Proposal for a Council Regulation on the establishment of an evaluation mechanism to verify the application of the Schengen acquis
Date: 2009-03-04
Institutions: Council of the European Union
Subjects: Schengen Agreement, application of EU law, committee (EU), standing committee

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 4.3.2009 
COM(2009)102 final 

2009/0033 (CNS) 

Proposal for a  

COUNCIL REGULATION 

on the establishment of an evaluation mechanism to verify the application of the 
Schengen acquis  

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objective of the proposal 

The  main  objective  of  the  proposed  Regulation  is  to  establish  a  legal  framework  for 
evaluating the correct application of those elements of the Schengen acquis that form part of 
Community law. It goes together with the proposal for a Decision on the establishment of an 
evaluation  mechanism  to  monitor  the  application  of  those  elements  of  the  Schengen  acquis 
that  are  part  of  EU  law.  This  double  evaluation  mechanism  is  designed  to  maintain  mutual 
trust  between  Member  States  in  their  capacity  to  effectively  and  efficiently  apply  the 
accompanying measures allowing the creation of an area without internal borders.  

The overall objectives of the new mechanism should be to ensure transparent, effective and 
consistent  implementation  of  the  Schengen  acquis,  also  reflecting  the  changes  in  the  legal 
situation after the integration of the Schengen acquis within the framework of the European 
Union. 

•  General context 

The area without internal borders as set up by the Schengen acquis — the Schengen area —
was  developed  within  an  intergovernmental  framework  in  the  late  80s and  beginning  of  the 
90s  by  Member  States  willing  to  abolish  internal  border  controls  and  implement 
accompanying  measures  to  this  end,  such  as  common  rules  on  external  border  controls,  a 
common  visa  policy,  police  and  judicial  cooperation  and  the  establishment  of  the  Schengen 
Information  System  (SIS).  It  was  not  possible  to  abolish  internal  border  controls  within  the 
Community framework, as the Member States could not agree on the need for their abolition 
in  order  to  achieve  the  objective  of  the  free  movement  of  persons  (Article  14  EC  Treaty). 
Over  the  years,  however,  all  Member  States  at  that  time  except  the  United  Kingdom  and 
Ireland have joined the Schengen area.  

The Schengen acquis became part of the European Union framework with the entry into force 
of the Amsterdam Treaty in 19991.  

The Schengen area is based on full mutual trust between the Member States in their capacity 
to  fully  implement  the  accompanying  measures  allowing  the  lifting  of  internal  border 
controls: e.g. checks at external borders are carried out by Member States not only to protect 
their own interests but also on behalf of all other Member States to which people could travel 
once having crossed the external borders of the Schengen area.  

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To this end, it was necessary to define the Schengen acquis (Council Decision 1999/435/EC, OJ L 176 
of  10.7.1999,  p.  1)  and  to  determine  the  legal  basis  in  the  Treaties  for  each  of  the  provisions  or 
decisions constituting this acquis (Council Decision 1999/436/EC, OJ L 176 of 10.7.1999, p. 17). Each 
provision of the acquis received a legal basis under the first or the third pillar. Those provisions of the 
Schengen  acquis  for  which  no  single  legal  basis  could  be  determined  (i.e.  the  SIS  provisions)  were 
considered to be part of the third pillar. All modifications to this acquis must have an appropriate legal 
basis under the Treaties. 

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In order to gain and maintain this mutual trust, the Schengen Member States set up a Standing 
Committee in 1998. Its mandate is set out in a decision of the Schengen Executive Committee 
(SCH/Com-ex (98) 26 def) and consists of two separate tasks:  

1. 

2. 

Verification  whether  all  preconditions  for  application  of  the  Schengen  acquis  (i.e. 
lifting of border controls) have been met by Member States wanting to join Schengen 
(‘putting into effect/application’); 

Verification  that  the  Schengen  acquis  is  being  correctly  applied  by  the  Member 
States implementing the acquis (‘implementation"). 

Schengen  thus  makes  a  distinction  between  ‘putting  into  effect’  and  ‘implementation’. 
Therefore, first of all, checks have to be made to determine whether the conditions for mutual 
trust are met before the acquis can be put into effect. Secondly, mutual trust then needs to be 
maintained  by  checking  the  correct  implementation  of  the  acquis.  In  the  intergovernmental 
phase of Schengen, specific provisions for verifying correct implementation were needed. 

The  Schengen  acquis  was  integrated  within  the  European  Union  framework  without  being 
renegotiated.  The  Standing  Committee  and  its  1998  mandate  were  thus  taken  over  without 
change, except that the Standing Committee became the Schengen Evaluation Working Group 
(SCH-EVAL) in the Council. It came under Article 66 EC Treaty and Articles 30 and 31 EU 
Treaty, as the Schengen acquis covers both first and third pillar measures. 

Given  its  intergovernmental  basis,  Schengen  evaluation  has  been  and  still  is  entirely  in  the 
hands  of  the  Member  States,  with  the  Commission  participating  as  an  observer.  This 
continues to be a logical approach for the first part of the mandate, as there is nothing similar 
in the EU/Justice and Home Affairs acquis with a distinction between ‘putting into effect’ and 
‘implementation’.  Moreover,  it  should  be  noted  that  the  decision-making  procedure  for  the 
lifting of internal border controls and the full application of the Schengen acquis was, for the 
enlargements of 2004 and 2007, laid down in the accession treaties, thus in primary law. The 
Acts  of  Accession  provided  for  a  Council  Decision  after  consultation  of  the  European 
Parliament. There is no right of initiative foreseen for the Commission. 

However, the approach is less logical for the second part of the mandate, especially as far as 
first pillar matters are concerned. Hence, already at the time of integration of the acquis, the 
Commission issued a declaration stating that it ‘considers that the integration into the Union 
framework of the Decision of the Executive Committee setting up a Schengen Implementing 
Convention  Standing  Committee  (SCH/Com-ex  (98)  26  Def  of  16.9.1998)  does  not  in  any 
way affect the powers devolving on it from the Treaties and in particular its responsibility as 
guardian of the Treaties’. 

As  evaluation  before  putting  into  effect  is  fundamental  for  Member  States  in  order  to  gain 
mutual  trust,  it  seems  reasonable  for  this  to  remain  the  responsibility  of  Member  States. 
Moreover,  where  a  Member  State  does  not  follow  the  recommendations  made,  no  decision 
can be taken to lift internal border controls, which is thus an effective ‘incentive’ for full and 
correct  application  of  the  acquis.  The  Commission  will  continue  to  participate  fully  as  an 
observer in these evaluations.  

•  The need to improve evaluation of the correct application of the acquis 

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The Hague Programme of 2004 invites the Commission ‘to submit, as soon as the abolition of 
controls  at  internal  borders  has  been  completed,  a  proposal  to  supplement  the  existing 
Schengen evaluation mechanism with a supervisory mechanism, ensuring full involvement of 
Member States experts, and including unannounced inspections’.  

Since 1999, there have been several discussions between Member States and the Commission 
on  making  the  Schengen  evaluation  mechanism  more  efficient,  in  particular  concerning  the 
second part of the mandate, namely verification of the correct application of the acquis after 
the lifting of internal border controls. The following main weaknesses have been identified: 

(1) 

(2) 

(3) 

(4) 

The  current  methodology  for  the  evaluation  mechanism  is  inadequate.  The  rules  on 
consistency  and  frequency  of  evaluations  are  not  clear.  There  is  no  practice  of 
conducting unannounced on-site visits. 

There is a need to develop a methodology for priority-setting based on risk analysis. 

A  consistently  high  quality  of  expertise  during  the  evaluation  exercise  needs  to  be 
ensured. The experts participating in the evaluation should possess an adequate level 
of  legal  knowledge  and  practical  experience.  Sending  an  expert  from  each  Member 
State  on  each  on-site  visit  may  be  detrimental  to  the  efficiency  of  the  exercise.  An 
appropriate number of experts to participate in visits needs to be determined. 

The post-evaluation mechanism for assessing the follow-up given to recommendations 
made  after  the  on-site  visits  needs  improving,  as  the  measures  taken  to  remedy 
deficiencies as well as the timeframe within which they are to be remedied vary from 
one Member State to another.  

