Various Documents considered by the Committee - European Scrutiny Committee Contents

5 Evaluating Member States' implementation of the Schengen acquis



COM(10) 624

Draft Regulation on the establishment of an evaluation mechanism to verify application of the Schengen acquis

Legal baseArticle 77(2)(e) TFEU; co-decision; QMV
Document originated16 November 2010
Deposited in Parliament23 November 2010
DepartmentHome Office
Basis of considerationEM of 7 February 2011
Previous Committee ReportNone, but HC 19-xvi (2008-09), chapter 3 (6 May 2009) and HC 19-xii (2008-09), chapter 6 (25 March 2009) are relevant
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared, further information requested


5.1 The Schengen Agreement 1985 set as an objective "the gradual abolition of controls at the common frontiers" of signatory countries but it provided no more than a skeletal framework for realising this goal. It was supplemented, in 1990, by the Schengen Implementing Convention which established an Executive Committee with decision making powers to ensure the removal of internal border controls and the strengthening of those at the external Schengen border. The lifting of internal border controls was accompanied by wide-ranging 'flanking' or 'compensatory' measures intended to safeguard public safety and security within the Schengen free movement area, covering such matters as asylum, visa and immigration policy, drugs, firearms, police and judicial cooperation, and the creation of a Schengen-wide database (the Schengen Information System—the SIS). The Schengen acquis is the collective term encompassing the body of law and practice which has developed in order to implement the Schengen Agreement and Convention.

5.2 In 1998, the Schengen Executive Committee established a Standing Committee on the evaluation and implementation of Schengen which had two tasks:

  • to establish the criteria to be met by candidate States wishing to join the Schengen free movement area and to verify whether these have been satisfied; and
  • to verify whether the Schengen acquis is being properly applied by Member States already participating in the Schengen free movement area.

The Standing Committee comprised one representative from each signatory State to the Convention, reflecting the intergovernmental nature of Schengen, with the Commission participating as an observer only.[20]

5.3 With the entry into force of the Amsterdam Treaty on 1 May 1999, the Schengen acquis was brought within the EU's legal and institutional framework. Each element of the acquis had to be given a legal base in the EU Treaties so, for example, asylum and immigration matters were allocated a legal base in the then EC Treaty, police and criminal judicial cooperation measures were given a legal base in the intergovernmental Third Pillar in the Treaty on European Union (TEU). The mandate of the Standing Committee remained unchanged but it became the Schengen Evaluation Working Group—a Council Working Group.

5.4 The UK and Ireland have chosen to remain outside the Schengen free movement area but both have the right, under the Protocol which integrated Schengen within the EU, to request to participate in some or all of the Schengen acquis. In 2000, the Council adopted a Decision specifying that the UK would participate in most of the acquis relating to police and judicial cooperation in criminal matters, narcotic drugs, and the Schengen Information System (except those parts concerning data on third country nationals refused entry to the Schengen area).[21] A further Decision, adopted in 2004, provided for most of this acquis to take effect in the UK on 1 January 2005, the main exception being UK participation in the SIS which would be delayed pending the development of a second-generation system (SIS II).

5.5 The Schengen Protocol applies to all measures which build on the existing Schengen acquis. There is a presumption that if a Schengen-building measure develops an aspect of the Schengen acquis in which the UK already participates, then the UK will be bound by the subsequent measure unless it notifies the Council within three months that it does not wish to take part. This is referred to as the Schengen Opt-out. If, however, a Schengen-building measure develops an aspect of the acquis in which the UK does not participate, then the UK is precluded from taking part in the adoption or application of that measure.[22]

5.6 In 2009, the Commission put forward two proposals, one a draft Regulation, the other a draft Decision, to establish a new evaluation mechanism for Schengen covering, respectively, those parts of the acquis with a legal base in the EC Treaty (asylum and immigration) and those with a legal base in the TEU (police and criminal judicial cooperation).[23] The UK intended to participate in the draft Decision, but not the draft Regulation.

