EUROPEAN COMMISSION Brussels, 2.6.2021 SWD(2021) 119 final COMMISSION STAFF WORKING DOCUMENT



IMPACT ASSESSMENT

Accompanying the document Proposal for a Council Regulation on the establishment and operation of an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing Regulation (EU) No 1053/2013























{COM(2021) 278 final} - {SEC(2021) 225 final} - {SWD(2021) 120 final}



Contents 1.Introduction: Political and legal context 1.1.A New Strategy for Schengen 1.2.Schengen Governance and the role of the Schengen Evaluation and Monitoring Mechanism 1.3.Shortcomings of SCH-EVAL 2.Problem definition 2.1.What are the problems? 2.2.What are the problem drivers? 2.3.How will the problem evolve? 3.Why should the EU act? 3.1.Legal basis 3.2.Subsidiarity: Necessity of EU action 3.3.Subsidiarity: Added value of EU action 4.Objectives: What is to be achieved? 4.1.General Objective 4.2.Specific Objectives 5.What are the available policy options? 5.1.What is the baseline from which options are assessed?

5.2.Option 1: Operational changes 5.3.Option 2: Targeted legislative changes 5.4.Option 3: Ambitious legislative changes 5.5.Option 4: Combined approach 5.6.Policy options discarded at an early stage 6.What are the impacts of the policy options? 6.1.Economic impact 6.2.Social Impact 6.3.Impact on fundamental rights 6.4.Administrative costs 7.How do the policy options compare? 7.1.Effectiveness 7.2.Efficiency 7.3.Proportionality 7.4.Coherence 7.5.Stakeholders’ support 8.Preferred policy option 8.1.Choice of Preferred Policy Option 8.2.REFIT (simplification and improved efficiency) 9.How will actual impacts be monitored and evaluated?............

ANNEX 1: PROCEDURAL INFORMATION ANNEX 2: STAKEHOLDER CONSULTATION ANNEX 3: IMPLEMENTATION OF THE SCH-EVAL REGULATION ANNEX 4: WHO IS AFFECTED AND HOW? Figures Figure 1 – Schengen Governance Figure 2 – SCH-EVAL evaluation cycle Figure 3 – Evaluations under the first five-year cycle Figure 4 – Length of the evaluation process Figure 5 – Formally closed procedures Figure 6 – Currently evaluated policy fields Figure 7 – Number of experts per Member State during the first five-year cycle Figure 8 – Intervention logic Figure 9 – Evaluation visits (2015-2020) Figure 10 – Number of experts Figure 11 – Yearly average length of the evaluation process Figure 12 – Evaluations – Comparison of policy options Figure 13 – Member State experts – Comparison of policy options Figure 14 – Length of the procedure – Comparison of policy options

Figure 15 – Evaluation visits (2015-2020) Figure 16 – Evaluation visits – Comparison of policy options Figure 17 – Number of Member States Experts per evaluation Figure 18 – Member States Experts – Comparison of policy options Figure 19 – Main steps of the evaluation process Figure 20 – Length of the evaluation process (2015-2019) Figure 21 – Length of the evaluation process – Comparison of policy options Tables Table 1 – Problem 1 and corresponding Drivers Table 2 – Problem 2 and corresponding Drivers Table 3 – Problem 3 and corresponding Drivers Table 4 – Failures in the design and implementation of the Regulation Table 5 – Overview of Option 1 Table 6 – Overview of Option 2 Table 7 – Overview of Option 3 Table 8 – Overview of Option 4 Table 9 – Synopsis of the policy options and key measures Table 10 – Impact on administrative costs – Comparison of policy options Table 11 – Situation in the first five-year cycle (2015-2019)

Table 12 – Summary of administrative costs (complete table in Annex 4) Table 13 – Comparison of policy options Table 14 – Evaluation team size – Comparison of the policy options Table 15 – Overview – Comparison of policy options Table 16 – Impacts on simplification and administrative burden Table 17 – Areas of administrative simplification potential Table 18 – Success indicators Table 19 – Stakeholders’ consultation Table 20 – First five-year cycle – evaluation and monitoring activities Table 21 – Options 1 and 2 evaluation and monitoring activities Table 22 – Option 3 evaluation and monitoring activities Table 23 – Option 4 evaluation and monitoring activities Table 24 – Evaluation team size – Comparison of the policy options Table 25 – Overview of benefits Table 26 – Overview of costs Table 27 – Costs for Member States Table 28 – Costs for the Member States evaluated Table 29 – Yearly administrative costs for the Commission Table 30 – Yearly costs for EU bodies / agencies risk analyses Table 31 – Yearly costs for EU bodies / agencies observers

Table 32 – EU bodies’ and agencies’ trainings Table 33 – Summary of administrative costs Glossary Term or acronym Meaning or definition DPA Data Protection Authority EASO European Asylum Support Office ECRIS-TCN European Criminal Records Information System EDPS European Data Protection Supervisor EES Entry / Exit System ETIAS European Travel Information and Authorisation System eu-LISA EU Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice EURODAC European Asylum Dactyloscopy Database Europol European Union Agency for Law Enforcement Cooperation EUROSUR European Border Surveillance System FRA Fundamental Rights Agency Frontex European Border and Coast Guard Agency (EBCG) Schengen Committee Committee assisting the Commission [within the meaning of Regulation (EU) No 182/2011] SCH-EVAL Schengen Evaluation And Monitoring Mechanism SCH-EVAL working party Council Working Party for Schengen Matters – Schengen Evaluation SIS Schengen Information System TFEU Treaty on the Functioning of the European Union VIS Visa Information System 1.Introduction: Political and legal context 1.1.A New Strategy for Schengen Schengen is one of the most significant achievements of the European integration. It is an area where more than 420 million people, as well as goods and services, can circulate freely without being subject to border controls. Schengen contributes to the functioning of the Single Market and its creation has brought social and economic benefits to the European society. The area without internal borders controls relies on Member States applying effectively and efficiently the Schengen legal framework. It requires common efforts to maintain a high level of mutual trust between Member States and ultimately on a correct and efficient implementation of the Schengen legal framework. Deficiencies in one Member State (e.g. in the external border management) can affect all others and subsequently put Schengen at risk. The Schengen Evaluation and Monitoring Mechanism (hereafter ‘SCH-EVAL’ or ‘the Mechanism’) is essential for the effective functioning of Schengen by identifying and remedying problems and improving Member State implementation of the legal framework. As a peer-to-peer instrument, the Mechanism supports the building of mutual trust among Member States. For the last 35 years, Schengen has been subject to continuous revisions to reinforce this trust. Today, it faces a different reality and challenges than when it was established. Instability in Europe’s neighbourhood and beyond, the 2015 refugee crisis and its consequences, the persistent terrorist threat, and the COVID-19 pandemic have led to some Member States reintroducing internal border controls. In some cases, controls have been renewed several times since 2015. These developments have highlighted the need to improve the governance structure and the tools available to make Schengen work. To address the challenges faced by the Schengen area, Commission President von der Leyen announced a Strategy on Schengen in her State of the Union address. In the New Pact on Asylum and Migration , the Commission indicated that the Strategy would combine legislative and operational initiatives aimed at ensuring a stronger, more resilient area without internal border controls, while reinforcing its governance and monitoring structures Schengen. One such initiative is the revision of the Mechanism. Other EU institutions stressed the need to reform the Mechanism. Both the European Parliament, in its 2017 resolution, and the Council, already through the consultation launched by the Finnish Presidency in 2019, invited the Commission to act. More recently, the Council adopted conclusions on the Mechanism inviting the Commission to put forward initiatives, in its proposal for the revision of SCH-EVAL, to streamline and clarify where necessary the evaluation process, and, in particular, asked to ensure that the Mechanism is adaptable to the evolving circumstances and developments of the Schengen acquis in order to address new challenges and to adapt to new realities. The objective of the revision is to ensure that SCH-EVAL becomes a fully effective tool for evaluating the functioning of Schengen and for ensuring that the recommendations stemming from the evaluations are effectively implemented by Member States. 1.2.Schengen Governance and the role of the Schengen Evaluation and Monitoring Mechanism In the last years, a number of initiatives have reinforced the legislative framework in the first and second pillars. For the field of external border management, the initiatives included the development of a new IT architecture (such as EES, ETIAS), and the interoperability of the various IT systems underpinning the functioning of Schengen. Recent reforms also included systematic checks of EU citizens against relevant databases at external borders, the adoption of the Frontex Regulation in 2016, and its subsequent review in 2019 (which reinforced the mandate and competences of the agency with the inclusion of revised provisions on EUROSUR), as well as the gradual development of an integrated system for managing the EU’s external borders (the European integrated border management). More recently, the Commission put forward a proposal for a pre-entry screening applicable to all third-country nationals who cross the external borders without authorisation. Recent crises have shown that the EU is not sufficiently equipped to foresee, prepare and react in a coordinated and rapid manner to threats that may have an impact on the functioning of Schengen and require the adoption of measures of last resort. The Commission plans to strengthen Schengen’s architecture further by setting up a mechanism to tackle concrete and immediate threats to the Schengen area in a coordinated manner under the Schengen Borders Code. To enhance the security of Schengen, the Commission intends to replace the Directive on the obligation of carriers to communicate Advance Passenger Data (API). New developments have been introduced under the second pillar and further changes are expected. The legislative package adopted in 2018 has widened the scope and functionalities of the Schengen Information System (SIS). The implementation of the revised Visa Information System (VIS) is planned to be completed by the end of 2021. The Commission has put forward proposals for a recast Return Directive and a revision of the Europol mandate, and is planning to strengthen police cooperation via an EU Police Cooperation Code. Any legislation is only as good as its implementation. A well-functioning Schengen area depends on the correct and efficient implementation of the common rules, i.e. the Schengen acquis and, in more general terms, on mutual trust among Member States. It is therefore crucial to have an effective monitoring mechanism to verify how countries implement the Schengen acquis and recommend improvements to its implementation. In its origins, the Mechanism was intergovernmental and remained in the hands of the Council. In 2013, the Council and the Parliament adopted the ‘Schengen Governance package’.This package included a Council Regulation establishing the current ‘Schengen Evaluation and Monitoring Mechanism’. The Regulation transferred the responsibility for the coordination and overall organisation of the Mechanism to the Commission.