(5) 

The  institutional  responsibility  of  the  Commission  as  guardian  of  the  Treaty 
concerning first pillar matters is not reflected in the current evaluation system. 

The following points are intended to address these weaknesses: 

Methodology for evaluations 

The present proposal introduces a clear programming, providing for multiannual and annual 
programmes of both announced and unannounced on-site visits. Member States will continue 
to  be  evaluated  on  a  regular  basis  in  order  to  ensure  the  overall  correct  application  of  the 
acquis.  All  parts  of  the  Schengen  acquis  which  have  their  legal  basis  in  the  Treaty 
establishing the European Community can be the subject of evaluation.  

This evaluation can be based on replies to questionnaires, on-site visits or a combination of 
both. In the latter case, the visits can take place shortly after the replies to the questionnaires 
are received. 

In  recent  years,  Member  States  have  not  seen  the  need  to  carry  out  evaluations  on  the  spot 
concerning judicial cooperation in criminal matters, weapons and drugs. Data protection has 
also not always been subject to on-site evaluations.  

Nevertheless, on-site visits are not limited to external borders and visas and can cover all parts 
of the Schengen acquis, including the provisions for the lifting of controls at internal borders. 
However,  as  far  as  weapons  are  concerned,  it  should  be  noted  that  when  the  acquis  was 
integrated  within  the  EU  framework  the  relevant  provisions  of  the  Schengen  acquis  were 

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replaced by Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and 
possession  of  weapons2.  Verification  of  the  correct  transposition  of  this  Directive  was 
entrusted to the Commission in accordance with the EC Treaty. As Member States have never 
seen the need to carry out evaluations on the spot, there is no need to include verification of 
the correct transposition of the Directive in the present proposal. 

The concrete need for on-site visits will be determined by the Commission after seeking the 
advice  of  the  Member  States  taking  into  account  changes  in  the  legislation,  procedures  or 
organisation of the Member State concerned as well as the risk analysis provided by Frontex 
regarding external borders and visas. 

In addition, if necessary, thematic or regional evaluations can also be included in the annual 
programme. 

On top of these regular evaluations, unannounced on-site visits can be made on the basis of 
the  risk  analysis  provided  by  Frontex  or  any  other  source  indicating  a  need  to  carry  out  an 
unannounced visit. 

Both multiannual and annual programmes can always be adapted if need be. 

Expertise of the Member States 

Member  State  experts  are  also  involved  in  verifying  correct  application  in  other  fields  of 
Community  law,  e.g.  aviation  and  maritime  security.  As  the  correct  implementation  of  the 
accompanying  measures  allowing  the  lifting  of  internal  border  controls  is  of  fundamental 
importance  for  the  internal  security  of  Member  States,  experts  of  the  Member  States  will 
continue  to  play  an  important  role  in  the  evaluation  process.  They  will  participate  in  both 
announced  and  unannounced  visits  and  advise  the  Commission  on  drafting  the  multiannual 
and annual evaluation programmes.  

In order to guarantee a high quality of expertise, Member States must ensure that the experts 
have  appropriate  qualifications,  including  a  solid  theoretical  knowledge  and  practical 
experience  in  the  areas  covered  by  the  evaluation,  as  well  as  a  sound  knowledge  of  on-site 
visit principles, procedures and techniques. 

Appropriate  training  should  be  provided  for  by  the  relevant  bodies  (e.g.  Frontex)  and  funds 
should be made available to Member States for initiatives targeted at specific training in the 
field of the evaluation of the Schengen acquis (e.g. through including training in the priorities 
for  Community  actions  adopted  in  accordance  with  the  rules  established  by  the  External 
Borders Fund)3. 

Given  the  need  to  reduce  the  number  of  participating  experts  in  order  to  ensure  efficient 
evaluation  on  the  spot,  the  number  of  experts  participating  in  announced  visits  should  be 
limited  to  eight.  As  it  might  be  more  difficult  to  make  available  experts  for  unannounced 
visits at short notice, the number of experts participating in such visits should be limited to 
six.  

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OJ L 256, 13.9.1991, p. 51. 
OJ L 144 of 6.6.2007, p. 22. 

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The  correct  implementation  of  measures  to  ensure  the  free  movement  of  persons  in 
accordance with Article 14 EC Treaty does not affect the internal security of other Member 
States, so evaluation of the abolition of internal border controls can be fully entrusted to the 
Commission.  It  is  worth  mentioning  that  verification  of  the  abolition  of  internal  border 
controls is not covered by the intergovernmental mandate. 

Follow-up of the evaluation  

In order to address effectively the identified weaknesses and shortcomings, the findings of the 
report  should  each  be  assigned  to  one  of  three  categories.  Within  two  weeks,  the  Member 
State  concerned  should  provide  its  comments  on  the  report  and  within  six  weeks  an  action 
plan on how to remedy the weaknesses. The Member State will be obliged to report within six 
months on the implementation of its action plan. Depending on the weaknesses identified, the 
Commission may schedule and carry out announced or unannounced on-site visits in order to 
verify the correct implementation of the action plan. In the event of serious deficiencies, the 
Commission has to inform the Council without delay. 

This  does  not  affect  the  Commission’s  power  to  initiate  an  infringement  procedure  at  any 
stage of the evaluation. A Member State might be in breach of the acquis, e.g. where it refuses 
entry  to  persons  who are in possession of a valid Schengen visa issued by another Member 
State.  In  such  cases,  the  internal  security  of  the  Member  State  is  not  at  stake,  but  it  is 
nevertheless infringing Community law. 

Integration of the Schengen acquis within the European Union framework 

Given  the  Commission’s  responsibilities  under  the  EC  Treaty,  it  is  essential  for  the 
Commission  to  take  charge  of  the  Schengen  evaluation  process  to  assess  the  correct 
application  of  the  acquis  after  the  lifting  of  internal  border  controls.  Nevertheless,  the 
expertise of the Member States is also important in order to be able to verify implementation 
on the spot as well as to maintain mutual trust between the Member States.  

The costs of the participation of the Member State experts will be borne by the EU budget. 

It should also be recalled that as regards the provisions to be applied by Member States upon 
accession, the Commission retains its powers as guardian of the Treaties. The new evaluation 
mechanism does not cover the correct application of these provisions, as this first needs to be 
evaluated by the Council to determine whether internal border controls can be lifted. 

•  Existing provisions in the area of the proposal 

Decision  of  the  Executive  Committee  setting  up  a  Schengen  Implementing  Convention 
Standing Committee (SCH/Com-ex (98) 26 Def of 16.9.1998) 

•  Consistency with the other policies and objectives of the Union  

The  proposal  is  consistent  with  existing  policies  and  objectives  of  the  European  Union,  in 
particular the objective of creating and maintaining an area of freedom, security and justice. 

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2. 

CONSULTATION OF INTERESTED PARTIES 

Since 1999, several discussions have been held within the Council Working Group ‘Schengen 
Evaluation’ in order to render the Schengen evaluation mechanism more efficient. The group 
agreed for instance to limit the number of experts participating in evaluations. However, this 
agreement is not legally binding and every Member State still has the right to send an expert 
on evaluation visits, which sometimes makes it difficult to ensure the smooth functioning of 
these  visits.  In  addition,  the  frequency  and  methodology  of  the  evaluations  have  also  been 
discussed. 

In April 2008, the Commission organised an expert meeting. Member States agreed with the 
assessment  of  the  weaknesses  as  identified  by  the  Commission.  While  the  Member  States 
acknowledged  the  need  to  change  the  current  mechanism,  some  Member  States  expressed 
doubts  about  the  institutional  role  of  the  Commission  in  a  new  Schengen  evaluation 
mechanism. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

The  instrument  provides  for  a  new  Schengen  evaluation  mechanism  in  order  to  ensure 
transparent,  effective  and  consistent  implementation  of  the  Schengen acquis.  It  also  reflects 
the  changes  in  the  legal  situation  after  the  integration  of  the  Schengen  acquis  within  the 
European Union framework. 

