Legal provisions of COM(2011)559 - Establishment of an evaluation and monitoring mechanism to verify the application of the Schengen acquis

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dossier COM(2011)559 - Establishment of an evaluation and monitoring mechanism to verify the application of the Schengen acquis.
document COM(2011)559 EN
date September 16, 2011

Contents

Article 1 - Purpose and scope

This Regulation establishes an evaluation and monitoring mechanism to verify application of the Schengen acquis in the Member States to which the Schengen acquis applies in full.

Experts from the Member States which, in accordance with the relevant Act of Accession, do not yet fully apply the acquis shall nevertheless participate in evaluation and monitoring of all parts of the acquis .

Article 2 - Definitions For the purpose of this Regulation,

‘Schengen acquis ’ means the provisions of the Schengen acquis, as integrated into the European Union framework by the Protocol annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, together with the acts building upon it or otherwise related to it.

Article 3 - Responsibilities

1. The Commission shall be responsible for implementation of this evaluation and monitoring mechanism in close cooperation with the Member States and with the support of European bodies, as specified in this Regulation.

2. Member States shall cooperate with the Commission to allow it to carry out the tasks conferred on it by this Regulation. Member States shall also cooperate with the Commission during the preparatory, on-site visit, reporting and follow-up phases of evaluations.

Article 4 - Evaluations

Evaluations may consist of questionnaires and on-site visits. Both may be supplemented by presentations by the evaluated Member State on the area covered by the evaluation. On-site visits and questionnaires may be used either independently or in combination in relation to specific Member States and/or specific areas. On-site visits may be announced or unannounced.

Article 5 - Multiannual programme

1. A multiannual evaluation programme covering a period of five years shall be established by the Commission , in accordance with the procedure referred to in Article 15 (2), not later than six months before the start of the next five-year period. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17 (2).

2. The multiannual programme shall contain the list of Member States to be evaluated each year. Each Member State shall be evaluated at least once during each five-year period. The order in which the Member States are to be evaluated shall be based on a risk analysis taking into account the migratory pressure, internal security, the time which has elapsed since the previous evaluation and the balance between the different parts of the Schengen acquis to be evaluated.

3. The multiannual programme may be adapted, if necessary, in accordance with the procedure referred to in paragraph 1.

Article 6 - Risk analysis

1. By not later than 30 September each year, Frontex shall submit to the Commission a risk analysis taking into account migratory pressure and making recommendations for priorities for evaluations in the next year. The recommendations shall refer to specific sections of the external borders and to specific border crossing-points to be evaluated in the next year under the multiannual programme. The Commission shall make this risk analysis available to the Member States.

2. By the same deadline as stated in paragraph 1, Frontex shall submit to the Commission a separate risk analysis making recommendations for priorities for evaluations to be implemented in the form of unannounced on-site visits in the next year. These recommendations may concern any region or specific area and shall contain a list of at least ten specific sections of the external borders and ten specific border crossing-points. The Commission may at any time request Frontex to submit to it a risk analysis making recommendations for evaluations to be implemented in the form of unannounced on-site visits.

Article 7 - Questionnaire

1. The Commission shall send a standard questionnaire to the Member States to be evaluated in the next year by not later than 15 August of the previous year. The standard questionnaires shall cover the relevant legislation and the organisational and technical means available for implementation of the Schengen acquis and statistical data on each field of the evaluation.

2. Member States shall provide their replies to the questionnaire to the Commission within six weeks of communication of the questionnaire. The Commission shall make the replies available to the other Member States.

Article 8 - Annual programme

1. Taking into account the risk analysis provided by Frontex in accordance with Article 6, the replies to the questionnaire referred to in Article 7 and, where appropriate, Europol or other relevant sources, an annual evaluation programme shall be established by the Commission by not later than 30 November of the previous year. The programme may provide for evaluation of:

- application of the acquis or parts of the acquis by one Member State, as specified in the multiannual programme;

and, in addition, where relevant:

- application of specific parts of the acquis across several Member States (thematic evaluations);

- application of the acquis by a group of Member States (regional evaluations).

2. The first section of the programme , adopted in accordance with the procedure referred to in Article 15 (2), shall list the Member States to be evaluated in the next year in accordance with the multiannual programme. This section shall list the areas to be evaluated and the on-site visits. This section shall be adopted by the Commission. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17 (2).

3. The Commission shall draw up the second section of the programme, which shall list the unannounced on-site visits to be carried out in the next year. This section shall be considered confidential and shall not be communicated to the Member States.

4. The annual programme may be adapted, if necessary, in accordance with paragraphs 2 and 3.

Article 9 - List of experts

1. The Commission shall compile a list of experts designated by Member States for participation in on-site visits . The list shall be communicated to the Member States.