However, under Article 70 TFUE, the Mechanism remains a shared responsibility, with the Commission carrying out evaluations jointly with Member State experts and supported by EU agencies and bodies.The Regulation introduced a five-year evaluation cycle and new tools so that the Mechanism can better respond to new challenges and provide an overview of horizontal issues affecting Schengen’s functioning. Within the Schengen Governance architecture, the purpose of SCH-EVAL has remained unchanged i.e. to maintain a high level of accountability, ownership of results and mutual trust among participating Member States. It contributes to a well-functioning Schengen by guaranteeing that Member States apply the Schengen acquis effectively following the agreed common standards, fundamental principles and norms. SCH-EVAL is supposed to achieve these goals by objective and impartial evaluations that are able to: ·quickly identify deficiencies in the application of the Schengen legal framework that could disrupt Schengen; ·ensure these deficiencies are swiftly addressed (to prevent these disruptions and ensure correct application of the Schengen acquis); and ·provide the basis for a political dialogue on the functioning of Schengen as a whole. Thanks to the peer-to-peer element, Member States can get direct knowledge of the situation in other Member States by their experts’ participation in the evaluation visits. Member State experts check what their peers are doing, recommending solutions and urging action if the Member State does not implement them. This all-encompassing mutual trust element and its intergovernmental origin explain some of the key features of the Mechanism and current institutional balance: ·The Mechanism covers all areas of the Schengen acquis (pillars one and two of Schengen governance); ·Evaluation teams are composed by Commission and Member State experts (80% of the team is made of national experts and the remaining 20% of Commission’s representatives; the representatives from EU agencies and bodies, although observers, are not formally part of the team); ·While the Commission is responsible for adopting reports, these are co-drafted and agreed by the evaluation team and must be discussed with the evaluated Member State, and receive the positive opinion of the Schengen Committee, in which Member States are represented; ·The Council adopts recommendations for remedial action upon a Commission proposal; The Commission is responsible for the monitoring of how Member States are addressing deficiencies while keeping the Council and the European Parliament informed; and ·The findings are discussed only between Member States and the Commission with little transparency vis-à-vis other actors, i.e. reports are EU RESTRICTED. The significant legislative developments under the two first pillars of the Schengen architecture require effective implementation by the Member States. Despite the substantial reinforcement of pillars one and two, SCH-EVAL remained unchanged in the last years, which affected its capacity to keep up with the legislative developments. For a stronger and resilient Schengen, it is important that the Mechanism remains fit for purpose and reaches its full potential in order to be able to adapt to recent legislative developments, address new challenges and include new Member States that are fully or partly applying the Schengen acquis. However, as shown in section 1.3, the current Mechanism has shortcomings that need remediation for the Mechanism to become a fully effective tool for evaluating the functioning of Schengen and for ensuring that recommendations stemming from the evaluations are effectively implemented. 1.3.Shortcomings of SCH-EVAL In line with its reporting obligations to the Council and European Parliament, the Commission undertook a comprehensive review of the Mechanism’s functioning presenting information on the effectiveness and relevance of the Regulation. The five-year review, building of the six policy areas currently under evaluation provides a state of play of the implementation of the Schengen acquis and it serves as basis for reflection on how to improve the Mechanism. For this exercise, the Commission collected and analysed data on the first five-year cycle and took into consideration information from relevant actors about the most critical aspects of this Mechanism. This Impact Assessment builds on the data collected in the framework of the five-year Review and its results (see Annex 3). It covers the overall functioning of the Mechanism and the problem analysis is not limited only to shortcomings related to the substance of the evaluation, i.e. six policy areas. Overall, the five-year review confirmed that the Mechanism has led to substantial and concrete improvements in the implementation of the Schengen acquis, proving its added-value in ensuring Schengen’s efficient functioning. The more than 200 evaluations carried out helped identify a number of serious deficiencies and address them swiftly. It also brought about tangible improvements in all policy fields, and made an essential contribution to the further development of the Schengen acquis. The added-value and necessity of having an evaluation and monitoring mechanism of the Schengen acquis is recognised by the Council which considered that ‘[w]hile fulfilling its core role of monitoring the proper application of the Schengen acquis, the evaluation process has brought further benefits in most Member States, including by strengthening national coordination, increasing expertise and exchanges via the experts participating in the evaluations, and feeding recommendations into national plans and strategies.’ The European Parliament stressed the ‘great value [of] the renewed Schengen evaluation mechanism as it promotes transparency, mutual trust and accountability between the Member States by scrutinising the way they implement the different fields of the Schengen acquis’.

However, the five-year review also identified a number of shortcomings that prevent the Mechanism from working as effectively as it could and should, undermining its full potential. This finding was in line with the 2017 report by the European Parliament, the Member States’ consultation under the Finnish presidency in 2019 and the 2019 report of the Court of Auditors. The study carried out in 2020 on behalf of the European Parliament and the stakeholders’ consultation supporting this impact assessment reinforced this conclusion. Main shortcomings identified in the functioning of SCH-EVAL following the review of the first five-year Multiannual Evaluation Programme ·The excessive length of the evaluation process, even in cases of serious deficiencies; ·The high resource intensity for Member States, the Commission and EU agencies and bodies; ·The excessive focus of evaluations (and then recommendations) on very specific and numerous details rather than the core elements of the Schengen acquis; ·The lack of horizontal findings about the state of Schengen and the interplay among various policy fields; ·Unannounced visits not being as effective as originally conceived and little strategic use of thematic evaluations; ·Slow follow-up and implementation of the action plans to remedy identified deficiencies and the monitoring generally not being comprehensive and consistent; ·Insufficient effectiveness of recommendations as a tool to ensure that Member States take rapid action with deficiencies in the expected peer-to-peer pressure; ·Lack of triggering political discussions on the state of Schengen in relevant fora, and the irregular involvement of the European Parliament; ·Member States’ contribution in terms of experts’ participation not always matching the needs; ·Duplications with other EU mechanisms, notably Frontex Vulnerability Assessment; and ·Drawbacks in the integration of fundamental rights in the evaluations of external borders management. Thus, the five-year review concluded that the Mechanism had succeeded in identifying many deficiencies and addressing them, driving towards the higher harmonisation of Member States practices according to high standards. However, it had failed to do so at the speed that the Member States and the European Parliament considered needed, given the current challenges and new realities, and in the areas that matter. It has also failed to provide for the basis that would facilitate a political discussion on the state of Schengen and its functioning. Several unforeseen changes to material conditions and great uncertainty marked the beginning of the new evaluation cycle (2020-2024) as the COVID-19 pandemic spread throughout Schengen. The Commission had to postpone repeatedly a number of evaluations scheduled in the annual programme. Covid-19 brought to the fore the rigidities of the Mechanism and its unsuitability to account for changing conditions. To address these shortcomings, the five-year review indicated possible operational measures to improve the Mechanism but it highlighted that, for the instrument to work fully effectively, it is essential to complement them with legislative changes. 2.Problem definition 2.1.What are the problems? Recent challenges have revealed a fragile trust among Member States that has manifested in several ways. The most notable was the prolonged reintroduction of internal border checks by six Member States. SCH-EVAL is a technical instrument that aims at facilitating political dialogue. External political factors will always influence even the best-designed and most effective instruments. In the past five years, the visibility of SCH-EVAL’s results and its capacity to build trust and promote political discussion has not been optimal. Evidence of this is that despite positive evaluations in external borders management, police cooperation and the Schengen Information System, and an overall assessment that Member States are implementing the Schengen acquis adequately, Member States continue prolonging internal border controls based on, among other reasons, weaknesses at the external borders. Furthermore, as shown in section 2.1.1, even when SCH-EVAL identified serious deficiencies, discussions on the findings hardly reached the ministerial level. SCH-EVAL identified serious deficiencies in 10 evaluation visits. However, SCH-EVAL triggered ministerial discussion only in the case of Greece’s serious deficiencies in the external border management. Given SCH-EVAL’s role in the overall Schengen Governance architecture, it is important that the Mechanism is fit for purpose and deploys its full potential, while being more manageable from a resource point of view. The Impact Assessment analyses the problems affecting the functioning of the Mechanism. These problems (as well as drivers and policy options) were identified based on the conclusions of the five-year review of the implementation of the current Regulation, the recommendations collected during the stakeholders’ consultation organised for this Impact Assessment as well as studies carried out on the functioning of the Mechanism and information from Council documents and European Parliament resolutions. The shortcomings identified in the first five-year cycle can be summarised as three interlinked problems: ·Limited strategic focus and significant fragmentation, preventing an overview of the functioning of Schengen as a whole that would otherwise facilitate political discussion; ·Insufficient capacity to identify and quickly adapt and react to new circumstances, legislative developments and trends, particularly violations of fundamental rights at the external borders; and ·Slow adoption and implementation of remedies, with a peer-to-peer system that does not exert the expected pressure. 2.1.1.Problem 1 – Limited strategic focus and significant fragmentation preventing an overview of the functioning of Schengen as a whole that would otherwise facilitate political discussion The Regulation clearly states that SCH-EVAL should contribute to ‘political discussions at ministerial level on the correct functioning of Schengen, including discussions in situations where evaluation reports have shown serious shortcomings …[and] should assist the Council in taking decisions… to ensure the efficient functioning of Schengen’ (Recital 11). To do so, it is important to verify that Member States are correctly applying the various elements of the Schengen acquis. However, in the first five-year cycle, the limited strategic focus and significant fragmentation of the evaluations prevented the Mechanism from providing an overview of the functioning of Schengen, limiting political discussion (e.g. how well Schengen was working, common problems to all Member States and best practices). Given the substantial number of policy fields and legal acts that sustain Schengen (around 200 acts), it is impossible to focus on the implementation of all provisions. The Mechanism should ensure that Member States properly implement the core elements and have a helicopter view across different policy fields. The actors involved (the Member States and the Commission in the Schengen Committee) ‘pre-selected’ six priority policy fields that should be evaluated in the first five-year cycle, which they also confirmed for the second cycle. These fields include external border management, common visa policy, police cooperation, Schengen Information System, data protection, and return. In theory, the Mechanism also developed a method for identifying more targeted evaluations for each Member State, based on risk analysis submitted by relevant EU agencies and bodies. However, in the attempt to cover as many provisions as possible, SCH-EVAL has mainly focused on the correct transposition and implementation of all the provisions of the Schengen acquis in these six policy fields (about 25 legal acts). This focus resulted in voluminous detailed reports with numerous findings that produced equally numerous and punctual recommendations, often related to local issues, without assessing their overall impact on Schengen. From the shade of blue in the signposting of the border crossing points to the insufficient light in the booths, evaluations, reports and recommendations focused on too many issues that, although linked to specific obligations under the Schengen acquis, did not necessarily have an impact on the functioning of Schengen. This focus on details, while instructive, has meant that evaluations have not been used to identify system-based deficiencies across Member States or to draw conclusions on how well a Member State applies the legal framework overall. Even a Member State with a robust system could still receive 40 recommendations in one single policy field, 15 related to material problems limited to specific airports. In one year, the Mechanism evaluates about 6-8 Member States in each of the six policy fields. A single Member State could receive hundreds of recommendations to implement through a minimum of six action plans. For the Commission, it has meant drawing conclusions about the state of Schengen from as many as 1 000 findings and recommendations. Because of this focus on details, it has become almost impossible to identify potential problems generated by the interplay between policy fields.