•  Legal basis 

Article  66  of  the  Treaty  establishing  the  European  Community.  The  intergovernmental 
mandate received Article 66 EC Treaty (as well as Articles 30 and 31 EU Treaty for the third 
pillar part) as legal basis and the areas of evaluation remain the same.  

•  Subsidiarity and proportionality 

In  accordance  with  the  principle  of  subsidiarity,  the  objective  of  the  proposed  instrument, 
namely  rendering  more  efficient  the  existing  Schengen  evaluation  mechanism,  which  is 
currently the responsibility of the Council, can only be achieved at Community level.  

The  present  proposal  remains  within  the  current  framework,  while  limiting  the  number  of 
participating  experts  and  increasing  efficiency.  It  does  not  go  beyond  what  is  necessary  to 
achieve its objective. 

•  Choice of legal instrument 

An  evaluation  mechanism  to  ensure  the  correct  application  of  Community  law  by  its  very 
nature  cannot  require  any  action  by  Member  States  to  transpose  it  into  national  law,  so  the 
instrument chosen is a Regulation. 

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4. 

BUDGETARY IMPLICATIONS 

The  Commission  has  prepared  a  common  financial  statement  applying  also  to  the  Decision 
proposed under Title VI of the EU Treaty. It is annexed to this Regulation. Adequate human 
and financial resources will have to be allocated to the Commission, which will be responsible 
for the new Schengen evaluation mechanism. Costs incurred by the Member State experts will 
also be reimbursed. 

5. 

ADDITIONAL INFORMATION 

Consequences  of  the  various  protocols  annexed  to  the  Treaties  and  of  the  association 
agreements concluded with third countries 

The  legal  basis  for  this  proposal is  in  Title  IV  of  the  EC  Treaty,  so  the  system  of  ‘variable 
geometry’ provided for in the protocols on the position of the United Kingdom, Ireland and 
Denmark and in the Schengen protocol, applies.  

This proposal builds upon the Schengen acquis. The following consequences in relation to the 
various protocols therefore have to be taken into account:  

United Kingdom and Ireland: This provides for an evaluation mechanism covering parts of 
the  Schengen  acquis  in  which  the  United  Kingdom  and  Ireland  do  not  participate,  in 
accordance  with  Council  Decision  2000/365/EC  of  29  May  2000  concerning  the  request  of 
the  United  Kingdom  of  Great  Britain  and  Northern  Ireland  to  take  part  in  some  of  the 
provisions of the Schengen acquis and Council Decision 2002/192/EC of 28 February 2002 
concerning  Ireland’s  request  to  take  part  in  some  of  the  provisions  of  the  Schengen  acquis. 
Therefore, the United Kingdom and Ireland participate in the adoption of this Regulation and 
are bound by it or subject to its application only to the extent that the evaluation mechanism 
covers  those  parts  of  the  Schengen  acquis  in  which  the  United  Kingdom  and  Ireland  do 
participate, such as for example carrier’s liability and drugs.  

Denmark: Under the Protocol on the position of Denmark annexed to the EU Treaty and the 
EC Treaty, Denmark does not take part in the adoption by the Council of measures under Title 
IV of the EC Treaty, with the exception of ‘measures determining the third countries whose 
nationals must be in possession of a visa when crossing the external borders of the Member 
States, or measures relating to a uniform format for visas’. 

This proposal builds on the Schengen acquis, and under Article 5 of the Protocol ‘Denmark 
shall  decide  within  a  period  of  six  months  after  the  Council  has  decided  on  a  proposal  or 
initiative  to  build  upon  the  Schengen  acquis  under  the  provisions  of  Title  IV  of  the  Treaty 
establishing the European Community whether it will implement this decision in its national 
law’.  

Consequences for the new Member States of the two-stage procedure for implementing 
instruments building on the Schengen acquis (Bulgaria, Cyprus and Romania): 

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Article  3(1)  of  the  2003  Act  of  Accession4  and  Article  4(1)  of  the  2005  Act  of  Accession5 
state  that  the  provisions  of  the  Schengen  acquis  and  the  acts  building  upon  it  or  otherwise 
related to it, listed respectively in Annex I and Annex II to these Acts, will be binding on and 
applicable  in  the  new  Member  States  from  the  date  of  accession.  Provisions  and  acts  not 
referred  to  in  the  Annexes,  while  binding  on  the  new  Member  States  from  the  date  of 
accession,  will  only  apply  in  a  new  Member  State  pursuant  to  a  Council  Decision  to  that 
effect taken in accordance with these Articles.  

This is the two-stage implementation procedure whereby certain provisions of the Schengen 
acquis  are  binding  and  applicable  from  the  date  of  accession  to  the  Union  whereas  others, 
specifically  those  linked  intrinsically  to  the  removal  of  controls  at  internal  borders,  are 
binding  from  the  date  of  accession  but  applicable  in  the  new  Member  States  only  after  a 
Council Decision to that effect. 

This instrument specifies how the correct implementation of the acquis is to be ensured after 
the lifting of internal border controls. 

It  should  be  underlined  that  for  those  provisions,  which  are  applicable  upon  accession,  the 
Commission  retains  its  powers  as  guardian  of  the  Treaties.  Nevertheless,  the  evaluation 
mechanism  introduced  by  this  instrument  applies  to  these  provisions  only  after  the  Council 
has carried out the Schengen evaluation to determine whether internal border controls can be 
lifted. 

Norway  and  Iceland:  As  regards  Norway  and  Iceland,  this  proposal  constitutes  a 
development of the provisions of the Schengen acquis within the meaning of the Agreement 
concluded  by  the  Council  of  the  European  Union  and  the  Republic  of  Iceland  and  the 
Kingdom  of  Norway  concerning  the  association  of  the  latter  two  States  with  the 
implementation, application and development of the Schengen acquis6. 

Switzerland:  As  regards  Switzerland,  this  proposal  constitutes  a  development  of  the 
provisions  of  the  Schengen  acquis  within  the  meaning  of  the  Agreement  concluded  by  the 
European  Union,  the  European  Community  and  the  Swiss  Confederation  on  the  latter’s 
association with the implementation, application and development of the Schengen acquis7. 

Liechtenstein:  As  regards  Liechtenstein,  this  proposal  constitutes  a  development  of  the 
provisions of the Schengen acquis within the meaning of the Protocol between the European 
Union,  the  European  Community,  the  Swiss  Confederation  and  the  Principality  of 
Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between 
the  European  Union,  the  European  Community  and  the  Swiss  Confederation  on  the  Swiss 
Confederation’s  association  with  the  implementation,  application  and  development  of  the 
Schengen  acquis,  which  falls  within  the  areas  referred  to  in  Article  1,  points  A  to  G,  of 
Council  Decision  1999/437/EC  read  in  conjunction  with  Article  3  of  Council  Decision 
2008/261/EC8. 

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8 

OJ L 236, 23.10. 2003, p. 33. 
OJ L 157, 21.6. 2005, p. 29. 
OJ L 176, 10.7.1999, p. 36. 
OJ L 53, 27.2.2008, p. 52. 
OJ L 83, 26.3.2008, p. 3. 

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It  needs  to  be  underlined  that  infringements  identified  in  the  application  of  the  Schengen 
acquis  by  Iceland,  Norway,  Switzerland  and  Liechtenstein  have  to  be  brought  before  the 
Mixed  Committees  established  under  the  above-mentioned  Agreements  and  the  respective 
provisions on the settlement of disputes apply. 

Participation  of  experts  from  Member  States  that  do  not  yet  fully  apply  the  acquis  or 
which are allowed to apply only parts of the acquis: 

As  far  as  Cyprus,  Bulgaria  and  Romania  are  concerned,  their  experts  can  participate  in  the 
evaluation  of  those  parts  of  the  acquis  which  they  already  apply  in  accordance  with  the 
respective Acts of Accession (e.g. external borders except SIS).  

As far as the United Kingdom and Ireland are concerned, their experts can only take part in 
evaluations of those parts of the acquis which have already been put into effect.  