5.7 With the entry into force of the Lisbon Treaty on 1 December 2009, all EU action concerning the Area of Freedom, Security and Justice was brought together in Title V of Part 3 of the Treaty on the Functioning of the European Union (TFEU). As a result, the draft Decision lapsed and the Commission indicated that it would reflect on the appropriate legal base for the draft Regulation.

The draft Regulation

5.8 The draft Regulation is a new proposal, replacing the draft Regulation proposed in 2009. Its purpose is to establish a transparent and effective legal framework to evaluate the correct application of the Schengen acquis by States already participating in the Schengen free movement area, replacing the second part of the mechanism established by the Executive Committee in 1998. According to the Commission, the draft Regulation 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."[24] The draft Regulation would not, however, affect the existing evaluation and verification mechanism created in 1998 for candidate countries wishing to join the Schengen free movement area, which the Commission believes should remain essentially intergovernmental.

5.9 The Commission's explanatory memorandum accompanying the draft Regulation says that the existing evaluation mechanism for Schengen States is inadequate and does not reflect "the institutional responsibility of the Commission as the guardian of the Treaties."[25] It identifies the following weaknesses:

  • lack of clarity as to the frequency of evaluations;
  • the absence of any provision for unannounced on-site visits;
  • lack of a methodology to set priorities based on risk analysis;
  • an expectation that all Member States may send an expert for on-site visits, potentially undermining the efficiency of the exercise;
  • inadequate expert legal knowledge and practical experience of some team members carrying out an evaluation; and
  • inadequate monitoring of Member States' efforts to respond to any deficiencies identified in an on-site visit.

5.10 The legal base proposed for the draft Regulation is Article 77(2)(e) TFEU which provides for the adoption, by the ordinary legislative procedure (co-decision and QMV) of measures ensuring "the absence of any controls on persons, whatever their nationality, when crossing internal borders." The Commission says that "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 polices. Correct application of these measures makes it possible to maintain an area without internal borders. Evaluation of correct application of these measures therefore serves the ultimate policy objective of maintaining the area free of internal border controls."[26]

The content of the draft Regulation

5.11 The main elements of the draft Regulation are as follows:

  • the Commission would assume responsibility for implementing the evaluation mechanism "in close cooperation with the Member States" and supported, where appropriate, by Frontex, Europol, Eurojust or other relevant European bodies;
  • Member States would have a duty to cooperate with the Commission;
  • evaluations would be based on a standard questionnaire and/or on-site visits, which may be unannounced;
  • the Commission, in consultation with a management committee of Member State representatives,[27] would draw up a five-year multiannual programme listing the Member States to be evaluated each year (MAP), which would be subject to approval by the management committee;
  • the Commission would use a risk analysis to determine which Member States should be evaluated first, taking into account migratory pressure, internal security, the date of the last evaluation and the balance between the different parts of the acquis which are to be evaluated;
  • each Member State would be evaluated at least once in every five-year period;
  • Frontex would produce two annual risk analyses, based on migratory pressure; the first, which would be made available to Member States, would identify specific border crossing points or sections of the external border which should be subject to evaluation in the following year; the second, which would not be disclosed, would make recommendations for unannounced on-site visits;
  • the Commission would produce an annual evaluation programme containing two parts; the first, which would require consultation with and the approval of the management committee, would list the States to be evaluated in accordance with the MAP, and might include thematic evaluations of the application of specific parts of the acquis across several Member States or regional evaluations of the application of the acquis by a group of Member States; the second part, drawn up exclusively by the Commission, would be confidential and list unannounced on-site visits;
  • the Commission would compile a list of appropriately qualified experts designated by Member States to participate in on-site visits;
  • Member States would have a duty to ensure that their designated experts have the requisite legal, technical, practical and linguistic skills to take part in on-site visits;
  • the Commission would appoint teams of not more than eight experts to carry out on-site visits (six if visits are unannounced) including, where relevant, a representative from Frontex, Europol or Eurojust in an observer capacity;
  • for each site visit, the team would be jointly led by a Commission official and an expert from a Member State selected by members of the team;
  • the Member State where an on-site visit is to take place would be notified at least two months in advance, if the visit is announced, and 48 hours in advance if it is unannounced;
  • only Commission officials would participate in unannounced on-site visits to verify the absence of internal border controls (according to the Commission, this forms part of its responsibilities for supervising the internal market under Article 26 TFEU);
  • where evaluation of implementation of the Schengen acquis is based solely on a questionnaire or an unannounced visit, the Commission would be responsible for producing the evaluation report; where it is based on an announced visit, the expert team would produce the report, but the Commission would bear overall responsibility for its integrity and quality;
  • the evaluation report would indicate whether a Member State is "compliant", "compliant but improvement necessary" or "non-compliant" and would include recommendations for remedial action where deficiencies have been identified as well as deadlines for compliance;
  • the recommendations in the evaluation report must be approved by the management Committee and the European Parliament should be informed;
  • where deficiencies have been identified, the Member State concerned should draw up an action plan and provide regular reports until it has been fully implemented;
  • in the event of serious deficiencies "deemed to have a significant impact on the overall level of security of one or more Member States", the Commission would be required to inform the Council and European Parliament as soon as possible;
  • reports based on information obtained during an on-site visit would be classified as restricted but the Commission, in consultation with the Member State concerned, would decide if any part of the report might be made public;
  • the Commission would produce an annual report for the European Parliament and Council, which should be made public, describing the evaluations carried out in the previous year, the conclusions drawn from each evaluation, and the remedial action taken; and
  • there is provision for the Council to decide to apply the evaluation mechanism set out in the draft Regulation to future acceding States which, at the time of their accession, are in a position to apply some, but not all, of the Schengen acquis.

