Subject matter and scope
1. This Regulation establishes an evaluation and monitoring mechanism for the purpose of ensuring that Member States apply the Schengen acquis effectively, efficiently and correctly, thereby contributing to maintaining mutual trust among Member States and a well-functioning area without internal border control.
2. The evaluation and monitoring mechanism established shall provide for objective and impartial evaluation and monitoring activities aimed at:
(a)
verifying the application of the Schengen acquis in the Member States to which it applies in full as well as in Member States to which, in accordance with the relevant Protocols annexed to the TEU and to the TFEU, the Schengen acquis applies in part;
(b)
verifying that the necessary conditions for the application of all relevant parts of the Schengen acquis have been met in those Member States in respect of which a Council decision stating that the provisions of the Schengen acquis are to apply in full or in part has not been taken, with the exception of those Member States whose evaluation will already have been completed at the time of entry into force of this Regulation.
3. Evaluations may cover all aspects of the Schengen acquis and take into account the functioning of the authorities that apply the Schengen acquis. Evaluations may cover in particular the following policy areas: management of the external borders, absence of controls at internal borders, visa policy, return, large-scale information systems supporting the application of the Schengen acquis , police cooperation, judicial cooperation in criminal matters and data protection.
Definitions
For the purpose of this Regulation, the following definitions apply:
(1)
‘Schengen acquis ’ means the provisions integrated into the framework of the Union in accordance with Protocol No 19 on the Schengen acquis integrated into the framework of the European Union, annexed to the TEU and the TFEU, together with the acts building upon them or otherwise related to them;
(2)
‘first-time evaluation’ means an evaluation to verify whether a Member State bound by the Schengen acquis and for which internal border controls have not been lifted fulfils the conditions to apply the Schengen acquis in full or, in the case of a Member State not participating in the Schengen acquis and which has been authorised by the Council to apply parts of the Schengen acquis , to verify whether the Member State fulfils the conditions to apply the Schengen acquis in part;
(3)
‘periodic evaluation’ means an evaluation included in the multiannual evaluation programme and annual evaluation programmes to verify the application of the Schengen acquis by a Member State with a view to assessing the Member State’s overall performance in the application of the Schengen acquis;
(4)
‘unannounced evaluation’ means an evaluation, not included in the multiannual and annual evaluation programmes, to verify the application of the Schengen acquis by one or more Member States in one or more policy areas;
(5)
‘thematic evaluation’ means an evaluation, included in the annual evaluation programme, aimed at providing an analysis of Member States’ legislation or practices in the application of the Schengen acquis , or the application of its specific parts across several Member States;
(6)
‘visit’ means a visit to a Member State or to its consulates for the purpose of carrying out an evaluation or monitoring activity;
(7)
‘revisit’ means a supplementary visit following an evaluation that identified a serious deficiency or following a first-time evaluation that concluded that the evaluated Member State did not fulfil the necessary conditions to apply the Schengen acquis;
(8)
‘verification visit’ means a supplementary visit, other than a revisit, carried out to monitor the progress of the implementation of an action plan;
(9)
‘non-compliant finding’ means an assessment of a finding according to which national laws, regulations and administrative measures, or their implementation, do not comply with the legally binding provisions of the Schengen acquis ;
(10)
‘serious deficiency’ means a general assessment of the situation attributed to one or more non-compliant findings which concern the effective application of the Schengen acquis and which, individually or in combination, risk to constitute a violation of fundamental rights or which have, or risk to have over time, a significant negative impact on one or more Member States or on the functioning of the area without internal border control;
(11)
‘team’ means a group comprising experts designated by Member States and Commission representatives who carry out evaluation and monitoring activities;
(12)
‘observer’ means an expert designated by a Union body, office or agency referred to in Article 7 participating in an evaluation or monitoring activity;
(13)
‘trainee expert’ means an expert designated by a Member State or a Commission representative to be trained to become a Schengen evaluator.
Responsibilities and duty of cooperation
1. Member States and the Commission shall be jointly responsible for the implementation of the evaluation and monitoring mechanism, with the contribution of the relevant Union bodies, offices and agencies referred to in Article 7 in accordance with their respective mandates.
2. The Commission shall have an overall coordination role in relation to the establishment of the annual and multiannual evaluation programmes, the drafting of questionnaires, the setting of schedules of visits, the conducting of visits and the drafting of evaluation reports and recommendations. It shall also ensure that the follow-up and monitoring activities are carried out.
3. The Council shall adopt recommendations in cases of serious deficiencies, first-time evaluations, thematic evaluations and where the evaluated Member State substantially contests the draft evaluation report containing draft recommendations. As part of the monitoring phase of the evaluation and monitoring mechanism, the Council shall adopt implementing decisions on closure of the action plans in cases of serious deficiencies and first-time evaluations.
The Council shall carry out its political role in relation to the governance of the Schengen area by discussing the reports submitted by the Commission in accordance with Article 25, including on the state of play with regard to the implementation of action plans, and by holding political discussions concerning the effective implementation of the Schengen acquis and proper functioning of the area without internal border control. To this end, the Commission and the Council shall cooperate fully throughout all stages of the evaluation and monitoring mechanism carried out under this Regulation. In particular, the Commission shall provide the Council with relevant and timely information in relation to the programming and implementation of the evaluation and monitoring activities.
4. Member States and the Commission shall cooperate fully at all stages of evaluations in order to ensure the effective implementation of this Regulation.
5. Member States shall take all measures, general or particular, to support and assist the Commission and the teams in the implementation of evaluation and monitoring activities.