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2009/0033 (CNS) 

Proposal for a  

COUNCIL REGULATION 

on the establishment of an evaluation mechanism to verify the application of the 
Schengen acquis  

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community and in particular Article 66 
thereof, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Parliament, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The Hague programme9 invited the Commission ‘to submit, as soon as the abolition of 
controls at internal borders has been completed, a proposal to supplement the existing 
Schengen  evaluation  mechanism  with  a  supervisory  mechanism,  ensuring  full 
involvement of Member States experts, and including unannounced inspections’. 

By  decision  of  the  Executive  Committee  of  16  September  199810,  a  Standing 
Committee  on  the  evaluation  and  implementation  of  Schengen  was  set  up.  The 
Standing  Committee  was  given  the  mandate,  firstly,  to  establish  whether  all  the 
preconditions  for  lifting  internal  border  controls  with  a  candidate  State  have  been 
fulfilled, and secondly, to ensure that the Schengen acquis is properly applied by the 
States already implementing the acquis in full. 

A  specific  evaluation  mechanism  to  verify  the  application  of  the  Schengen  acquis is 
necessary  given  the  need  to  maintain  a  high  level  of  mutual  trust  between  those 
Member States that form part of an area without internal border controls and the need 
to ensure high uniform standards in the application of the Schengen acquis in practice. 
Such a mechanism should build upon close cooperation between the Commission and 
those  Member  States,  without  prejudice  to  the  powers  of  the  Commission  under 
Article 226 of the Treaty establishing the European Community.  

The  evaluation  mechanism  set  up  in  1998  should  therefore  be  revised  as  regards  the 
second  part  of  the  mandate  given  to  the  Standing  Committee.  The  first  part  of  the 
mandate  given  to  the  Standing  Committee  should  continue  to  apply  as  laid  down  in 
part I of the Decision of 16 September 1998. 

9 
10 

OJ 53, C 3.3.2005, p. 1 (point 1.7.1)  
OJ L 239, 22.9.2000, p. 138  

EN 

11 

   EN 

 
                                                 
(5) 

(6) 

(7) 

(8) 

(9) 

The Schengen acquis contains both provisions covered by the Treaty establishing the 
European Community and provisions covered by the Treaty on European Union. The 
experience gathered during previous evaluations demonstrates the need to maintain a 
coherent evaluation mechanism covering both pillars.  

This  Regulation  constitutes  the  necessary  legislative  basis  for  implementing  the 
evaluation  mechanism  in  respect  of  matters  falling  within  the  scope  of  the  Treaty 
establishing  the  European  Community.  Council  Decision  XXXX/XXX/JHA  of  … 
establishing an evaluation mechanism to verify the application of the Schengen acquis 
constitutes the necessary legislative basis for implementing the evaluation mechanism 
in respect of matters falling within the scope of the Treaty on European Union. 

The  fact  that  the  legislative  basis  necessary  for  setting  up  the  evaluation  mechanism 
consists of separate instruments does not affect the principle that all evaluations should 
be  implemented  as  part  of  one  single  mechanism.  Certain  provisions  of  these 
instruments should therefore be identical. 

The  evaluation  mechanism  should  set  up  transparent, efficient and clear rules on the 
methodology to be applied for the evaluations, the use of highly qualified experts for 
on-site visits, and the follow-up to be given to the findings of the evaluations. Notably, 
the  methodology  should  provide  for  unannounced  on-site  visits  to  complement  the 
announced on-site visits, in particular with regard to border controls and visas. 

The scope of the evaluation mechanism should also include verification of the relevant 
legislation on the abolition of controls at internal borders and checks within national 
territory.  In  view  of  the  specific  nature  of  these  provisions,  which  do  not  affect  the 
internal security of the Member States, the relevant on-site visits should be entrusted 
exclusively to the Commission. 

(10)  The European Agency for the management of operational cooperation at the external 
borders  of  the  Member  States  of  the  European  Union11  (hereinafter  referred  to  as 
Frontex) should support the implementation of the mechanism, primarily in the area of 
risk analysis relating to external borders. The mechanism should also be able to rely 
on the expertise of the Agency for carrying out on-site visits at the external borders on 
an ad hoc basis. 

(11)  Member  States  should  ensure  that  experts  made  available  for  on-site  visits  have  the 
necessary  experience  and  have  undergone  specific  training  for  this  purpose. 
Appropriate training should be provided for by the relevant bodies (e.g. Frontex) and 
funds  should  be  made  available  to  Member  States  for  initiatives  targeted  at  specific 
training  in  the  field  of  the  evaluation  of  the  Schengen  acquis  through  the  existing 
financial instruments and their development. 

(12)  This Regulation and the Decision of the Executive Committee of 16 September 1998, 
in  so  far  as  it  is  not  repealed  by  this  Regulation,  are  without  prejudice  to  the 
Commission’s  powers  under  the  Treaty  establishing  the  European  Community  as 
regards  the  application  of  those  provisions  of  the  Schengen  acquis  referred  to  in 
Article  3(1)  of  the  2003  Act  of  Accession  as  regards  the  Republic  of  Cyprus  and  in 

11 

Council Regulation (EC) No 2007/2004 of 26 October 2004 (OJ L 349 of 25.11.2004, p. 1). 

EN 

12 

   EN 

 
                                                 
Article  4(1)  of  the  2005  Act  of  Accession  as  regards  the  Republic  of  Bulgaria  and 
Romania. 

(13) 

In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark, 
annexed  to  the  Treaty  on  European  Union  and  the  Treaty  establishing  the  European 
Community,  Denmark  does  not  take  part  in  the  adoption  of  this  Regulation  and  is 
therefore not bound by it or subject to its application. Given that this Regulation builds 
upon the Schengen acquis under the provisions of Title IV of Part Three of the Treaty 
establishing the European Community, Denmark should, in accordance with Article 5 
of  that  Protocol,  decide  within  a  period  of  six  months  after  the  adoption  of  this 
Regulation whether it will implement it in its national law. 

(14)  This  Regulation  constitutes  a  development  of  provisions  of  the  Schengen  acquis,  in 
which the United Kingdom participates to the extent that the Schengen acquis subject 
to  evaluation  is  included  in  Council  Decision  2000/365/EC  of  29  May  2000 
concerning the request of the United Kingdom of Great Britain and Northern Ireland 
to  take  part  in  some  of  the  provisions  of  the  Schengen  acquis12,  and  subsequent 
Council  Decision  2004/926/EC  of  22  December  2004  on  the  putting  into  effect  of 
parts  of  the  Schengen  acquis  by  the  United  Kingdom  of  Great  Britain  and  Northern 
Ireland13. The United Kingdom is therefore taking part in its adoption and is bound by 
it or subject to its application only to this extent. 

(15)  This  Regulation  constitutes  a  development  of  provisions  of  the  Schengen  acquis,  in 
which Ireland participates to the extent that the Schengen acquis subject to evaluation 
is  included  in  Council  Decision  2002/192/EC  of  28  February  2002  concerning 
Ireland’s  request  to  take  part  in  some  of  the  provisions  of  the  Schengen  acquis14. 
Ireland  is  therefore  taking  part  in  its  adoption  and  is  bound  by  it  or  subject  to  its 
application only to this extent. 

(16)  As  regards  Iceland  and  Norway,  this  Regulation  constitutes  a  development  of 
provisions of the Schengen acquis within the meaning of the Agreement concluded by 
the Council of the European Union and the Republic of Iceland and the Kingdom of 
Norway  concerning  the  association  of  those  two  States  with  the  implementation, 
application  and  development  of  the  Schengen  acquis15  which  falls  within  the  areas 
referred to in Article 1, point A to G of Council Decision 1999/437/EC16 of 17 May 
1999 on certain arrangements for the application of that Agreement, with the exception 
of Article 13 (7) and the third indent of Article 16. 

