measures relating to a uniform format for visas’.
This proposal builds on the Schengen acquis. Under Article 4 of the Protocol, Denmark must ‘decide within a period of six months after the Council has decided on a proposal or initiative to build upon the Schengen acquis [under the provisions of Title V of Part Three of the Treaty on the Functioning of the European Union] … whether it will implement this decision in its national law’.
Consequences for Bulgaria, Cyprus and Romania of the two-stage procedure for implementing instruments building on the Schengen acquis :
Article 3 i of the 2003 Act of Accession i and Article 4 i of the 2005 Act of Accession i state that the provisions of the Schengen acquis and the acts building upon it or otherwise related to it, listed in Annex I and Annex II to these Acts respectively, will be binding on and applicable in the Member States concerned from the date of accession. Provisions and acts not referred to in the Annexes, while binding on these Member States from the date of accession, will apply in them only pursuant to a Council Decision to that effect taken in accordance with these Articles.
This is the two-stage implementation procedure whereby certain provisions of the Schengen acquis are binding and applicable from the date of accession to the Union, whereas others, specifically those linked intrinsically to removal of controls at internal borders, are binding from the date of accession but applicable in the new Member States only after a Council Decision to that effect.
This instrument specifies how correct implementation of the acquis is to be ensured after the internal border controls are lifted.
Norway and Iceland: As regards Norway and Iceland, this proposal develops provisions of the Schengen acquis, as provided for by the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis i.
Switzerland: As regards Switzerland, this proposal develops 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 i.
Liechtenstein: As regards Liechtenstein, this proposal develops 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 i.