Explanatory Memorandum to COM(2011)559 - Establishment of an evaluation and monitoring mechanism to verify the application of the Schengen acquis - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)559 - Establishment of an evaluation and monitoring mechanism to verify the application of the Schengen acquis. |
|---|---|
| source | COM(2011)559  |
| date | 16-09-2011 |
Schengen governance – strengthening the area without internal border control
As regards the context and rationale for the amendments contained in the present proposal, and for a detailed explanation of how they are intended to function in practice, reference is made to the Commission Communication to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions entitled ' Schengen governance – strengthening the area without internal border control ', which is adopted together with this proposal.
Legislative changes
On 16 November 2010, the Commission adopted a proposal for a Regulation of the European Parliament and of the Council on the establishment of an evaluation mechanism to verify the application of the Schengen acquis i. This proposal strengthens the Schengen evaluation mechanism, in particular by streamlining the follow up by requesting the evaluated Member State to submit an action plan to remedy the weaknesses identified and to regularly report on the implementation of such an action plan until all weaknesses have been remedied. In case of serious deficiencies having an impact on the overall level of security of one or more Member States, it is foreseen to inform the Council and the European Parliament, thus exercising peer pressure at the highest political level on the failing Member State to comply with the rules.
A Member State shall be evaluated at least once within a five year period; however, the planning might be adapted in accordance with the needs and the situations identified on the ground. Also, unannounced visits may be carried out in order to monitor the correct implementation of all accompanying measures.
In order to provide for the necessary legal framework to respond to the invitation of the European Council of 23-24 June 2011 to further strengthen the Schengen evaluation system and to introduce a safeguard clause to respond to truly critical situations where a Member State is no longer able to comply with its obligations under the Schengen rules as explained in detail in the Communication referred to in point 1.1, the Commission hereby amends its proposal by providing for additional support at the Union and national level, strengthening the support given by Frontex and by introducing the possibility of a Union-based mechanism for the reintroduction of border control at internal borders where a Member State is persistently neglecting its obligation to control its section of the external border, and insofar as the circumstances would be such as to constitute a serious threat to public policy or to internal security at the Union or national level. The introduction of such a mechanism also implies the modification of the Schengen Borders Code which is being presented at the same time as this proposal.
The need to modify the current Schengen evaluation mechanism as such has been explained in detail in the above-mentioned proposal of 16 November 2010. Although the latter is proposal is hereby replaced by the present one, the reasons for presenting the November 2010 proposal remain unchanged; the Commission therefore refrains from reproducing the detailed justification in the current amended proposal. As the initial proposal has not yet been adopted by the legislators (the European Parliament has not yet adopted a first reading position in accordance with Article 294 i TFEU on the proposal), the amendment is included in the overall text of that initial proposal i, which remains unchanged except for the changes concerning the support to be given to a Member State and possible reintroduction of border control at internal borders (Articles 14 and 15 as well as a reference to 'monitoring' throughout the text) and for certain adaptation on the implementing powers given to the Commission (Article 5, 8, 13 and 17). These adaptations are necessary as the relevant horizontal rules on comitology have been modified after the presentation of the initial proposal by Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers i. Moreover some further adaptations are made to the text, including those relating to the role of Frontex (Article 6), Europol (Article 8) and reporting to the European Parliament and Council (Article 19).
Contents
The first discussions on the Schengen evaluation proposal in the Council and in the European Parliament, as well as the latter's resolution of 7 July 2011 i, show that there is broad political support for the notion that a functioning mechanism needs to be accompanied by tools allowing for a serious deficiency in the application of the acquis by a Member State to be effectively responded to.
In its Communication on migration i the Commission suggested the possibility of the introduction of a mechanism allowing for a decision at the European level defining which Member States would exceptionally reintroduce border control at internal borders and for how long. The mechanism should only be used as a last resort after other (emergency) measures have been taken to stabilise the situation at the relevant external border section either at the European level, in a spirit of solidarity, and/or at national level to ensure better compliance with the common rules.
This idea was welcomed by the Justice and Home Affairs Council on 12 May 2011, and by the European Council at its meeting on 23-24 June 2011 where it called for a mechanism to be introduced in order to respond to exceptional circumstances putting the overall functioning of the Schengen cooperation at risk, without jeopardising the principle of free movement of persons.
This proposal constitutes a development of the policy on internal borders in accordance with Article 77 i (e) of the Treaty on the Functioning of the European Union (TFEU). Article 77 provides for the abolition of border control at internal borders as the ultimate 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 border control at internal borders must be accompanied by measures in the field of external borders, visa policy, the Schengen Information System, data protection, police cooperation, and judicial cooperation in criminal matters. Correct application of these measures makes it possible to maintain an area without border control at internal borders. Evaluation and monitoring of the correct application of these measures therefore serves the ultimate policy objective of maintaining the area free of border control at internal borders. Measures aimed at mitigating the adverse impact of persistent serious deficiencies in a Member State's application of the Schengen acquis , including the possibility of resorting to the exceptional temporary reintroduction of border control at internal borders as a measure of last resort in circumstances where the deficiencies would be such as to constitute a serious threat to public policy or to internal security at the Union or national level, likewise serve to further the attainment of this ultimate objective.
The proposal for the establishment of a Schengen evaluation mechanism presented in November 2010 contains all necessary information on the budgetary implications, which remain unchanged.