With the entry into force of the new legal basis for using the Schengen Information System (SIS), SIS will become a key element to support return systems by recording entry bans issued under the Return Directive. Since these entry bans prohibit entry into the territory of all Member States, not only into the territory of the issuing Member State, its timely issuance and upload into the SIS is particularly important. If country X does not systematically issue and register in SIS these entry bans, the evaluation reports on the Schengen Information System and in the field of return for that country might not consider it as a key deficiency, since in isolation these are not core elements of the SIS or of the return system. However, without the alert in SIS, the European dimension of the measure will not be effective. It would not be possible for another Member State to prohibit the entry into Schengen territory of a person subject to an entry ban somewhere else. These deficiencies may go unnoticed amid other deficiencies. However, suppose a Member State with a significant flow has one or both of these deficiencies or these deficiencies are present in many Member States. This scenario could impact Schengen’s functioning. As the Mechanism focused on these detailed regular evaluations in the six policy fields, it failed to utilise thematic evaluations, created partly to help the system identify common challenges and trends. Only two thematic evaluations took place in five years, respectively on local Schengen cooperation in the area of visa policy and on the national strategies for integrated border management. The use of thematic evaluations (which aim at verifying the application of specific parts of the Schengen acquis across several Member States) could have been more strategically use to obtain an overview of Member States’ performance in specific areas of the Schengen acquis. The five-year review highlighted that the localised nature of recommendations has also discouraged discussion in the Council. There were too many detailed reports (about 35-40 a year) and thus they were rarely discussed in the Schengen Committee, the SCH-EVAL working party or at political level. As a result, in the past five years, Ministers have only once discussed SCH-EVAL findings. It was Greece’s serious deficiencies on external border management, which led to the reintroduction of internal border controls. Even when a later evaluation considered that Greece had addressed those deficiencies, the Mechanism failed to trigger Ministerial level discussions. The lack of strategic focus and political discussion on results emerged during the stakeholders’ consultation as one of the main problems. Several Member States (during the consultation and the 2021 Council conclusions) stressed the need to foster political discussion on the deficiencies identified during the Schengen evaluations. Some DPAs and EDPS highlighted the lack of visibility of the Mechanism and its results at the national level. Some civil society organisations indicated that SCHEVAL should guarantee proper political discussion on the state of Schengen and put pressure on Member States to adopt remedial actions. A recent study conducted on behalf of the European Parliament also highlighted the lack of strategic focus and resulting lack of overview of Schengen’s functioning as one of the main criticisms: ‘[SCH-EVAL] does not leverage its findings for broader aims such as the further development of national or EU/Schengen policies’. ‘[I]t provides a snapshot-style evaluation of specific Schengen policy area(s) in a particular country but does not provide the instruments to extract from those findings Schengen-wide conclusions of a more strategic nature’. During the stakeholders’ consultation, the European Parliament echoed that the Mechanism’s current design and functioning prevented it from having an overview on Schengen as a whole. As further clarified in the section on drivers, the limited political discussion of the evaluation findings derives from the significant number of reports (due to the fragmentation of the instrument into six policy fields) and sets of very detailed recommendations as well as from the complicated decision-making process. All this led to reports remaining at the technical level. In addition, the Council’s involvement in all the different procedures have limited the Council’s capacity to exert the aimed-for peer pressure and focus on the most politically relevant aspects that could have an impact on the functioning of Schengen. On the Commission’s side, the regular adoption of the annual SCH-EVAL report would have also helped bringing political attention to evaluation results and progress made by Member States. Problems Drivers Area of intervention Limited strategic focus and significant fragmentation preventing an overview of Schengen Primary drivers ·A broad scope with gaps and not adapted to new realities (Driver 1.1), which does not entirely ensure a fully efficient evaluation of Schengen’s functioning and limits the Mechanism’s strategic focus. Material and temporal scope ·A fragmented articulation of evaluations into six policy fields that are not adapted to new legislative developments and needs (Driver 1.2), which leads to a significant number of reports / recommendations per Member State and limits the Mechanism’s strategic focus and its capacity to provide an overview of a Member State performance overall and of Schengen’s functioning. ·A too limited temporal scope to allow for a flexible use of available tools (Driver 1.3), limiting the Mechanism’s strategic focus and its capacity to react to new circumstances. ·Unbalanced & underused sources of information and expertise (Driver 4.1) and limited coordination and synergies with other instruments (Driver 4.2) when designing specific evaluations, the combination of which does not allow for targeted and strategic evaluations and leads to very technical and numerous recommendations, leading to fragmentation thereby limiting the Mechanism’s strategic focus. Evaluation design / implementation – actors & synergies Secondary drivers ·Inadequate criteria underlying evaluation and monitoring tools (Driver 2.2), in particular thematic evaluations and revisits, which does not allow for the Mechanism to make the best and most strategic use of the tools available. Evaluation & monitoring tools ·Complex decision making evaluation process (Driver 3.1) and a potential disproportionate institutional balance (Driver 3.3) with too much Member State/Council supervision, which reduces the capacity of the Council to have a political discussion on the state of Schengen and the areas that matters (serious and recurrent deficiencies), thereby reducing the Mechanism’s strategic focus. Decision-making & institutional balance 2.1.2.Problem 2 – Insufficient capacity of the Mechanism to identify and quickly adapt and react to new circumstances, legislative developments and trends, particularly violations of fundamental rights at the external borders The Regulation introduced multiannual and annual evaluation programmes to create certainty in evaluations’ consistency and frequency. The Mechanism considered these ‘periodic evaluations’ as the main tools to ensure an overall correct application of the acquis. It also introduced the possibility of ad-hoc evaluations in the form of unannounced visits and revisits (which can be announced or unannounced) particularly in the case of serious deficiencies. It foresaw thematic evaluations for the application of specific parts of the Schengen acquis across several Member States. Despite these new tools, the Mechanism was not sufficiently capable to identify quickly deficiencies, react to new circumstances, i.e. emerging problems not identified in a risk analysis, or to new legislative changes intervening in the middle of the evaluation cycle. It also failed to adjust to new types of violations. In addition, it underutilised the new tools. ·Insufficient capacity to quickly react to new circumstances One year often passes between programming an evaluation and carrying it out. Even unannounced visits, which should be the most flexible tool, must be programmed one year in advance based on a risk analysis concluded one year before the visits take place. By the time of the visit, operational circumstances might have changed and the information received in the risk assessment might be outdated. In the first five-year cycle, this was clearly the case. The 2015 migration crisis dramatically changed the circumstances under which Member States operated, making evaluations more urgent. It took, however, disproportionately long to organise an evaluation visit. The Commission cancelled one unannounced evaluation, as, by the time it was due to take place, the circumstances justifying it were no longer present. ·Insufficient capacity to adapt to new legislative developments that occurred in the middle of the cycle Pertinent legislation was also amended and brought new requirements that Member States need to implement. The Mechanism found it challenging to evaluate Member States’ compliance with the numerous new legal requirements that entered into force in the middle of the cycle and respect equal treatment among Member States. As a rule, the Mechanism evaluates Member States only once in five years in the six policy fields. If new measures enter into force after the cycle has begun, the Mechanism is unable to assess their implementation in the Member States that have already been subject to an evaluation in the policy field concerned. A more systematic use of thematic evaluations to assess new legal requirements as they entered into force would have helped address this issue. As this tool aims at verifying the application of specific parts of the Schengen acquis across several Member States, it could have offered a snapshot of Member States’ compliance with new requirements at once, identifying trends and common shortcomings in their implementation. SCH-EVAL only used thematic evaluations to this end once: the evaluation of national strategies for integrated border management. In 2016, the EBCG Regulation defined the elements for integrated border management and required Member States to establish national strategies. Given the strategic importance of ensuring all Member States have robust and harmonised strategies, in 2017 the Commission proposed to carry out a thematic evaluation of the national strategies. The Council, supporting this view, in its Conclusions of 4 and 5 June 2018, invited the Commission to carry out this thematic evaluation in 2019-2020. The exercise resulted in the evaluation in parallel of the strategic approach to border management in 25 Member States. This is an example of SCH-EVAL using available tools to adapt to legislative changes while ensuring equal treatment and draw horizontal findings relevant to the entire Schengen area.