(17)  As regards Switzerland, this Regulation constitutes a development of provisions of the 
Schengen  acquis  within  the  meaning  of  the  Agreement  concluded  between  the 
European  Union,  the  European  Community  and  the  Swiss  Confederation  concerning 
the  association  of  the  Swiss  Confederation  with  the  implementation,  application  and 
development  of  the  Schengen  acquis17,  which  fall  within  the  areas  referred  to  in 
Article 1, points A to G, of Council Decision 1999/437/EC as read in conjunction with 

12 
13 
14 
15 
16 
17 

OJ L 131, 1.6.2000, p. 43. 
OJ L 395, 31.12.2004, p. 70. 
OJ L 64, 7.3.2002, p. 20. 
OJ L 176, 10.7.1999, p. 36. 
OJ L 176, 10.7.1999, p. 31. 
OJ L 53, 27.2.2008, p. 52  

EN 

13 

   EN 

 
                                                 
Article  3  of  Council  Decision  2008/146/EC18  of  27  February,  with  the  exception  of 
Article 13 (7) and the third indent of Article 16. 

(18)  As  regards  Liechtenstein,  this  Regulation  constitutes  a  development  of  provisions  of 
the Schengen acquis within the meaning of the Protocol signed between the European 
Union,  the  European  Community,  the  Swiss  Confederation  and  the  Principality  of 
Liechtenstein  on  the  accession  of  the  Principality  of  Liechtenstein  to  the  Agreement 
between the European Union, the European Community and the Swiss Confederation 
on  the  Swiss  Confederation’s  association  with  the  implementation,  application  and 
development of the Schengen acquis, which falls within the areas referred to in Article 
1, points A to G, of Council Decision 1999/437/EC read in conjunction with Article 3 
of Council Decision 2008/261/EC19 of 26 March 2008, with the exception of Article 
13 (7) and the third indent of Article 16. 

(19)  As regards Cyprus, this Regulation constitutes an act building on the Schengen acquis 
or  otherwise  related  to  it  within  the  meaning  of  Article  3(2)  of  the  2003  Act  of 
Accession. 

(20)  As  regards  Bulgaria  and  Romania,  this  Regulation  constitutes  an  act  building  on  the 
Schengen  acquis  or  otherwise  related  to  it  within  the  meaning  of  Article  4(2)  of  the 
2005 Act of Accession, 

HAS ADOPTED THIS REGULATION: 

Article 1 

Purpose and scope 

This  Regulation  establishes  an  evaluation  mechanism  to  verify  the  application  of  the 
Schengen acquis in the Member States to which the Schengen acquis applies in full and in the 
Member  States  which  have  been  authorised  by  the  Council  to  take  part  in  some  of  the 
provisions of the Schengen acquis.  

Member  States  which  have  been  authorised  to  take  part  in  some  of  the  provisions  of  the 
Schengen acquis shall only participate in the evaluation of the provisions that are covered by 
the authorisation and which they already apply.  

Member States which do not yet fully apply the acquis shall only participate in the evaluation 
of those parts of the acquis which they already apply. 

Article 2 

Definitions 

For the purposes of this Regulation the following definition applies: 

18 
19 

OJ L 53, 27.2.2008, p. 1. 
OJ L 83, 26.3.2008, p. 3. 

EN 

14 

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‘Schengen  acquis’,  means  the  provisions  of  the  Schengen  acquis  as  integrated  into  the 
framework of the European Union by the Protocol annexed to the Treaty on European Union 
and to the Treaty establishing the European Community, as well as the acts building upon it or 
otherwise  related  to  it,  in  so  far  as  those  provisions  and  acts  have  their  legal  basis  in  the 
Treaty establishing the European Community; 

1. 

2. 

1. 

2. 

1. 

2. 

Article 3 

Responsibilities 

The Commission is responsible for the implementation of this evaluation mechanism. 
This  mechanism  is  coordinated  by  a  group,  hereinafter  referred  to  as  "coordination 
group",  which  consists  of  representatives  of  the  Member  States  and  of  the 
Commission.  The  group  is  chaired  by  a  representative  of  the  Commission.  The 
Commission may invite Frontex to participate in the coordination group. 

Member  States  shall cooperate with the Commission within the coordination group 
to  allow  the  Commission  to  carry  out  the  tasks  conferred  on  it  by  the  present 
regulation.  Member  States  shall  also  cooperate  with  the  Commission  during  the 
preparatory, on site visit, reporting and follow up phases of evaluations.  

Article 4 

Evaluations 

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

The specific areas that may be covered by evaluations are listed in the Annex to this 
Regulation, in so far as these areas relate to acts or provisions that have their legal 
bases  in  the  Treaty  establishing  the  European  Community.  The  Annex  contains  a 
non-exhaustive list of such areas. 

Article 5 

Multiannual programme 

A  multiannual  evaluation  programme  covering  a  period  of  five  years  shall  be 
established by the Commission in close cooperation with the coordination group, not 
later than three months before the start of the next five-year period. 

The multiannual programme shall contain the list of Member States to be evaluated 
each year. Each Member State shall be evaluated at least once during each five-year 
period.  The  order  of  the  Member  States  to  be  evaluated  will  be  based  on  a  risk 
analysis  taking  into  account  the  migratory  pressure,  the  time  elapsed  since  the 

EN 

15 

   EN 

 
3. 

4. 

1. 

2. 

1. 

previous  evaluation  and  the  balance  between  the  different  parts  of  the  Schengen 
acquis to be evaluated.  

A standard questionnaire shall be attached to the multiannual programme. 

The multiannual programme may be adapted, if necessary, in close cooperation with 
the coordination group. 

Article 6 

Risk analysis 

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

By  the  same  deadline  in  paragraph  1,  Frontex  shall  submit  to  the  Commission  a 
separate  risk  analysis  with  recommendations  for  priorities  for  evaluations  to  be 
implemented  through  unannounced  on-site  visits  in  the  coming  year.  These 
recommendations may concern any region or specific area and shall contain a list of 
at least ten specific sections of the external borders and ten specific border crossing 
points.  

Article 7 

Annual programme 

Taking into account the risk analysis provided by Frontex in accordance with Article 
6, an annual evaluation programme shall be established by the Commission,, not later 
than  30  November  of  the  previous  year.  The  programme  may  provide  for  the 
evaluation of: 

–  the application of the acquis by one Member State, as specified in the multiannual 

programme; 

and in addition, where relevant: 

–  the  application  of  specific  parts  of  the  acquis  across  several  Member  States 

(thematic evaluations);  

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

2. 

A  first  section  of  the  programme,  established  by  the  Commission  in  close 
cooperation  with  the  coordination  group,  will  enumerate  the  Member  States  to  be 
evaluated  in  the  coming  year  in  accordance  with  the  multiannual  programme.  This 
section shall contain a list of the areas to be evaluated and include the questionnaire 

EN 

16 

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to be communicated to the Member States concerned. If an assessment is possible at 
that stage, the programme shall contain a list of on-site visits to be carried out.  

The  Commission  shall  decide,  after  analysis  of  the  replies  to  the  questionnaire, 
whether an on-site visit is to take place or not. 

An on-site visit shall not take place earlier than four months after communication of 
the questionnaire by the Commission to the Member State concerned. 

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

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

Article 8 

List of experts 

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

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

Member States shall indicate which experts can be made available for unannounced 
on-site visits in accordance with the requirements set out in Article 9(5). 

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

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

Article 9 

Teams responsible for on-site visits 

On-site visits shall be carried out by teams appointed by the Commission. The teams 
shall  consist  of  experts  drawn  from  the  list  of  experts  referred  to  in  Article  8  and 
Commission official(s). The Commission shall ensure the geographical balance and 
competence of the experts taking part in each team. Member State experts may not 
participate in an on-site visit to the Member State where they are employed. 

3. 

4. 

1. 

2. 

3. 

4. 

5. 

1. 

EN 

17 

   EN 

 
2. 

3. 

4. 

5. 

The  Commission  may  invite  Frontex  to  designate  a  representative  of  the  agency  to 
take part in a visit to external borders as an observer. 

The  number  of  experts  participating  in  evaluation  visits  may  not  exceed  eight 
persons for the announced on-site visits and six persons for the unannounced on-site 
visits. 

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

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

6. 

The coordinating expert for on-site visits shall be a Commission official. 

Article 10 

Conduct of on-site visits 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

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

Prior to the on-site visits the Member States shall be notified:  

–  at least 2 months before an announced on-site visit is due to take place; 

–  at least 24 hours before an unannounced on-site visit takes place. 

The members of the on-site visit team shall each carry identification authorising on-
site visits on behalf of the Commission.  