2. Member States shall indicate the areas of expertise of each expert , with reference to the areas listed in the Annex to this Regulation . Member States shall notify the Commission of any changes as soon as possible.

3. Member States shall indicate which experts can be made available for unannounced on-site visits in accordance with the requirements set out in Article 10(5).

4. The experts shall have appropriate qualifications, including a solid theoretical knowledge and practical experience in the areas covered by the evaluation mechanism, along with sound knowledge of evaluation principles, procedures and techniques, and shall be able to communicate effectively in a common language.

5. Member States shall ensure that their designated experts meet the requirements specified in the previous paragraph, including by indicating the training the experts have received. In addition, Member States shall ensure that the experts receive continuous training in order to continue to comply with these requirements.

Article 10 - Teams responsible for on-site visits

1. On-site visits shall be carried out by teams appointed by the Commission. The teams shall consist of experts drawn from the list of experts referred to in Article 9 and Commission representatives officials . The Commission shall make an effort to ensure the geographical balance and competence of the experts in each team. Member States’ experts may not participate in an on-site visit to the Member State where they are employed.

2. The Commission may shall invite Frontex, and where appropriate , Europol, Eurojust or other relevant European bodies to designate a representative to take part as an observer in a visit concerning an area covered by their mandate.

3. The number of experts (including observers) participating in evaluation visits may not exceed eight persons for announced on-site visits and six persons for unannounced on-site visits.

4. In the case of announced visits, the Member States whose experts have been appointed in accordance with paragraph 1 shall be notified by the Commission not later than four weeks before the on-site visit is scheduled. Member States shall confirm the availability of the experts within one week.

5. In the case of unannounced visits, the Member States whose experts have been appointed in accordance with paragraph 1 shall be notified by the Commission not later than one week before the on-site visit is scheduled. Member States shall confirm the availability of the experts within 48 hours.

6. The leading experts for on-site visits shall be a Commission official representative and an expert from a Member State, who shall be appointed prior to the on-site visit jointly by the members of the team of experts.

Article 11 - Conduct of on-site visits

1. The on-site visit teams shall undertake all necessary preparatory activities in order to ensure the efficiency, accuracy and consistency of on-site visits.

2. The Member State concerned shall be notified:

- at least two months before an announced on-site visit is due to take place;

- at least 48 hours before an unannounced on-site visit takes place.

3. The members of the on-site visit team shall each carry identification authorising them to conduct on-site visits on behalf of the European Union.

4. The Member State concerned shall ensure that the team of experts can directly address relevant persons. It shall ensure that the team has access to all areas, premises and documents required for the evaluation. It shall ensure that the team is able to exercise its mandate to verify the activities in the areas to be evaluated.

5. The Member State concerned shall, by any means within its legal powers, assist the team in performing its task.

6. In the case of announced on-site visits, the Commission shall provide the relevant Member States with the names of the experts in the team in advance. The Member State concerned shall designate a contact point for making the practical arrangements for the on-site visit.

7. The Member States shall be responsible for making the necessary travel and accommodation arrangements for their experts. The travel and accommodation costs for experts participating in the visits shall be reimbursed by the Commission.

Article 12 - Verification of the free movement of persons at internal borders

Notwithstanding Article 10, teams for unannounced on-site visits to verify the absence of controls at internal borders shall consist of Commission official representatives only.

Article 13 - Evaluation reports

1. A report shall be drawn up following each evaluation. The evaluation report shall be based on the findings of the on-site visit and the questionnaire, as appropriate.

1. If the evaluation is based only on the questionnaire or an unannounced visit, the report shall be drawn up by the Commission.

2. In the case of announced on-site visits, the report shall be drawn up by the team during the visit. The Commission official representative shall take overall responsibility for drafting the report and ensuring its integrity and quality. In case of disagreement, the team shall endeavour to reach a compromise. Dissenting opinions may be included in the report.

2. The report shall analyse the qualitative, quantitative, operational, administrative and organisational aspects, as appropriate, and shall list any shortcomings or weaknesses established during the evaluation. The report shall contain recommendations for remedial action and deadlines for implementing them.

3. One of the following classifications shall be given to each finding in the report:

3. compliant;

4. compliant but improvement necessary;

5. non-compliant.

4. The Commission shall communicate the draft report to the Member State concerned within six weeks of the on-site visit or of receipt of the replies to the questionnaire, as appropriate. The Member State concerned shall provide its comments on the report within two weeks.

5. The Commission expert shall present the draft report and the reply from the Member State to the committee established in accordance with Article 15 17. Member States shall be invited to comment on the replies to the questionnaire, the draft report and the comments by the Member State concerned.