In conclusion, the first five-year cycle focused on periodic, comprehensive and predictable evaluations per Member State and per policy field rather than based on risk analysis. In the first five-year cycle, only 29 unannounced evaluation visits, 2 thematic evaluations and 9 revisits took place. Overall, 83% of the visits were announced evaluations (see Figure 3 ). The stakeholders interviewed during the preparation of the study requested by the European Parliament noted that SCH-EVAL, being designed as an instrument to evaluate effectively the performance of an individual Member State at a specific point of time, ‘cannot keep pace with fluid policy and legal developments and evolving situation on the ground’. ·Insufficient capacity to adapt to new types of violations of fundamental rights at the external borders The Mechanism was notably unable to adjust to new type of violations that emerged since 2015 in the area of fundamental rights. For a long time, in the context of Schengen, fundamental rights protection mainly focused on data protection due to the prominent role of information exchange under the Schengen acquis. However, apart from evaluating how Member States apply data protection requirements, the Regulation recalls that ‘[d]uring the evaluation and monitoring particular attention to respect for fundamental rights in the application of the Schengen acquis should be paid’. The Schengen acquis includes a wide and diversified range of safeguards for the protection of fundamental rights. These safeguards come on top of those stemming directly from Member States’ general obligation to respect the EU Charter of Fundamental Rights while implementing EU law. Fundamental rights are mainstreamed in all policy fields. Fundamental rights is also a particular area of attention in the return field, where procedural rights and material detention conditions are core elements of the evaluation. The Mechanism has also proved effective in detecting deficiencies related to procedural rights in external border management. According to FRA’s latest report, each of the evaluations conducted between 2015 and 2019 to assess border management led to one or more fundamental rights-related recommendations, producing more than 150 recommendations in total. A large share relates to shortcomings identified at individual border-crossing points, focusing on issues arising during the border check procedure. Deficiencies include the right to privacy, lack of language skills of the border guards and unavailability of interpretation, or the lack of information giving reasons for second-line checks or for refusal of entry. However, migration flows increased and allegations of mistreatment at the external borders grew in several Member States. Since the 2015 migration crisis, the number of migrants arriving irregularly increased the pressure on front line Member States to protect the external borders. The measures adopted to ensure the security of the external borders and return migrants became stricter to meet unprecedented challenges. The protection of third country nationals’ fundamental rights turned to a reason of concern, leading to an increased reporting of violations of fundamental rights at the external borders (violence and pushbacks). The Mechanism proved less effective in detecting, reacting and addressing those claims and material breaches. Member States have an obligation to refuse entry to third-country nationals not fulfilling the Schengen Borders Code requirements and to return them to their countries of origin, while respecting the fundamental right of third-country nationals to apply for asylum and to be treated with dignity. At the same time, the principle of non-refoulement forbids returning asylum seekers to a country in which they would be in likely danger of persecution. Determine whether there are fundamental rights violations becomes very difficult. Detecting them also requires reacting as soon as information is available with an element of surprise. Several stakeholders, in particular the European Parliament and the consulted civil society organisations stressed the Mechanism’s limited capacity in this regard. Some EU bodies / agencies pointed out the limited evaluation of fundamental rights’ aspects across all policy fields (with the exception of data protection). ‘From a fundamental rights perspective, recommendations are of a more general nature (related to e.g. staff training) and the persistent fundamental rights violations that exist, such as non-refoulement, are not picked up by the [SCH-EVAL] due to the nature of the evaluation visits and the restrictive approach to considering evidence. The understanding is that the [SCH-EVAL] cannot be expected to detect fundamental rights issues (e.g. refoulement and push-backs) due to the orchestrated nature of announced visits and the fact that, for unannounced visits to external borders, the host state must be informed 24 hours in advance. In addition, it is not designed to respond and react in a speedy way to possible violations.’ In its latest report, FRA notes that ‘[r]ecommendations to Member States relating to the issue of refoulement and push-backs have so far not been adopted, despite the number of reported incidents in different Member States in recent years’. As further explained in the section 2.2, the Mechanism’s limited capacity to detect such fundamental rights violations at the external borders originates from failures in the Mechanism’s design (rigidity of programming and conditions for unannounced visits). It also derives from failures in the Mechanism’s implementation (insufficient experts with the right profile, inadequate risk analysis, insufficient use of sources of information from third parties, not sufficient involvement of the Fundamental Rights Agency in external borders evaluations). Problems Drivers Area of intervention Insufficient capacity to identify and quickly adapt and react to new circumstances, particularly violations of fundamental rights at the external borders Primary drivers ·Rigid evaluation programming (Driver 2.1) planned a year ahead the evaluation takes place (including for unannounced evaluations), with too many details and requiring a cumbersome procedure for amending it, that does not allow the Mechanism’ to quickly react to new information / circumstances, new legislative developments, or specific allegations of fundamental rights violations at the external borders. Programming Evaluation & Monitoring tools ·Inadequate criteria and conditions underlying evaluation and monitoring tools (Driver 2.2) including unannounced evaluations (which must be planned a year in advance and require a 24h notice), revisits (which become new evaluations), and thematic evaluations (which do not have a clear purpose), limiting the Mechanism capacity to react and adapt to new circumstances and legislative developments or specific allegations of fundamental rights violations at the external borders. ·Unbalanced and underused sources of information and expertise (Driver 4.1), in particular third party information, which is not systematically considered as source of information across policy fields, which undermines the capacity of the Mechanism to react to specific violations of fundamental rights at the external borders. Evaluations design / implementation – actors & synergies ·Limited coordination and synergies with other instruments (Driver 4.2) – information which is provided a year ahead the evaluations are taking place – which reduces the quality of the specific evaluation’s design and the capacity of the Mechanism to quickly adapt and react to new circumstances. ·Qualification and size of evaluation teams and unbalanced contribution of experts (Driver 4.3), with experts not always having the necessary expertise, in particular to detect violations of fundamental rights at the external borders, short-notice given to mobilise experts for specific evaluations (including unannounced evaluations) and heavenly relying on five Member States (which provide 1/3 of all experts). All this limits the capacity of the Mechanism to react to new developments and violations of fundamental rights at the external borders. Secondary drivers ·A too limited temporal scope to allow for a flexible use of available tools (Driver 1.3). In particular, it does not allow the Mechanism to use thematic evaluations (which would help adapting when legislative changes happening in the middle of the cycle while ensuring equal treatment among Member State) and organise more unannounced evaluations and revisits to react to new circumstances and emerging issues. Scope 2.1.3.Problem 3 – Slow adoption and implementation of effective remedies A third problem of the Mechanism, as shown in the five-year review, is the slow adoption and implementation of remedial actions by Member States, which derives in part from the excessive length of the evaluation and follow-up process. The data collected for the five-year review indicated that, between 2015 and 2019, it took on average about one year from the end of the evaluation visit until the adoption of the recommendations, with some cases taking up to 18 months, if not longer (see Figure 4 ). The length of the evaluation process delayed the capacity of the Mechanism to bring about concrete changes swiftly, as the adoption of the recommendations is what triggers the Member States’ obligation to start addressing the deficiencies by adopting remedial actions. This delay risks undermining the results of the whole evaluation and monitoring process. Since 2015, in ten cases, evaluation reports identified ‘serious deficiencies’. While the Regulation sets shorter time limits for monitoring such cases in the follow-up due to their urgency, in the first phase of the process the time for adopting the recommendations (425 days) was even longer than the average adoption length, undermining the benefit of shorter time limits in the follow-up. Only in one case was the evaluation report adopted swiftly, within 3 months. Data on the length of the process do not indicate any significant correlation with the number of priority recommendations either. Overall, the process’s length was not shorter, but sometimes even longer in the most problematic cases. Since SCH-EVAL started operating in 2015, Member States have made significant progress in improving the application and implementation of the Schengen acquis. Yet, for several Member States, the fulfilment of the recommendations was slow. The process was so slow that, at times, recommendations were no longer relevant or Member States had presented several progress reports before the Commission had finalised its assessment of the action plan. The length was also variable with a third of the cases taking over a year. This variability was also not linked to the case’s urgency or priority (see Box 5 ).