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

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

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

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

EN 

18 

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Article 11 

Questionnaire 

1. 

2. 

The  questionnaires  shall  cover  the  relevant  legislation  and  the  organisational  and 
technical  means  available  for  the  implementation  of  the  Schengen  acquis  and 
statistical data for each field of evaluation. 

Member  States  shall  provide  their  replies  to  the  questionnaire  to  the  Commission 
within six weeks of its communication.  

Article 12 

Verification of the free movement of persons at internal borders 

Notwithstanding  Article  9,  on-site  visit  teams  for  unannounced  on-site  visits  to  verify  the 
absence of controls at internal borders shall consist of Commission officials only. 

Article 13 

Evaluation reports 

1. 

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

(a) 

(b) 

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

In the case of announced on-site visits, the report shall be drawn up by the team 
during  the  visit.  The  Commission  official  shall  take  overall  responsibility  for 
drafting the report as well as ensuring its integrity and quality. 

2. 

The report shall analyse the qualitative, quantitative, operational, administrative and 
organisational  aspects  as  relevant  and  shall  list  any  shortcomings  or  weaknesses 
established  during  the  evaluation.  The  report  shall  contain  recommendations  for 
remedial action as well as respective deadlines for their implementation.  

3. 

One of the following classifications shall apply to each of the findings of the report:  

(a) 

compliant; 

(b) 

compliant but improvement necessary; 

(c) 

non-compliant, with serious deficiencies. 

4. 

The  report  shall  be  notified  by  the  Commission  to  the  Member  State  concerned 
within four weeks of the on-site visit or the receipt of replies to the questionnaire as 
relevant.  The  Member  State  concerned  shall  provide  its  comments  on  the  report 
within two weeks. 

EN 

19 

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5. 

6. 

7. 

8. 

Within six weeks of receipt of the report, the Member State concerned shall provide 
an action plan on how to remedy any weaknesses identified to the Commission. 

The  report  and  the  reply  of  the  Member  State  concerned  shall  be  presented  by  the 
Commission  expert  to  the  coordination  group.  The  Commission  shall  present  its 
assessment  of  the  adequacy  of  the  action  plan.  Member  States  shall  be  invited  to 
comment on the report and the action plan. 

The Member State concerned shall report to the Commission on the implementation 
of  the  action  plan  within  six  months  of  receipt  of  the  report,  and  shall  thereafter 
continue  to  do  so  every  three  months  as  long  as  the  action  plan  is  not  fully 
implemented.  Depending  on  the  severity  of  the  weaknesses  identified  and  the 
measures  taken  to  remedy  those  weaknesses,  the  Commission  may  schedule 
announced or unannounced on-site visits to verify the implementation of the action 
plan.  

Paragraphs  1  to  6  are  without  prejudice  to  the  powers  of  the  Commission  under 
Article 226 of the Treaty establishing the European Community. 

If an on-site visit reveals a serious deficiency deemed to have a significant impact on 
the  overall  level  of  security  of  one  or  more  Member  States  applying  the  Schengen 
acquis in full, the Commission shall inform the Council as soon as possible. 

Article 14 

Sensitive information 

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

Article 15 

Transitional provisions 

1. 

2. 

3. 

The  first  multiannual  programme  in  accordance  with  Article  5  and  the  first  annual 
programme  in  accordance  with  Article  7  shall  be  established  six  months  after  the 
entry into force of this Regulation. The starting dates for both programmes shall be 
one year after the entry into force of this Regulation.  

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

Member  States  shall  designate  their  experts  in  accordance  with  Article  8  not  later 
than three months after the entry into force of this Regulation. 

EN 

20 

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Article 16 

Reporting to the Parliament and the Council 

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

–  the evaluations carried out during the previous year, 

–  the conclusions in relation to each evaluation and the state-of-play with regard to remedial 

actions, and 

–  any infringement procedures initiated by the Commission as a result of the evaluations. 

Article 17 

Repeal 

Where this relates to the Schengen acquis as defined in Article 2, part II of the Decision of the 
Executive  Committee  of  16  September  1998  setting  up  a  Standing  Committee  on  the 
evaluation  and 
implementation  of  Schengen  (SCH/Com-ex  (98)  26  def.),  entitled 
‘Implementation committee for the states already applying the convention’, shall be repealed 
as of one year after the entry into force of this Regulation. 

Article 18 

Entry into force  

This Regulation shall enter into force on the 20th day following its publication in the Official 
Journal of the European Union.  

This Regulation shall be binding in its entirety and directly applicable in the Member States, 
in accordance with the Treaty establishing the European Community. 

Done at Brussels,  

For the Council 
The President 

EN 

21 

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ANNEX  

•  Internal borders: 

–  Abolition of checks at internal borders 

–  Abolition of obstacles at internal borders 

•  External borders:  

–  Strategy and organisational and functional structure of border services 

–  Risk analysis, intelligence and data flow management; 

–  Readmission, expulsion and illegal immigration, including carrier’s liability 

–  Provisions for carrying out checks at border crossing points 

–  Infrastructure of border crossing points 

–  Technical means available at the external borders for border control 

–  Numbers and training of border guards 

–  Surveillance systems at borders 

–  Existing forms of cooperation with neighbouring third countries 

•  Visas: 

–  Provisions on the issuance of visas 

–  Consultation of the Schengen Information System and Visa Information System 

–  Security of Consulate premises 

–  Provisions  and  practical  arrangements  for  the  procurement  of  Schengen  visa 

stickers and storage conditions 

–  Numbers and training of consular staff 

–  IT equipment for detecting false and falsified documents 

–  Consular cooperation 

•  Data protection 

–  Legal, organisational and technical aspects of the protection of personal data 

–  Measures to prevent access to information systems and to data stored 

–  Data subject rights and complaints handling;  

EN 

22 

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–  Supervisory role (on-site visits) 

–  Data protection in relation to visa issuance 

–  Cooperation with other Data Protection Authorities (DPA) 

•  Schengen Information System (SIS) / Sirene 

–  Security of data  

–  Security of IT systems and networks where data are processed 

–  Security of premises 

–  Legislative and regulatory provisions regarding the SIS 

–  Data handling, entry, modification, deletion of alerts, data quality measures 

–  Technical availability and operational capacity of the Sirene Bureaux 

–  End-user access to relevant SIS data 

–  Training 

•  Drugs 

–  Implementation of the Schengen medical certificate and obstacles encountered  

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23 

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LEGISLATIVE FINANCIAL STATEMENT FOR PROPOSALS HAVING A 
BUDGETARY IMPACT EXCLUSIVELY LIMITED TO THE REVENUE SIDE 

1. 

NAME OF THE PROPOSAL: 

Proposal for a Council Regulation on the establishment of an evaluation mechanism 
to verify the application of the  Schengen  acquis  and  for  a  Council  Decision  on  the 
establishment  of  an  evaluation  mechanism  to  monitor  the  application  of  the 
Schengen acquis 

2. 

ABM / ABB FRAMEWORK 

Policy Area: Area of Freedom, Security and Justice (title 18) 

Activities:  Solidarity  –  External  borders,  visa  policy  and  free  movement  of  people 
(chapter 18.02)  

3. 

BUDGET LINES 

3.1. 

Budget  lines  (operational  lines  and  related  technical  and  administrative 
assistance lines (ex- B..A lines)) including headings: 

Under Chapter 18.02 (Solidarity — External borders, visa policy and free movement 
of people), creation of an article 18 02 XX - entitled “Schengen evaluation"* 

*Budget line to be created in the PDB 2010 

3.2. 

Duration of the action and of the financial impact: 

It  is  envisaged  that  the  action  will  start  as  of  2010  or  2011.  The  action  will  be 
permanent. 

3.3. 

Budgetary characteristics : 

Budget 
line 

Type of expenditure 

New 

Contribution 
from 
Schengen 
associated 
countries 

Contributions 
from applicant 
countries 

Heading in 
financial 
perspective 

See 3.1 

Non-
comp 

Diff20 

YES/  

YES 

NO 

No [3A] 

20 

Differentiated appropriations 

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24 

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4. 

SUMMARY OF RESOURCES 

4.1. 