Member States shall ensure that the Commission and the teams carrying out evaluation and monitoring activities are able to perform their tasks effectively, in particular by allowing the Commission and the teams to address enquiries to relevant persons directly and by providing full and unimpeded access to all areas, premises and documents required for the evaluation or monitoring activity, including national and internal guidelines and instructions. Access to relevant classified information shall be granted to team members and observers having appropriate security clearance issued by a competent authority.
6. The Commission shall be responsible for making the necessary travel arrangements to and from the visited Member State for the Commission representatives and Member State experts in the teams.
The Commission shall bear the travel and accommodation costs for experts participating in the visits and the trainee expert referred to in Article 16(2).
The visited Member State shall be responsible for providing the necessary transport on location, except for unannounced visits.
Forms of evaluation
1. Evaluations may take any of the following forms:
(a)
first-time evaluations;
(b)
periodic evaluations;
(c)
unannounced evaluations;
(d)
thematic evaluations.
2. The Commission shall organise first-time evaluations following a Member State’s declaration of readiness to be evaluated.
3. The Commission may organise unannounced evaluations, in particular:
(a)
to evaluate the application of the Schengen acquis applicable at internal borders;
(b)
when it becomes aware of emerging or systemic problems that could potentially have a significant negative impact on the functioning of the area without internal border control, including circumstances that would constitute a threat to public policy or internal security within that area;
(c)
when it has grounds to consider that a Member State is seriously neglecting its obligations under the Schengen acquis , including when it has grounds to consider that there are serious violations of fundamental rights.
4. The Commission may organise thematic evaluations, in particular to assess the implementation of significant legislative changes as they start to apply and of new initiatives, or to assess issues across policy areas or practices of Member States facing similar challenges.
Forms of monitoring activities
Monitoring activities may include any of the following:
(a)
the review of action plans and follow-up reports submitted by the evaluated Member States;
(b)
revisits;
(c)
verification visits.
Evaluation and monitoring methods
Evaluation and monitoring activities referred to in Articles 4 and 5 may be carried out by means of visits and questionnaires or, exceptionally, other remote methods.
Each evaluation and monitoring method may be used independently or in combination with another method, as appropriate.
Cooperation with Union bodies, offices and agencies
1. The Commission shall cooperate with relevant Union bodies, offices and agencies which are participating in the implementation of the Schengen acquis , as well as with the European Union Agency for Fundamental Rights (FRA).
The Commission may enter into arrangements with those Union bodies, offices and agencies to facilitate cooperation concerning the implementation of this Regulation.
2. The Commission may request Union bodies, offices and agencies referred to in paragraph 1 to provide, in accordance with their respective mandates, information, statistical data or risk analyses, including on corruption and organised crime, insofar as these may undermine the application of the Schengen acquis by the Member States, to improve situational awareness within the meaning of Regulation (EU) 2019/1896 regarding the implementation of the Schengen acquis by the Member States.
The evaluated Member State may comment on the information provided under the first subparagraph.
Cooperation with Frontex
1. By 31 August each year, Frontex shall submit to the Council, the Commission and the Member States a risk analysis for the purpose of establishing the annual evaluation programme referred to in Article 13.
The risk analysis referred to in the first subparagraph shall cover all relevant aspects related to European integrated border management and shall contain recommendations on specific sections of the external borders, specific border crossing points and specific sites relevant for evaluating compliance with Directive 2008/115/EC of the European Parliament and of the Council ( 22 ) in the Member States to be evaluated in the following year in accordance with the multiannual evaluation programme established pursuant to Article 12.
2. By 31 August each year, Frontex shall submit to the Commission a separate risk analysis containing recommendations for unannounced evaluations in the following year, irrespective of the order of Member States to be evaluated each year, in accordance with the multiannual evaluation programme established pursuant to Article 12.
The recommendations referred to in the first subparagraph may concern any region or specific area and shall contain a list of at least 10 specific sections of the external borders, at least 10 specific border crossing points and at least 10 specific sites relevant for evaluating compliance with Directive 2008/115/EC, as well as other relevant information.
Cooperation with Europol
In accordance with Article 4(1), point (u), of Regulation (EU) 2016/794, Europol shall provide expertise, analysis, reports and other relevant information to support the implementation of this Regulation.
Synergies with other evaluation and monitoring activities
1. The Commission shall use the results of relevant mechanisms and instruments, including evaluation and monitoring activities of Union bodies, offices and agencies which are participating in the implementation of the Schengen acquis , in particular the vulnerability assessment, and of the FRA, as well as of independent national monitoring mechanisms and bodies, in preparing the evaluation and monitoring activities, to improve awareness on the functioning of the area without internal border control and to avoid the duplication of efforts and conflicting measures. When available, the Commission may, in agreement with the evaluated Member State, use the results of national quality-control mechanisms.
2. Recommendations under this Regulation shall be complementary to recommendations made pursuant to Article 32(7) of Regulation (EU) 2019/1896 under the vulnerability assessment.
3. The Commission may share with relevant national and Union bodies, offices and agencies referred to in paragraph 1 in a secure and timely manner details of evaluation reports, action plans and updates on the implementation of the action plans.
The information sharing referred to in the first subparagraph shall take place in accordance with the mandates of the Union bodies, offices and agencies concerned.
Information from third parties
Without prejudice to Article 20(1), in the programming and implementation of the evaluation and monitoring activities, the Commission may take into account information related to the implementation of the Schengen acquis , provided by third parties, including independent authorities, non-governmental organisations and international organisations.
The Commission shall inform the Member States of the information provided by third parties which it identifies as being relevant to the programming of evaluation and monitoring activities. Member States shall then have the opportunity to comment on the substance of that information.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