Source: five-year review The Court of Auditors highlighted that ‘[F]rom the time a shortcoming is detected, it could take almost two years before a [Member] State starts to report on the corrective action it has taken.’ The five-year review confirmed that on average it took over 2 years to close the action plan from its submission. A relevant number of recommendations remained open for years. At the end of the five-year cycle, the Commission has formally closed only about 25% of the procedures. The action plans of the first five-year cycle are still open even for Member States evaluated in 2015-2016 and which are undergoing evaluations for the second time in 2020. Source: five-year review All stakeholder groups (notably, the majority of Member States, the European Parliament, some EU bodies / agencies and civil society organisations) indicated the delays in the adoption and implementation of remedies as one of the main shortcomings affecting the Mechanism’s effectiveness. Problems Drivers Area of intervention Slow adoption and implementation of remedies Primary drivers ·Complex decision making evaluation process (Driver 3.1) with a two-step approach (Commission adopts reports and the Council recommendations) and with no time-limits, which makes the evaluation process too long (between 10 and 12 months between the visit and the adoption of recommendations even for cases of serious deficiencies– adoption of the recommendations being what triggers Member States obligations to address deficiencies). Decision-making & institutional balance ·Cumbersome and inadequate monitoring and follow up process (Driver 3.2) – e.g. too many steps required, too formalistic, excessive reporting obligations and with no timelines (or deadlines) for implementing recommendations –, undermining the capacity of the Mechanism to put pressure on Member State to implement remedies promptly. ·A potential disproportionate institutional balance (Driver 3.3) with excessive supervision by Member States and Council, which affects the length of the procedure, and which undermines the capacity of the Mechanism to put pressure on Member State to implement remedies promptly (the Council is involved in all reports and all recommendations even with minor findings). Secondary drivers ·Inadequate criteria underlying evaluation and monitoring tools (Driver 2.2), in particular revisits, which become new evaluations adding even more recommendations rather than focusing on exerting pressure on the Member State to implement existing ones. Evaluation & Monitoring tools 2.2.What are the problem drivers? The drivers relate to failures in the Mechanism’s design and in its implementation (see Table 4 ). Drivers are interlinked, reinforcing each other, and relate to one or more of the problems. All three problems concern directly: ·The substance of the evaluations, i.e. the scope of evaluations, meaning the legislative provisions falling under the Mechanism (the Schengen acquis), and the articulation of announced evaluations into specific policy fields (Driver 1); the way individual evaluations for the specific policy field and Member State are designed (Driver 4); ·The evaluation process i.e. the way evaluations are programmed and the types of tools used (Driver 2) and the way evaluations are carried out (Driver 4); and ·The Mechanism governance, i.e. decision-making and institutional balance (Driver 3). However, it is not possible to limit the problems entirely to these three elements substance of the evaluations (scope and evaluation design), the process (programming) and the Mechanism’s governance (decision-making). Given the multitude of drivers, the Impact Assessment groups the shortcomings around the main areas of intervention based on how SCH-EVAL is constructed: ·Scope of evaluations (too fragmented, articulated around policy fields but with gaps in its coverage and too limited temporal scope to allow for an optimal use of all tools available - Driver 1) ·Programming (too rigid and formalistic so the Mechanism cannot adapt and react - Driver 2); ·Evaluation and monitoring tools (criteria for their use not adapted to the needs / purpose, resulting in some tools being underutilised - Driver 2); ·The evaluation and the follow-up procedures and processes (decision-making too complex and bureaucratic, with no clear timelines, it takes too long for both evaluations and follow up. and heavily relies on Member States supervision - Driver 3);

·Specific evaluations design and implementation – the actors involved and synergies with other instruments (the inadequate and insufficient use of information and risk analyses and synergies with other instruments to identify what needs to be evaluated concretely for each Member State in the main policy fields, and a deficit of experts with the right profile from specific Member States and for specific policy fields - Driver 4). Problems Problem Drivers Specific Objectives Drivers Regulation design Regulation implementation Limited strategic focus and significant fragmentation preventing an overview of Schengen Driver 1: Material and temporal scope 1.1.A scope with gaps 1.2.Fragmented articulation of evaluations in policy fields not adapted to new legislative developments and needs 1.3.A too limited temporal scope to allow for a flexible use of available tools ·Exclusion of provisions relevant for the functioning of Schengen not belonging to the Schengen acquis; ·Legislative elements that lead to fragmentation (Article 4 lists the specific policy fields); ·Evaluation cycle length. ·Strict articulation per policy field (six policy fields evaluated); ·Policy fields currently evaluated not adapted to recent developments and needs (does not cover new legislative developments or EU agencies activities). Avoid gaps in the evaluation findings and increase strategic focus Insufficient capacity to identify and quickly adapt and react to new circumstances, legislative developments and trends (including specific fundamental rights violations at external borders) Driver 2: Rigid evaluation programming and inadequate criteria underlying evaluation and monitoring tools 2. 2.1.Rigid programming 2.2.Inadequate conditions and criteria underlying evaluation and monitoring tools ·Conditions and timeframe to programme evaluation visits; ·Absence of (clear) criteria for the use of unannounced and thematic evaluations, and revisits; ·Advance notice limiting the effectiveness of unannounced evaluations. ·Limited use of risk analysis and information from other monitoring tools in the organisation of the evaluations; ·Underuse of unannounced and thematic evaluations, and revisits. Rationalise the distribution of tasks and responsibilities, and simplify and accelerate processes and procedures Slow adoption and implementation of remedies Driver 3: Inadequate articulation of processes and procedures with a portential disproportionate institutional balance 3. 3.1.Complex decision-making for evaluation process 3.2.Cumbersome and inadequate process for monitoring and follow up 3.3.A potential disproportionate institutional balance ·Multi-steps decision making process; ·Absence of a clear time-line; ·Legal form of the action plans’ assessment (Commission Communications); ·Disproportionate reporting obligations on the Member States (one report every three months); ·Heavy supervision by Member States and limited involvement of the European Parliament. ·Slow processing of the files (inside Commission but also in the continuous ping-pong with the evaluated Member State to finalise the report ahead of its presentation at the Schengen Committee); ·Use of revisits as new evaluations (due to different interpretations of the legal act). Insufficient capacity to identify and quickly adapt and react to news circumstances, legislative developments and trends (including specific fundamental rights violations at external borders) Driver 4: Inadequate and insufficient participation of relevant actors in the design and implementation of evaluations / synergies with other instruments 4. 4.1.Unbalanced and underused sources of information and expertise 4.2.Limited coordination and synergies with other instruments 4.3.Qualification and size of the evaluation team and unbalanced contribution of experts ·Standardised evaluation team size; ·Short term calls for designations of experts; ·Absence of provisions on the coordination between SCH-EVAL and other mechanisms and actors; ·Legal obstacles to the exchange of information about SCH-EVAL evaluations with actors other than Member States. ·Limited use of third parties sources; ·Unbalanced Member States experts’ contribution (5 Member States provide 1/3 of experts); ·Absence of trainings in certain areas and limited trainings in fundamental rights; ·Limited exchange of information with EU bodies and agencies. Strengthen the implementation of fundamental rights safeguards under the Schengen acquis Limited strategic focus and significant fragmentation preventing an overview of Schengen Optimise the participation of MS experts and the involvement of EU bodies and agencies / synergies with other instruments 2.2.1.Driver 1 - Material and temporal scope of evaluations: the substance of evaluations and the temporal scope of the SCH-EVAL cycle 2.2.1.1.Driver 1.1. A scope with gaps and which is not adapted to new realities thereby not ensuring a fully efficient evaluation of Schengen’s functioning limiting the Mechanism’s strategic focus The scope of SCH-EVAL falls at times short in covering all elements needed to ensure an efficient and effective implementation of the Schengen acquis. Article 4 sets that ‘evaluations may cover all aspects of the Schengen acquis, including their effective and efficient application by Member States’. The most notable gap regards the impossibility of addressing effectively issues linked to the implementation of provisions that do not belong to the Schengen acquis, even if this may significantly affect the functioning of Schengen. Police cooperation offers striking examples. The Prüm Decision, a keystone of cross-border cooperation, does not qualify as development of the Schengen acquis, which precludes its evaluation under SCH-EVAL. Nonetheless, the correct implementation of the Prüm Decision may have a strong influence on the information exchange under Schengen (see Box 6 ), which is a key element for its well-functioning. The evaluation team cannot directly evaluate whether a Member State is compliant or non-compliant with the Prüm Decision. Any issues identified – even when directly affecting Schengen – may only lead to a finding of need for improvement. This restricts the means to require remedies from the Member State. A terrorist attack happens in Country X. The terrorist manages to escape but leaves behind a DNA sample. Country X forensic service uploads the sample to the national system after which the automated comparison of DNA profiles through Prüm is carried out. A match occurs in Country Y. However, since Country Y’s forensic service did not properly adopt the evaluation procedure as foreseen in the Prüm Decision, the evaluation does not take place, preventing the identification of the terrorist. The police cooperation evaluation under the Regulation, which took place in Country Y the previous year, had not evaluated issues with the Prüm Decision implementation since it is not considered part of the Schengen acquis. Article 4’s specific reference to ‘by Member States’ also created a situation where evaluations did not cover new relevant activities of EU agencies properly, even though they were traditionally Member States’ responsibility. This created an asymmetry as the Mechanism does cover the activities that are implemented by private entities on behalf of a Member State (e.g. external service providers in the field of visa policy or airlines under external border management). This limitation applies to Frontex, which deploys operational staff at the external borders, carries out return operations and can be fully responsible temporarily on behalf of the Member State concerned for the surveillance of segments of the external border. It also applies to Europol as it carries out second-line security checks. It may also apply in the future to additional Europol activities (related to Schengen Information System). With these limitations, there is the risk of gaps and the Mechanism cannot provide the overall picture for example of external borders management, particularly as Member States under pressure rely increasingly on EU agencies and private companies to support the implementation of the Schengen acquis. Member States, the Council and the European Parliament stressed this limitation, pointing out the opportunity for the reform to address it. The hotspot concept established in the 2016 by the Frontex (ECBG) Regulation entails an integrated migration management process comprising identification, fingerprinting, registration, screening and debriefing of migrants at the border segments under heavy migratory pressure. The 2019 review of Frontex has increased EU agencies’ involvement in external border management. EU agencies already provide significant support on the ground by working directly together with and under the supervision of national authorities. For example, Frontex fingerprints, identifies and registers migrants, and carries out debriefing activities. Europol carries out security screening and second-line checks. This type of activities are covered in the evaluation of a Member State. If SCH-EVAL cannot verify how the agencies are helping country X in the surveillance of its external borders or to carry out border control, the overview on the functioning of the external borders in country X would be incomplete. 2.2.1.2.Driver 1.2. A fragmented articulation of evaluations into individual policy fields not adapted to new legislative developments and needs, and limiting the capacity of the Mechanism to provide an overview of a Member State performance overall and of Schengen’s functioning, thereby limiting the Mechanism’s strategic focus Article 4 of the Regulation leaves a priori wide flexibility in defining the scope of the evaluations as evaluations may cover all aspects of the Schengen acquis. However, as Article 4 specifically lists external borders, visa policy, the Schengen Information System, data protection and police cooperation, it creates an expectation that these are the policy fields to be evaluated. As a result, the Mechanism evaluates Member States in the six policy fields (as indicated in Figure 6) individually within a two-month period. Evaluations in six policy fields require six different evaluation reports and six different sets of recommendations for each Member State, creating a significant fragmentation. As the 2020 study put it, ‘[a] single evaluation on specific Schengen policy area(s) has the clear disadvantage that it does not show the overall performance of a Member State on managing Schengen’. Apart from limiting the overview on single Member States, the current functioning of the Mechanism risks restricting significantly the possibility to draw conclusions on the overall state of Schengen, considering that, between 2015 and 2019, the Commission adopted around 200 evaluation reports (35-40 per year). During the consultation, the European Parliament confirmed this risk, as it stressed the need to dedicate more time to horizontal findings and to have a better overview of the Schengen area as a whole. Several Member States also indicated the limited coherence among the various policy fields and evaluation reports with a couple of Member States requesting a single report per Member State. In addition, there have been significant developments in the Schengen acquis in recent years that make these traditional policy fields inadequate. For example, a new series of IT systems will become operational in 2023 and complement the Schengen Information System. As the security acquis develops, evaluations need to take into account additional elements, particularly in police cooperation. Various policy areas, given legislative developments, are becoming more and more interlinked and interdependent (for example SIS and return or SIS and police cooperation) or implementing authorities have extended powers (for example the supervision system in data protection). During the consultation activities, several stakeholders’ categories broadly supported the possibility for SCH-EVAL to cover new IT tools . This was also indicated in the 2021 Council conclusions . 2.2.1.1.Driver 1.3. A too limited temporal scope to allow for a flexible use of available tools limiting the Mechanism’s strategic focus and its capacity to react to new circumstances Currently, the Mechanism works according to a five-year cycle. Given the large number of Member States, it is only possible to carry out the programmed ‘periodic’ evaluations (around 35-40 in a year). There are almost no resources for thematic evaluations to help draw horizontal conclusions across policy fields or across countries subject to similar challenges. There is also little space for unannounced evaluations or revisits, by which the Commission could monitor activities and react to emerging issues (e.g. allegations of mistreatment at the external borders).