Financial Resources 

4.1.1. 

Summary of commitment appropriations (CA) and payment appropriations (PA) 

EUR million (to 3 decimal places) 

2011

2012

2013

n + 4 

n + 5 
and 
later 

Total 

Year 
201
0 

p.m. 

0.56 

0.73 

0.73 

Section 
no. 

Expenditure type 

Operational expenditure21 

Commitment Appropriations 
(CA) 

8.1. 

Payment 
(PA) 

Appropriations 

a 

b 

Administrative expenditure within reference amount22 

Technical  &  administrative 
assistance (NDA) 

8.2.4. 

c 

TOTAL REFERENCE AMOUNT 

Commitment 
Appropriations 

Payment Appropriations 

p.m. 

0.56 

0.73 

0.73 

p.m. 

0.56 

0.73 

0.73 

a+c

b+c

Administrative expenditure not included in reference amount23 

Human 
associated 
(NDA) 

resources 

and 
expenditure 

Administrative  costs,  other 
than  human  resources  and 
not 
associated 
included 
reference 
in 
amount (NDA) 

costs, 

8.2.5. 

d 

8.2.6. 

e 

0.12 

0.61 

0.85 

0.85 

p.m. 

0.06 

0.1 

0.1 

Total indicative financial cost of intervention 

TOTAL CA including cost 
of Human Resources 

0.12 

1.23 

1.68 

1.68 

a+c
+d
+e 

21 
22 
23 

Expenditure that does not fall under Chapter xx 01 of the Title xx concerned. 
Expenditure within article xx 01 04 of Title xx. 
Expenditure within chapter xx 01 other than articles xx 01 04 or xx 01 05. 

EN 

25 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
TOTAL  PA  including  cost 
of Human Resources 

0.12 

1.23 

1.68 

1.68 

b+c
+d
+e 

Co-financing details 

If  the  proposal  involves  co-financing  by  Member  States,  or  other  bodies  (please 
specify  which),  an  estimate  of  the  level  of  this  co-financing  should  be  indicated  in 
the table below (additional lines may be added if different bodies are foreseen for the 
provision of the co-financing): 

EUR million (to 3 decimal places) 

Year 
n 

n + 1

n + 2

n + 3

n + 4 

n + 5 
and 
later 

Total 

Co-financing body 

…………………… 

TOTAL  CA  including  co-
financing 

f 

a+c
+d
+e
+f 

4.1.2.  Compatibility with Financial Programming 

(cid:59) 

(cid:133) 

(cid:133) 

Proposal  is  compatible  with  existing  financial  programming24.  If  necessary, 
financial  appropriations  for  2010  will  be  made  available  by  a  transfer 
within chapter 18.02.  

Proposal  will  entail  reprogramming  of  the  relevant  heading  in  the  financial 
perspective. 

Proposal  may  require  application  of  the  provisions  of  the  Interinstitutional 
Agreement25 (i.e. flexibility instrument or revision of the financial perspective). 

4.1.3.  Financial impact on Revenue 

(cid:59) 

Proposal has financial impact – the effect on revenue is as follows: 

The  present  proposal  builds  upon  the  Schengen  acquis,  as  defined  in  Council 
Decision  1999/437/EC.  Third  countries  associated  with  the  Schengen  acquis, 
Iceland  and  Norway26  as  well  as  Switzerland27  and  Liechtenstein28  contribute 
thus to the costs.  

24 
25 
26 

The evaluation mechanism will continue to be implented after the financial year 2013. 
See points 19 and 24 of the Inter-institutional agreement. 
Article 12 (1), last paragraph of the Agreement between the Council and the Republic of Iceland and 
the  Kingdom  of  Norway  concerning  the  association  of  both  these  States  with  the  implementation, 
application and development of the Schengen acquis (OJ L 176 of 10.7.1999, 36) 

EN 

26 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Budget line 

Revenue 

EUR million (to one decimal place) 

Situation following action 

2010 2011 2012  2013  [n+4] [n+5]

29

Prior to
action 
[Year 
n-1] 

18.02.XX 

a) Revenue in absolute terms 

p.m.  0.07  0.1 

0.11 

b) Change in revenue 

 ∆ 

4.2. 

Human Resources FTE (including officials, temporary and external staff) – see 
detail under point 8.2.1. 

The  need  for  human  and  administrative  resources  shall  be  covered  within  the 
allocation granted to the managing service in the framework of the annual allocation 
procedure 

Annual requirements 

Year 
2010 

2011 

2012 

2013 

n + 4 

n + 5 
and 
later 

Total  number  of  human 
resources 

1 

5 

7 

7 

5. 

CHARACTERISTICS AND OBJECTIVES 

5.1. 

Need to be met in the short or long term 

Given  the  intergovernmental  origin  of  the  Schengen  acquis,  the  current  Schengen 
evaluation  mechanism  is  entrusted  to  the  Council.  Expenditure  incurred  in  the 
framework of the evaluations is born by the national budget of Member States whose 
experts  participate  in  the  Schengen  acquis.  After  the  integration  of  the  Schengen 
acquis into the framework of the European Union, it is necessary to provide also for 
a legal framework in which these evaluations are carried out. Consequently, the costs 
incurred  through  this  mechanism,  in  particular  related  to  the  participation  of  the 
experts  of 
travel  expenditure  and 
accommodation during the on the spot visit) shall be borne by the EU budget. The 

the  Member  States  (reimbursement  of 

27 

28 

29 

Article 11 (3) 2nd alinea of the Agreement between the European Union, the European Community and 
the Swiss Confederation on the Swiss Confederation's association with the implementation, application 
and development of the Schengen acquis (OJ L 53, 27.2.2008, p. 50) 
Article  3  of  the  Protocol  between  the  European  Union,  the  European  Community,  the  Swiss 
Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein 
to the Agreement between the European Union, the European Community and the Swiss Confederation 
on the Swiss Confederation's association with the implementation, application and development of the 
Schengen acquis (OJ L 83, 26.3.2008, p. 3) 
Additional columns should be added if necessary i.e. if the duration of the action exceeds 6 years 

EN 

27 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                                                                                                                         
per  diem  of  the  Member  States  expert  continue  to  be  covered  by  the  budget  of  the 
MS concerned. 

5.2. 

Value-added  of  Community  involvement  and  coherence  of  the  proposal  with 
other financial instruments and possible synergy 

The maintenance of the Schengen area as an area of free movement without internal 
border  control  is  dependant  on  an  effective  and  efficient  evaluation  mechanism  in 
relation  with  the  accompanying  measures  allowing  for  the  maintenance  of  such  an 
area without internal border control. It is indispensable to adapt the framework of the 
intergovernmental  Schengen  evaluation 
the 
Commission  as  guardian  of  the  Treaties  takes  over  its  responsibilities  while  fully 
ensuring the participation of member States experts in order to maintain mutual trust. 
In order to keep a coherent set of evaluation, also the evaluation based on the third 
pillar  shall  be  coordinated  by  the  Commission,  while  again,  fully  involving  the 
experts of Member States. 

the  EU  framework,  where 

to 

The  Council  invited  the  Commission  in  the  Hague  Programme  to  submit  a 
proposal  supplementing  the  existing  Schengen  evaluation  mechanism  which 
involves the experts of the Member States. 

5.3. 

Objectives, expected results and related indicators of the proposal in the context 
of the ABM framework 

The overall objectives is the correct application of the Schengen acquis in all areas of 
accompanying measures allowing to maintain an area without internal border control. 

Action  1:  Evaluation  either  through  on  the  spot  visits  or  on  the  basis  of 
questionnaires  covering  the  following  policy  areas:  external  borders,  visa,  police 
cooperation  at  internal  borders,  Schengen  Information  System,  data  protection, 
drugs, judicial cooperation in criminal matters.  

Indicator:  Assessment  of  the  correct  application  of  the  acquis  in  the  reports  (fully 
compliant, compliant but improvement necessary, non-compliant) 

Action 2: Evaluation through unannounced on the spot visits covering the first pillar 
areas of the Schengen acquis 

Indicator:  Assessment  of  the  correct  application  of  the  acquis  in  order  to  remedy 
specific  shortcomings.  A  report  will  be  established  after  each  visit  indicating  the 
compliancy with Community law. 