The scope of application of the draft Regulation

5.12 Article 1 of the draft Regulation provides that the evaluation mechanism only applies to "verify application of the Schengen acquis in the Member States to which the Schengen acquis applies in full." As the recitals to the draft Regulation make clear, this would have the effect of excluding the UK and Ireland from participating in the adoption of the draft Regulation and neither Member State would be subject to the application of the evaluation mechanism or be involved in the evaluation of other Member States. By contrast, experts from Member States which acceded to the EU in 2004 or 2007 but which do not yet apply the acquis in full (Cyprus, Bulgaria and Romania) would still be able to participate in the evaluation mechanism. Iceland, Norway, Switzerland and Liechthenstein (the Schengen Associated States) would also participate in the evaluation mechanism by virtue of bilateral agreements with the EU associating those countries with the implementation, application and development of the Schengen acquis.

The Government's view

5.13 The Parliamentary Under-Secretary of State at the Home Office (James Brokenshire) says that the Government accepts the need for changes to the existing Schengen evaluation mechanism to include, for example, provision for unannounced site visits. He is content with the substance of the draft Regulation which should make the process for evaluating the application of the Schengen acquis more efficient. He believes that giving the Commission a stronger monitoring role will ensure "proper streamlining and oversight of the entire Schengen evaluation process", but adds that the Commission should consult the management Committee at every stage and make best use of its expertise.

5.14 The Minister expresses the Government's disappointment that the draft Regulation "purports to exclude the UK", notwithstanding that the UK participates in those parts of the acquis which provide for compensatory policing, customs and law enforcement measures. He continues:

"The choice of Article 77(2)(e) of the TFEU as the sole legal base for all … evaluations, which includes compensatory policing, customs and law enforcement activities, may have a serious impact on the UK's future participation in the second generation Schengen Information System (SIS II), other parts of the Schengen acquis, and in peer evaluation of other Member States with whom we work closely in policing matters.

"As it stands, the UK will still be able to participate in its own evaluations to join SIS II and be an active participant in the evaluation of candidate countries and any new associated States. However, once we join SIS II, there will be no mechanism in place for the Schengen countries to evaluate the UK on its policing cooperation, SIS/SIRENE operations, and data protection provisions, and vice versa. This contradictory situation does not support mutual trust between countries, which is a key aim of the measure, and may affect our future participation in SIS II and related policing matters."