2.2.2.Driver 2 – Rigid evaluation programming and inadequate criteria underlying evaluation and monitoring tools The Regulation includes a comprehensive set of evaluation and monitoring tools, but the procedural and material conditions for their use lead to an underutilisation of flexible tools such as unannounced and thematic evaluations, and revisits. This driver undermines the capacity of the Mechanism to quickly react and adapt to new circumstances (problem 2). It also undermines its strategic focus (problem 1) and its capacity to put pressure on Member States to accelerate the implementation of remedies (problem 3). 2.2.2.1.Driver 2.1 A rigid programming not providing the Mechanism with capacity to quickly adapt and react to new circumstances The Regulation introduced a multiannual programming system over a five-year cycle that defines the Member States’ order for evaluation in the pre-defined set of policy fields (largely those listed in Article 4 of the Regulation). Article 6 requires the Commission to adopt by 31 October each year an annual programme with all evaluations to occur in the following year. This procedure concerns equally announced (‘periodic’) evaluations, thematic evaluations and unannounced evaluations. It includes the Member States to be evaluated, but also whether evaluations will be carried out on a questionnaire only or through on-site visits and the specific sites that the evaluation team should visit as a minimum. The Commission should base the programming on the information collected from the replies provided by Member States to the standard questionnaire and risk analyses prepared already in the summer the year before (August n-1) by Frontex and other EU bodies and agencies. Any change to the evaluation programme requires a formal amendment through a cumbersome procedure that needs the Schengen Committee’s positive opinion. Although it creates predictability and helps Member States to prepare, this rigid long-term planning is difficult to reconcile with the rapidly changing threat landscape. For instance, it might limit the scope of the evaluations, keeping out new legislative developments that require adjusting the articulation of policy fields. It might exclude from the evaluations new emerging issues, which are not included in the risk analysis, and that might need adjustments to the evaluations’ programmes, i.e. visiting alternatives sites. As a result, the annual programme needs amendments regularly with the additional administrative burden. In 2020, it was particularly difficult to cope with the uncertainty surrounding the Covid-19 pandemic. By the time the Commission had amended the annual programme, new changes were already needed. In 2020, the evaluation of Germany in the field of visa policy was to take place in the German consulate in Teheran. As the political situation became unstable in January 2020, the Commission in agreement with Germany identified an alternative location. This alternative required an amendment of the annual evaluation programme (proposal of the Commission to be presented to the Schengen Committee two weeks in advance after which it can initiate the adoption process within the Commission). The amendment was adopted in March, when the Covid-19 crisis began, which required new amendments to the annual programme. This rigid procedure also applies to unannounced evaluations. The Commission must plan them one year in advance based on risks assessments provided in the year before the evaluation, making it impossible to respond to new unforeseen circumstances, and defeating their purpose. The rigidity of the programming for unannounced evaluations undermines the possibility for the Mechanism to react quickly to allegations of serious breaches (i.e. Member States breaching relevant legislation) and of fundamental rights’ violations by organising visits swiftly as soon as the allegations emerge. Although the Mechanism is not an investigate instrument designed specifically to spot the practice of push-backs, the current set-up limits the efforts of SCH-EVAL to respond to this challenge emerging increasingly at the external borders. 2.2.2.2.Driver 2.2. Inadequate criteria and conditions to use the various evaluations and monitoring tools limiting the Mechanism capacity to react and adapt to new circumstances and legislative developments, and reducing its strategic focus and capacity to quickly implement remedies Contrary to the rigid programming, the Regulation is quite flexible regarding the criteria and conditions to use the various evaluations and monitoring tools. This would seem like an advantage at first sight. However, this flexibility has created confusion and underutilisation of the new tools available. An EU agency explicitly remarked the need to ‘clarify the scope, aim and main differences between thematic evaluations, announced and unannounced visits.’ Thematic evaluations addressing specific issues in several Member States aim to contribute to strengthening the strategic focus of the Mechanism. However, the potential of this type of evaluations was not sufficiently exploited during the first five-year cycle in part because of the insufficient clarity and general / vague character of the rules for carrying out these evaluations. The Regulation simply specifies that thematic evaluations have to be programmed and may cover the application of specific parts of the Schengen acquis across several Member States. There is no clarity as to what can trigger the need for a thematic evaluation or what its scope should be. The lack of definition of the conditions and scope for thematic evaluations contributed to only two thematic evaluations carried out with significantly varying topics and outcomes. One was extremely localised looking at visa cooperation between Member State consulates in Ankara (Turkey) and New Delhi (India). The second covered a major horizontal theme across all Member States (national strategies for integrated border management). The Commission included the first in a regular evaluation, while the other was proposed by the Commission, supported by the Council conclusions, and subsequently programmed. One did not lead to any recommendations; the other led to far-reaching horizontal recommendations addressed to all Member States. Similarly, for revisits, the Regulation only specifies that they can be considered depending on the degree of seriousness of deficiencies to verify the action plan’s implementation. Revisits help to monitor progress made and to put pressure on Member States to implement quickly the remedies provided for in the recommendations. Although a monitoring tool under Article 16(5) of the Regulation, revisits in practice became a re-evaluation requiring an evaluation report and triggering new Council recommendations and action plans. Ultimately, the administrative burden linked to those procedures (see section 2.2.3.2) limited the use of this tool. For unannounced evaluations, the Regulation explains at length how to carry out the evaluation visit. However, it does not set any criteria for the situation that would trigger an unannounced evaluation. Recital 12 states that it is a tool conceived ‘to supplement announced on-site visits, in particular with regard to border controls and visas.’ Its purpose is not clear (random ‘health’ check or detection of serious breaches?) particularly as the Commission must inform the Member State 24 hours before an unannounced visit occurs, which many stakeholders believe may defeat its purpose. The European Parliament and consulted civil society organisations particularly criticised the 24-hour notice. 2.2.3.Driver 3 – Inadequate articulation of processes and procedures with a potential disproportionate institutional balance The cumbersome decision-making processes and procedures in place led to the slow adoption and implementation of remedies by Member States (problem 3). The Council’s involvement in all the different procedures limited the Council’s capacity to exert the aimed-for peer pressure to accelerate the implementation of remedies. This Impact Assessment focuses on those aspects that emerged as the most problematic during the consultation: the decision-making process for adopting evaluation reports and recommendations, and the monitoring and follow-up process. In both cases, the absence of clear time limits exacerbates inherent issues. 2.2.3.1.Driver 3.1 – Complex decision-making for the evaluation process affecting the length of the procedure Under Articles 14 and 15, the decision-making process includes two distinct and subsequent steps involving the Commission and Member State representatives (in the Schengen Committee and in the Council): ·The evaluation team prepares the draft evaluation report within six weeks from the visit. The evaluated Member State can provide comments within two weeks from receiving the draft report. A drafting meeting between the team and the evaluated Member State, at the Member State’s request, may occur after the submission of the comments and before the Commission presents the report in the Schengen Committee; ·The Commission adopts the final evaluation report by means of an implementing decision after the positive opinion of the Schengen Committee (see Box 9 ); and