5.4.  Method of Implementation (indicative) 

(cid:59)  Centralised Management 

(cid:59) 

(cid:133) 

directly by the Commission 

indirectly by delegation to: 

(cid:133) 

executive Agencies 

EN 

28 

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(cid:133) 

bodies set up by the Communities as referred to in art. 185 of the 
Financial Regulation 

(cid:133) 

national public-sector bodies/bodies with public-service mission 

(cid:133) 

Shared or decentralised management 

(cid:133)  with Member states 

(cid:133)  with Third countries 

(cid:133) 

Joint management with international organisations (please specify) 

Relevant comments: 

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29 

   EN 

 
6. 

MONITORING AND EVALUATION 

6.1.  Monitoring system 

The proposed legislative instruments provide for the establishment of an evaluation 
mechanism  for  the  correct  application  of  the  Schengen  acquis.  The  correct 
application  of  the  acquis  will  be  assessed  in  the  evaluation  reports  indicating  the 
degree of compliance. The Commission will present a yearly report to the European 
Parliament and to the Council on the implementation of these instruments.  

6.2. 

Evaluation 

6.2.1.  Ex-ante evaluation 

6.2.2.  Measures taken  following  an intermediate/ex-post evaluation (lessons  learned from 

similar experiences in the past) 

6.2.3.  Terms and frequency of future evaluation 

7. 

ANTI-FRAUD MEASURES  

In  order  to  combat  fraud,  corruption  and  other  unlawful  activities,  the  provisions  of 
this  action.
Regulation 

(EC)  No  1037/1999  shall  apply  without 

restriction 

to 

EN 

30 

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8. 

DETAILS OF RESOURCES 

8.1. 

Objectives of the proposal in terms of their financial cost 

(Headings  of  Objectives,  actions  and 
outputs should be provided) 

Type of 
output 

Av. 
cost 

Year 2010 

Year 2011 

Year 2012 

Year 2013 

Year n+4 

Year n+5 and 
later 

TOTAL 

No. 
outputs 

Total 
cost 

No. 
outputs 

Total 
cost 

No. 
outputs 

Total 
cost 

No. 
outputs 

Total 
cost 

No. 
outputs 

Total 
cost 

No. 
outputs 

Total 
cost 

No. 
outputs 

Total 
cost 

Commitment appropriations in EUR million (to 3 decimal places) 

OPERATIONAL  OBJECTIVE  No.1 
30Verification 
acquis 
application…… 

Schengen 

of 

Action  1  announced  evaluation  visits 
(MS experts +COM experts) 

Output 1: mission 

0.0024 

pm 

IT equipment 

Action 2. 

Unannounced 
MS experts + COM experts 

evaluation 

visits 

pm 

pm 

200 

0.48 

240 

0.58 

240 

0.01 

0.01 

- Output 1: mission 

0.0024 

pm 

pm 

30 

0.07 

60 

0.14 

60 

TOTAL COST 

0.56 

0.73 

0.58 

0.01 

0.14 

0.73 

Calculation:  
Action 1: Missions: 1 person/week x 2400 € x 25 missions for the fi rst year and 30 mission for the subsequent years (8 experts per mission) 

30 

As described under Section 5.3 

EN 

31 

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 IT equipment necessary for the visit on the spot (laptop etc). 
Action 2: Missions: 1 person/week x 2400 € x  5 unannounced visits and 10 for the subsequent years (6 experts per mission) 

This appropriation is intended to cover the expenditure on the establishment and operation of a pool of experts to check the correct application of the 
Schengen acquis by the Member States. This expenditure includes the travel expenses of the Commission experts as well as of the Member States 
experts borne in accordance with the provisions laid down in the regulations. To these costs must be added the costs for supplies needed for the visit on 
the spot e.g. laptop for drafting the report 

EN 

32 

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8.2. 

Administrative Expenditure 

The  needs  for  human  and  administrative  resources  shall  be  covered  within  the 
allocation  that  can  be  granted  to  the  managing  DG  in  the  framework  of  the  annual 
allocation procedure in the light of budgetary constraints. 

8.2.1.  Number and type of human resources 

Types of post 

Staff to be assigned to management of the action using existing and/or 
additional resources (number of posts/FTEs) 

Year 
2010 

Year 
2011 

Year 
2012 

Year 
2013 

Year n+4  Year n+5 

4 

1 

6 

1 

6 

1 

Officials or 
temporary 
staff31 (XX 01 
01) 

A*/AD 

1 

B*, 
C*/AST 

Staff  financed32  by  art. 
XX 01 02 

Other  staff33  financed by 
art. XX 01 04/05 

TOTAL 

1 

5 

7 

7 

8.2.2.  Description of tasks deriving from the action 

8.2.3. 

Sources of human resources (statutory) 

(cid:57) 

(cid:133) 

(cid:57) 

(cid:57) 

(cid:133) 

Posts currently allocated to the management of the programme to be replaced 
or extended (1) 

Posts pre-allocated within the APS/PDB exercise for year 2009 

Posts  to  be  requested  in  the  next  APS/PDB  procedure  (2  for  2011  and  1  for 
2012) 

Posts  to  be  redeployed  using  existing  resources  within  the  managing  service 
(internal redeployment) (3) 

Posts required for year n although not foreseen in the APS/PDB exercise of the 
year in question 

31 
32 
33 

Cost of which is NOT covered by the reference amount 
Cost of which is NOT covered by the reference amount 
Cost of which is included within the reference amount 

EN 

33 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
8.2.4.  Other  Administrative  expenditure  included  in  reference  amount  (XX  01  04/05  – 

Expenditure on administrative management) 

Budget line 

(number and heading) 

EUR million (to 3 decimal places) 

Year 
n 

Year 
n+1 

Year 
n+2 

Year 
n+3 

Year 
n+4 

Year 
n+5  

and 
later 

TOTAL 

Technical 

1 
and 
assistance (including related staff costs) 

administrative 

Executive agencies34 

Other 

technical 

and 

administrative 

assistance 

- intra muros  

- extra muros 

Total  Technical  and  administrative 
assistance 

8.2.5.  Financial cost of human resources and associated costs not included in the reference 

amount 

EUR million (to 3 decimal places) 

Type of human resources 

Year 
2010 

Year 
2011 

Year 
2012 

Year 
2013 

Year 
n+4 

Year 
n+5 

and later 

Officials  and  temporary  staff 
(XX 01 01) 

1 

5 

7 

7 

Staff  financed  by  Art  XX  01 
02  (auxiliary,  END,  contract 
staff, etc.) 

(specify budget line) 

cost 

Total 
of  Human 
Resources  and  associated 
costs 
in  reference 
amount) 

(NOT 

0.37 

0.73 

0.85 

0.85 

34 

Reference should be made to the specific legislative financial statement for the Executive Agency(ies) 
concerned. 

EN 

34 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Calculation– Officials and Temporary agents 

Calculation– Staff financed under art. XX 01 02 

8.2.6. Other administrative expenditure not included in reference amount 

EUR million (to 3 decimal places)

Year 
2010 

Year 

2011 

Year 
2012 

Year 
2013 

Year 
n+4 

Year 
n+5 

and 
later 

TOTAL 

XX 01 02 11 01 – Missions 

XX 01 02 11 02 – Meetings & Conferences 

p.m. 

0.06 

0.1 

0.1 

XX 01 02 11 03 – Committees35  

XX 01 02 11 04 – Studies & consultations 

XX 01 02 11 05 - Information systems 

2 

Total 

Other  Management 

p.m. 

0.06 

0.1 

0.1 

Expenditure (XX 01 02 11) 

3  Other 

expenditure 

administrative 
including reference to budget line) 

nature 

of 

an 
(specify 

expenditure, 
than  human  resources  and 
in 

Total  Administrative 
other 
associated  costs  (NOT 
reference amount) 

included 

p.m. 

0.06 

0.1 

0.1 

35 

Specify the type of committee and the group to which it belongs. 

EN 

35 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
Calculation - Other administrative expenditure not included in reference amount 

EN 

36 

   EN