5.15 The Minister says that he has highlighted this anomaly and believes that the Commission is "open to creative solutions." He adds that the UK wishes to secure an active role in the evaluation process and is exploring options:

"While we prefer avoiding one model for some types of evaluations and countries and a second model for the rest, the solution to UK participation may have to involve this. We hope a way can be found to allow our active participation, mitigate complication and address the weaknesses identified by the Commission."

5.16 The Minister notes that discussions are on-going in the Schengen Evaluation Working Group but have not yet started in the European Parliament.


5.17 We accept that Article 77(2)(e) TFEU is the appropriate legal base for those elements of the Schengen acquis which directly concern the removal of internal border controls on individuals moving within the Schengen free movement area. The Commission appears to believe that this is also the correct legal base for all 'compensatory' measures, including those on drugs, policing and judicial cooperation in criminal matters, because it says that these measures are only justified by the need to maintain an area free of internal border controls.

5.18 We think this argument is flawed for the following reasons. First, the Schengen Protocol which provided for the Schengen acquis to be brought within the EU framework specified that each element had to be allocated to a specific legal base in the EU Treaties.[28] One of the principal objectives of that allocation was to identify the legal base for any future proposals or initiatives to amend or build on the Schengen acquis.[29] While the Council determined that some of the acquis should be given a legal base in what was then Title IV of the EC Treaty on policies related to the free movement of people, a substantial part of the acquis was given a legal base in the Treaty on European Union because it concerned police and criminal judicial cooperation. The Commission's choice of a single 'catch-all' legal base for the draft Regulation would appear to be at odds with the careful approach taken by the Council when incorporating the acquis in 1999.

5.19 Second, the Schengen Protocol itself makes clear that the Schengen acquis is separable by providing for Ireland and the United Kingdom to "request to take part in some or all of the provisions of this acquis."[30] If partial participation in the acquis is contemplated by the EU Treaties, it is difficult to see why a mechanism to evaluate the application of that acquis cannot also accommodate those Member States that take part in some, but not all, of the acquis.

5.20 We share the Government's concern that excluding the UK from participation in the proposed evaluation mechanism would potentially undermine the efficient operation of the Schengen system and would also appear to run counter to the Commission's professed desire to ensure "transparent, effective and consistent implementation of the Schengen acquis."[31] We believe that it should be possible to find a pragmatic solution. As discussions on the draft Regulation have just started, we ask the Government to send us progress reports, including on any options put forward by the UK. Meanwhile, the draft Regulation remains under scrutiny.

20   See Decision of the Executive Committee of 16 September 1998 (SCH/Com-ex (98)26 def.) Back

21   See Council Decision 2000/365/EC of 29 May 2000, OJ No. L131, 1.06.2000, pp 43-47. Back

22   See Case C-77/05 and Case C-137/05 concerning the exclusion of the UK from the adoption of Council Regulations establishing Frontex and setting standards for security features and biometrics in passports and travel documents.  Back

23   See the Reports indicated in the headnote. Back

24   See page 2 of the Commission's explanatory memorandum accompanying the draft Regulation.  Back

25   See page 5 of the Commission's explanatory memorandum accompanying the draft Regulation.  Back

26   See page 8 of the Commission's explanatory memorandum accompanying the draft Regulation.  Back

27   Arrangements for the exercise by the Commission of implementing powers will change with effect from 1 March 2011, so provisions in the draft Regulation referring to the use of the management procedure - part of the existing comitology procedures - will need to be amended accordingly.  Back

28   Article 2(1) sub-paragraph 2 of the Protocol Integrating the Schengen Acquis within the Framework of the European Union. Back

29   See recital 3 of Council Decision 1999/436/EC of 20 May 1999 determining the legal base for each of the provisions or decisions which constitute the Schengen acquis, OJ No. L 176, 10.07.1999. Back

30   See Article 4 of the Protocol Integrating the Schengen Acquis within the Framework of the European Union.  Back

31   See page 2 of the Commission's explanatory memorandum accompanying the draft Regulation.  Back

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