·The Council adopts the recommendations after discussion in the SCH-EVAL Working Party, based on a Commission’s proposal made after the adoption of the evaluation report (the usual practice being that the Commission adopts the report and the Commission proposal for a Council recommendation at the same time). In the evaluation phase between the evaluation visit and the adoption of recommendations, the Regulation sets time limits only at the beginning of the procedure for the transmission of the draft report to the Member State evaluated (six weeks) and for the Member State’s comments on the draft report (two weeks). There are no time limits for the drafting meeting, the transmission of the report to the Schengen Committee, or for adoption and subsequent steps. The absence of time limits increases the risks of bottlenecks and of delays in the procedure. The Regulation does not foresee any specific accelerated procedure in the case of serious deficiencies, which arguably requires the most rapid action. Each year, the Commission and the Council adopt about 40 evaluation reports and recommendations. The administrative burden is disproportionate to the human resources available which, combined with a lack of clear timelines, have had a major impact on the evaluation process’s length. It took on average about one year from the evaluation visit until the recommendation’s adoption: 9.5 months (282 days) to adopt the evaluation report and 2.5 months (81 days) to adopt the recommendations. The excessive length of the process limits the capacity of the Mechanism to keep up with and reflect evolving situations on the ground as the information in the reports might already be outdated and the recommendations might have become obsolete by the time of their adoption. The adoption of implementing decisions by the Commission is subject to the following procedural requirements: ·Article 21 of the Regulation in combination with Articles 3 and 5 of Regulation (EU) No 182/2011 submits the adoption of the evaluation report to the Comitology examination procedure, hence to the positive vote of representatives of the Member States by qualified majority. The draft evaluation report has to be transmitted 14 days before the vote takes place. In duly justified cases, the chair may shorten the 14 days-time limit or obtain the committee’s opinion by written procedure under simplified conditions. ·Article 21 of the Commission Rules of Procedure requires the consultation of other departments associated or concerned as well as of the Legal Service on the draft evaluation report. ·Article 3 of Regulation No 1 requires that the evaluation report be translated into the evaluated Member State’s language. ·Article 17 of the Regulation requires that the evaluation report be treated as classified as EU RESTRICTED/RESTREINT UE which imposes technical restrictions on their handling (also for translations) and transmission to comply with applicable security rules. 2.2.3.2.Driver 3.2 – Cumbersome and inadequate monitoring and follow-up process undermining the capacity of the Mechanism to put pressure on Member State to implement remedies promptly Under Articles 16, the follow-up procedure includes notably the following main steps: ·The Member State presents its action plan to remedy the deficiencies identified in the evaluation report to the Commission and the Council (within three months from the recommendations) and the Commission further transmits it to the European Parliament. A longer (six months) or shorter (one month) time limit applies if the evaluation reports do not include any non-compliant findings or include serious deficiencies, respectively; ·The assessment of the action plan takes the form of a Commission Communication, adopted after consulting the evaluation team as appropriate, within one month from the submission of the action plan. The Commission has had difficulties in providing a timely assessment of the action plan due to the excessive formalism required for this step. In 2019 and 2020, the Commission adopted on average over 20 Communications; ·The Member State concerned submits to the Commission progress reports every 3 months, even if the nature of the recommendations (requiring procurement of new equipment or introducing legislative changes) makes it is difficult to report any progress; ·A revisit can take place if required by the seriousness of the deficiencies. This revisit leads to a new report, which includes new findings resulting in new recommendations and a new action plan that the Commission should assess, as per the second bullet point, and it leads to the submission of the related progress reports. So, a Member State may end up having three sets of Council recommendations and action plans in the same policy field if, for example, it has been subject to a revisit and an unannounced visit in addition to the regularly programmed visit; and ·The Commission should regularly inform the European Parliament and the Council about the implementation of the action plans. After the adoption of the recommendations, in the follow-up, the Regulation sets time limits for the presentation of the action plan by the Member State and for its assessment by the Commission. Member States are also obliged to report to the Commission every three months. No other time limits are set for the fulfilment of the action plan. Revisits added an administrative burden, including additional recommendations, rather than serving as a proper monitoring tool. Moreover, the Commission evaluation report and the Council recommendations are not legally binding instruments. As a result, if a Member State decides not to implement a recommendation or is seriously neglecting the implementation of the action plan or delaying it, the Commission has little options to make the Member State comply. In principle, peers should put pressure on the Member State concerned. In practice, they have rarely done so, as there has been little Council’s involvement and discussion in the Council about Member States’ follow-up. 2.2.3.3.Driver 3.3 – A potential disproportionate institutional balance undermining the capacity of the Mechanism to put pressure on Member States to implement remedies promptly and its strategic focus According to the current institutional set up, the Commission adopts the report, the Council adopts recommendations, and the Commission monitors the follow up while informing both the Council and the European Parliament. Arguably, the Regulation created this two-step approach in favour of the Member States and the Council to ensure political discussion and peer-pressure at Council level (see Recital 11 in section 2.1.1), and to a lesser extent in the Parliament. The five-year review of the functioning of SCH-EVAL concluded that this set-up did not serve its purpose while adding to the heavy and lengthy procedure. All evaluation procedures entail heavy involvement by Member States (and the Council). Examples include the drafting of the report by the evaluation team (composed of Member State experts in its majority), all report’s adoption requiring the positive opinion of Member States in the Schengen Committee, and the adoption of all recommendations by the Council. The follow-up, that according to the Regulation is the responsibility of the Commission, also increased the Council’s workload as revisits and unannounced visits become new re-evaluations requiring reports and recommendations. Member States can comment on action plans, but they hardly do. However, there was little proper involvement of the Council in the follow up of serious cases or where a Member State was not properly implementing the action plan. The heavy workload in the Council and the very detailed and localised nature of recommendations prevented any real discussion limiting the Council’s power to exert the required peer-pressure and have general discussions on the state of Schengen. On the other hand, the European Parliament has only limited formal involvement reducing its capacity to pressure Member States to implement recommendations. The Council recommendations are transmitted to the European Parliament and the national Parliaments and are published. The evaluation report, which is a classified document, is shared with the European Parliament, while, under Article 19, the Commission merely informs the national parliaments of the evaluation’s content and results. To strengthen accountability vis-à-vis the Council and the European Parliament, the Commission must regularly inform them about the action plans’ implementation. In addition, the Commission shall present a comprehensive yearly report to the European Parliament and the Council on the evaluations carried out and the state of play regarding remedial action (Article 22). 2.2.4.Driver 4 – Inadequate and insufficient participation of relevant actors in the design and implementation of evaluations / synergies with other instruments One of the drivers for the lack of strategic focus (problem 1) and its limited capacity to detect and react to new circumstances (problem 2) is the way individual evaluations are designed and implemented. This driver includes the inadequate and insufficient use of information and risk analyses and synergies with other instruments to identify what needs to be evaluated concretely for each Member State in the main policy fields, and a deficit of experts with the right profile from specific Member State and for specific policy fields. 2.2.4.1.Driver 4.1 – Unbalanced and underused sources of information and expertise

