Explanatory Memorandum to COM(2020)46 - Draft Council Implementing Decision on addressing the deficiencies identified in the 2017 evaluation of the United Kingdom on the application of the Schengen acquis in the SIS

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dossier COM(2020)46 - Draft Council Implementing Decision on addressing the deficiencies identified in the 2017 evaluation of the United Kingdom on ...
source COM(2020)46 EN
date 20-04-2023


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

On 10 February 2015, the Council adopted Implementing Decision (EU) 2015/215 on the putting into effect of the provisions of the Schengen acquis on data protection and on the provisional putting into effect of parts of the provisions of the Schengen acquis on the Schengen Information System (SIS) for the United Kingdom of Great Britain and Northern Ireland 1 . Article 2 i of this implementing decision stipulates that upon the successful completion of the necessary Schengen evaluations, the Council should examine the situation with a view to adopting a second implementing decision setting the date for the final putting into effect by the UK of the provisions concerning SIS.

To this end, a first Schengen evaluation visit to the United Kingdom was carried out from 7 to 13 June 2015. The Evaluation Committee concluded following the visit that the UK had only partially implemented the Schengen acquis related to SIS and that a further visit was necessary to conclude the evaluation proceedings before the second implementing decision setting the date for the final putting into effect by the UK of the provisions concerning the SIS could be adopted.

At its meeting on 8 and 9 October 2015, the Council took note of the state of play in relation to the adoption of the second implementing decision (I/A item note 12246/15). In its conclusions of 4 December 2015, the Council agreed with the assessment of the Evaluation Committee, including the need for a further visit before the decision on the full application of SIS provisions could be taken 2 .

The Council also noted in the conclusions 3 that, since its competence for carrying out Schengen evaluations was to cease on 1 January 2016, the continuation of the evaluation process would have to take place in the framework of the new evaluation mechanism under Regulation (EU) No 1053/2013 4 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis. The Council therefore invited the Commission to carry out the recommended revisit under the new Schengen evaluation mechanism, led by the Commission. 


In line with Regulation (EU) No 1053/2013, the Commission has established an annual evaluation programme for 2017 5 with detailed plans for on-site visits to the Member States to be evaluated, areas to be evaluated and sites to be visited, and providing for the evaluation of the UK.

Based on this annual programme, a team of Member States and Commission experts carried out an evaluation revisit between 5 and 10 November 2017 to verify the UK's application of SIS. Their evaluation report 6 sets out their findings and assessments, including best practices and any deficiencies identified during the evaluation.

The Working Party for Schengen Matters (Schengen Evaluations) discussed the main conclusions of the evaluation visit at its meeting of 19 June 2018. The Commission presented the main findings of the report, underlining that instances of non-compliance identified in the 2015 report had not been remedied. The Commission concluded that the report identified very serious deficiencies and asked for guidance from the Council as to the follow-up to be given to the report. The Working party on Schengen Matters agreed at its meeting on 3 September 2018 that the evaluation procedure should continue.

On that basis the Working Party suggested to Coreper to recommend that the Council invite the Commission to submit a proposal to the Council to adopt recommendations for remedial action aimed at addressing the very serious deficiencies identified in the evaluation. The invitation to the Commission to submit a proposal for recommendations (11845/18) was adopted at the General Affairs Council on 18 September 2018.

On 29 March 2017, the United Kingdom submitted the notification of its intention to withdraw from the Union pursuant to Article 50 of the Treaty on the European Union (TEU). In accordance with Article 50 i TEU, the Treaties will cease to apply to the United Kingdom from the date of entry into force of a withdrawal agreement or, failing that, two years after that notification, unless the European Council, in agreement with the United Kingdom, unanimously decides to extend that period. After agreeing a first extension on 22 March 2019, and a second extension on 11 April 2019, the European Council adopted Decision (EU) 2019/1810 7 on 29 October 2019, in which it agreed, following a further request by the United Kingdom, to extend the period provided for in Article 50 i TEU until 31 January 2020.

In accordance with Article 50 TEU, the European Union negotiated with the United Kingdom an agreement setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union (‘Withdrawal Agreement’). On 11 January 2019, the Council adopted Decision (EU) 2019/274 on the signing of the Withdrawal Agreement 8 . Following further negotiations between the negotiators of the Union and of the United Kingdom during the months of September and October 2019, an agreement was reached on a revised text of the Withdrawal Agreement, which was endorsed by the European Council on 17 October 2019. On 21 October 2019, the Council adopted Decision (EU) 2019/1750 on the signing of the revised Withdrawal Agreement 9 . Part Four of the Withdrawal Agreement 10 provides for a transition period starting on the date of entry into force of the Withdrawal Agreement and ending on 31 December 2020. During the transition period, and unless the Withdrawal Agreement provides otherwise, Union law shall continue to apply to and in the United Kingdom. Against this background, the current proposal for a Council Implementing Decision setting out a recommendation seeks to ensure that the UK takes the necessary remedial actions aimed at addressing very serious deficiencies identified during the evaluation. 

This Decision will, in any event, apply only as long as Union law applies to and in the United Kingdom.

• Consistency with existing policy provisions in the policy area

These recommendations serve to implement the existing provisions in the policy area.

• Consistency with other Union policies

These recommendations may have links with the Union's data protection policy and the policies concerning police and judicial cooperation.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

Council Regulation (EU) no 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis.

• Subsidiarity (for non-exclusive competence)

Article 15(2) of Council Regulation (EU) No 1053/2013 specifically requests the Commission to submit a proposal to the Council to adopt recommendations for remedial action aimed at addressing any deficiencies identified in the course of the evaluation. Action at Union level is required to strengthen mutual trust between the Member States and to ensure better coordination at Union level in order to guarantee that all Schengen rules are applied effectively by the Member States.

• Proportionality

Article 15(2) of Council Regulation (EU) No 1053/2013 mirrors the specific powers of the Council in the field of mutual evaluation of the implementation of Union policies within the area of freedom, security and justice.

3. RESULTS OF EXPOST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex post evaluations/fitness checks of existing legislation

n.a.

• Stakeholder consultations

In line with Article 14(5) and Article 21(2) of Council Regulation (EU) no 1053/2013 Member States gave their positive opinion on the evaluation report in the Schengen Committee of 12 April 2018.

• Collection and use of expertise

n.a.

• Impact assessment

n.a.

• Regulatory fitness and simplification

n.a.

• Fundamental rights

The protection of fundamental rights when applying the Schengen acquis was taken into account during the evaluation process.

4. BUDGETARY IMPLICATIONS

n.a.

5. OTHER ELEMENTS

n.a.