On this basis, the Commission shall decide on t he evaluation report and recommendations addressing the classification of the findings referred to in paragraph 3 shall be adopted by the Commission in accordance with the procedure referred to in Article 15 (2) . Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17 (2).

Within one month after adoption of the report, the Member State concerned shall provide the Commission with an action plan to remedy any weaknesses identified.

After consulting the team of experts, the Commission shall present its assessment of the adequacy of the action plan to the committee established in accordance with Article 15 17, within one month of receiving the action plan from the Member State. Member States shall be invited to comment on the action plan.

6. The Member State concerned shall report to the Commission on implementation of the action plan within six months of receipt of the evaluation report and shall thereafter continue to report every three months until the action plan is fully implemented. Depending on the severity of the weaknesses identified and the measures taken to remedy them, the Commission may schedule announced visits in accordance with the procedure referred to in Article 15 (2) to verify implementation of the action plan shall decide on announced visits to verify implementation of the action plan. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17(2). The Commission may also schedule unannounced on-site visits.

The Commission shall inform the committee established in accordance with Article 15 17 , on a regular basis, about the implementation of the action plan.

7. If an on-site visit reveals a serious deficiency deemed to have a significant impact on the overall level of security of one or more Member States, the Commission, on its own initiative or at the request of a Member State, shall inform the Council and the European Parliament as soon as possible.

Article 14 - Measures at the external borders and Frontex support

1. Where serious deficiencies in the carrying out of external border control or return procedures are identified in the evaluation report, and with a view to ensuring compliance with the recommendations referred to in Article 13 (5), the Commission may decide to request the evaluated Member State to take certain specific measures, which may include one or more of the following:

- initiation of the deployment of European Border Guard teams in accordance with the provisions of the Frontex Regulation;

- submi ssion of its strategic decisions on risk assessment and plans for the deployment of equipment for approval to Frontex;

- clos ing of a specific border crossing point for a limited period of time until the weaknesses are remedied.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 17(2).

2. The Commission shall inform the committee established in accordance with Article 17 on a regular basis on the progress in the implementation of the measures referred to in paragraph 1 and on its impact on the deficiencies identified.

Article 15 - Serious deficiencies related to external border control or return procedures

1. Notwithstanding the six month period for reporting on the implementation of an action plan referred to in Article 13 (6), if the evaluation report referred to in Article 13 (5) concludes that the evaluated Member State is seriously neglecting its obligation to carry out external border control or return procedures, the evaluated Member State shall report on the implementation of the action plan within three months of receipt of the evaluation report.

2. If, following the three months period referred to in paragraph 1, the Commission finds that the situation persists, Articles 23, 23a and 26 of the Schengen Borders Code apply.

Article 14 - 16 Sensitive information

The teams shall regard as confidential any information they acquire in the course of performing their duties. The reports drawn up following on-site visits shall be classified as restricted. The Commission, after consulting the Member State concerned, shall decide which part of the report can be made public.

Article 15 - Committee

1. The Commission shall be assisted by a committee made up of representative of the Member States and chaired by the representative of the Commission.

2. Where reference is made to this paragraph, Articles 4, 7 and 8 of Decision 1999/468/EC shall apply.

Article 17 - Committee

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.

Article 16 - 18 Transitional provisions

1. The first multiannual programme in accordance with Article 5 and the first annual programme in accordance with Article 8 shall be established six months after this Regulation enters into force. The starting dates for both programmes shall be one year after this Regulation enters into force.

2. The first risk analysis to be provided by Frontex in accordance with Article 6 shall be provided to the Commission not later than three months after this Regulation enters into force.

3. Member States shall designate their experts in accordance with Article 9 not later than three months after this Regulation enters into force.

Article 17 - 19 Information of the European Parliament and the Council

The Commission shall inform the European Parliament and the Council of the recommendations adopted by the Commission in accordance with Article 13(5).

Article 18 - 20 Reporting to the European Parliament and the Council

The Commission shall present a yearly report to the European Parliament and the Council on the evaluations carried out pursuant to this Regulation. The report shall be made public and shall include information on:

- the evaluations carried out during the previous year, and

- the conclusions drawn from each evaluation and the state of play with regard to remedial action.

Article 19 - 21 Repeal

Part II of the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen (SCH/Com-ex (98) 26 def), entitled ‘Implementation committee for the States already applying the Convention’, shall be repealed with effect from one year after the entry into force of this Regulation.

Article 2022

The Council may decide to carry out the Schengen evaluations referred to in Act s of Accession concluded after the entry into force of this Regulation in accordance with this Regulation.

Article 21 - 23 Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaty on the Functioning of the European Union Treaties .