The Schengen evaluation guide acknowledges that ‘[t]he analysis of data collected should be based on facts and arguments from several sources and analysed with several methods, to avoid a one-sided approach and biased results.’ The Regulation mentions only two sources of information explicitly: the Member States’ replies to a standard questionnaire and the risk analyses provided by EU bodies and agencies under Article 7 and 8 of the Regulation. Article 7 imposes an obligation on Frontex to provide two risk analyses by 31 August of each year. FRA and Europol also provide regularly risk analyses upon request by the Commission. Eu-LISA shares statistical reports on the functioning of SIS and VIS. Certain stakeholders, as EU bodies / agencies, explained that the scope and timing of the information is often inadequate and stressed the importance of pre-visit information, since, by the time the visit takes place, the risk analyses’ information is already outdated in most cases. The concept of risk analysis is also very restrictive and does not cover all information available to the EU bodies and agencies to develop situational awareness. The Regulation does not prevent the evaluation team from relying on different sources. However, the fact that the Regulation does not explicitly mention the role of third parties has led to uneven practices across policy fields. Some policy fields strictly rely on the information covered expressly in the Regulation and only reflect what the team witnessed during the visit. Other policy fields, such as return (see Box 10 ), rely widely on third parties, as per the evaluation guide. Neglecting the factual importance of third parties as a source of information may impact the quality of evaluations and create distortion between interlinked policy fields. For example, it undermines the capacity of the Mechanism to react to specific violations of fundamental rights at the external borders. As also noted in the 2020 study by the European Parliament, ‘[e]vidence of push-backs and collective expulsions in violation of the principle of non-refoulement may be well documented but will never be witnessed during on-site visits, whether announced or unannounced’. During the consultation, the European Parliament criticised the limited scope of evidence used in evaluations, particularly external sources of information, i.e. information from NGOs or national and international monitoring bodies. The consulted civil society organisations, some EU bodies and agencies, and some Member States also stressed the opportunity to expand the scope of the information sources. In the field of return, third parties play a role in two ways: their reports are used, directly or indirectly - as FRA takes into account NGOs’ and International Organisations’ reports in the risk analysis provided to the Commission - to set the annual programme. During the evaluation visit, when relevant and appropriate, the evaluation team meets with third parties, notably the Ombudsman (usually one of the institutions with the mandate to monitor forced returns) and the International Organization for Migration (usually for Assisted Voluntary Return and Reintegration) as well as NGOs dealing with return counselling, alternatives to detention or in charge of monitoring forced-returns. 2.2.4.2.Driver 4.2 – Limited coordination and synergies with other instruments Both at the EU and national levels, several instruments complement SCH-EVAL in ensuring a better implementation of the Schengen acquis. The Vulnerability Assessment by Frontex is the most notable example. Since 2016, Frontex assesses the preparedness of the Member States to face challenges at their external borders, based on yearly evaluations. SCH-EVAL’s more extensive five-yearly evaluations rather focuses on structural aspects. Relevant examples, in other policy fields are EDPS audit (data protection), the European Multidisciplinary Platform Against Criminal Threats - EMPACT (police cooperation), or the fundamental rights officer at Frontex (external borders). National quality control mechanisms (encouraged under the EBCG Regulation) could become similarly important in the future. The provisions of Article 17 of the Regulation, on the sensitivity of information, impose the classification of the evaluation reports and confidentiality on other actors when participating in SCH-EVAL, making coordination even more difficult. This situation creates an asymmetry that, as stressed by the 2020 study by the European Parliament, does not effectively prevent the risk of duplication and incoherent recommendations to Member States with the Vulnerability Assessment. The same risk is likely to materialise also for other instruments developed in the future, undermining the potential positive effects of SCH-EVAL. 2.2.4.3.Driver 4.3 – Qualification and size of the evaluation team and unbalanced contribution of experts In line with the principle of peer review, and to ensure adequate participation of qualified experts, there is a general obligation for all Member States under the Regulation (Articles 3 and 10) to nominate experts. Member States and the Commission, in cooperation with relevant EU bodies and agencies, shall also provide appropriate training, including on respect for fundamental rights. The experts’ selection for the evaluation starts with an ad-hoc call by the Commission to designate experts for each evaluation at the latest three months before the evaluation visit takes place. The evaluation team includes all experts designated, regardless of the needs of the evaluation, with the only limitation that the maximum number of Member State experts in the team is eight. If Member States’ designations exceed eight, the Commission, after consulting the Member States concerned, choses the eight members of the team based on geographical balance and the experts’ competences. EU bodies and agencies experts also participate regularly in the evaluations as observers, upon Commission invitation (Article 10(5)). During the first five-year cycle, EU agencies provided trainings in all policy fields, except for common visa policy and data protection. The five-year review found that contribution of experts by Member States did not always match the needs of the individual evaluations in terms of the number or qualifications of the experts. According to the data collected for the five-year review, all Member States contributed experts to the Schengen evaluations, however in very different proportions. The burden was heavily unbalanced among Member States with one-third of experts provided by five Member States (see Figure 7 ). The contribution also differed according to the policy fields. In particular, common visa policy and data protection experienced recurrent shortages of experts and at times, the evaluation team included only four or five Member State experts. For announced evaluations, the teams generally consisted of the maximum number of eight experts. Yet, on several occasions the time limit for the designation of expert was extended (occasionally even several times) due to a limited number of designations received. Overall, 12 Member States did not contribute experts to at least one policy field, with five Member States designating experts only in three policy fields or less. In the fields of return and visa, seven Member States never designated any experts. All this implied a disproportionate amount of work for the team members and created a significant burden on the Member States that comply with the Regulation. There is no specific obligation for each individual Member State to designate experts for evaluations. If Member States do not designate enough experts, or a given Member State does not designate any expert, the Commission cannot force Member States to do so. The Commission will renew the call for designations until a sufficient number of experts is ensured. As a result, the current rules could not guarantee the balanced contribution of experts by all Member States. In 2020, with the pandemic outbreak, it became more challenging to put together the most appropriate teams and gather an adequate number of experts even in policy fields like Schengen Information System or return where under normal circumstances there is a sufficient number of experts. At the same time, during the consultation, some Member States complained that having eight experts might be excessive, making the evaluation more difficult in certain circumstances. The qualification of experts also represented an issue in the first five-year cycle. Member States confirmed that the appropriate profile of the experts is key. In particular, fundamental rights violations, especially the ones at the external borders, might be hard to detect in case of insufficient experts with the right profile. To ensure the identification of such violations, the European Parliament pointed out the need of including fundamental rights experts in the evaluation teams. During the consultation, Member States mentioned three main causes for the occasional unavailability of experts: lack of training in certain policy fields (notably common visa policy and data protection), short notice (three months) given by the Commission, and perceived lack of incentives (such as financial compensation) for the experts. The heavy workload of the evaluations and the difficulty reconciling it with other commitments discourages participation.

Source: five-year review 2.3.How will the problem evolve? The threat landscape and developments of the Schengen acquis risk amplifying the consequences of these drivers. As a reaction to increasing challenges faced since 2015 (migratory pressure, terrorist attacks, and Covid-19), the EU has undertaken several initiatives to make Schengen more resilient such as, for instance, the proposal for an amendment of the Schengen Borders Code or for a Regulation introducing a screening of third-country nationals at the external border. Reforms are not only improvements of existing tools but brought in several new elements. In addition to SIS and VIS, Schengen will by the end of 2023 count on a new IT architecture with new systems (ETIAS, EES) at the external borders and interoperability of information systems reinforcing the relation between pertinent databases (involving also non-Schengen databases such as ECRIS-TCN and EURODAC) (see Box 11 ). This will provide comprehensive information on external border management and visa processing at all stages. The adoption of an EU police cooperation code is planned under the EU Security Union Strategy. The role of EU agencies involved in the implementation of the Schengen acquis has gained further importance. In 2016, Frontex received executive powers to support Member States in the management of the external border. In 2019, the creation of the European Border and Coast Guard, including the set-up of a 10 000 standing corps by 2027, has been a key step towards genuinely European protection of the external borders and the establishment of a European return system. Further reforms under negotiation aim to extend the mandate of Europol and EASO. Four Member States (Bulgaria, Cyprus, Croatia and Romania) are also waiting to be fully integrated in the area without controls at the internal borders. Therefore, the number of Member States to be evaluated on a periodic basis is expected to increase considerably in the future. SCH-EVAL’s current limitations risk becoming even more critical. Today, SCH-EVAL is not fully effective in addressing serious situations and mainly performs its basic tasks. Without any action at the EU level to increase its effectiveness, the identified problems may only worsen, leading to the Mechanism’s political and practical irrelevance for Schengen governance. The Entry/Exit System (EES) is a new automated IT system for registering travellers from third-countries, both short-stay visa holders and visa-exempt travellers, each time they cross an EU external border and will replace the current system of manual stamping of passports. ETIAS is also a new largely automated IT system created to identify security, irregular migration or high epidemic risks posed by visa-exempt visitors travelling to the Member States, whilst at the same time it facilitates crossing borders for the vast majority of travellers who do not pose such risks. Non-EU nationals who do not need a visa to travel to Schengen will have to apply for a travel authorisation through the ETIAS system prior to their trip. EES and ETIAS are to be operational in 2022. The Interoperability Regulations establish a framework for the interoperability of the six central large-scale IT systems in the field of borders, security and migration, namely EES, VIS, ETIAS, Eurodac, SIS, and ECRIS-TCN. It will be operational from 2023. If one Member State fails, the whole architecture will suffer. Speed to detect and fix deficiencies will be crucial. The current Mechanism with its cumbersome and lengthy procedures is not suited for a rapid response in case deficiencies are identified, including corrective actions in real-time. 3.Why should the EU act? 3.1.Legal basis The Proposal is to be based on Article 70 TFEU, which is also the legal base of Regulation No. (EU) 1053/2013, which it is amending. Article 70 TFEU empowers the Council to adopt, on a proposal from the Commission, measures laying down the arrangements, whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in Title V by Member States’ authorities, in particular in order to facilitate full application of the principle of mutual recognition. A statement from the European Parliament, the Council and the Commission, accompanying the Regulation, clarifies that any future proposal to amend the Regulation will be submitted to the consultation of the European Parliament in order to take into consideration its opinion, to the fullest extent possible, before the adoption of a final text. Accordingly, the Commission consulted the European Parliament on the main elements of the proposal before its adoption on 12 May. 3.2.Subsidiarity: Necessity of EU action A specific evaluation and monitoring mechanism to verify the correct application and implementation of the Schengen acquis is necessary given the need to ensure high uniform standards in its application in practice and to maintain a high level of mutual trust between tho