Proposal for a Council Decision on the establishment of an evaluation mechanism to monitor 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)105 final 

2009/0032 (CNS) 

Proposal for a 

COUNCIL DECISION 

on the establishment of an evaluation mechanism to monitor 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 Decision is to establish a legal framework for evaluating 
the correct application of those elements of the Schengen acquis that form part of EU law. It 
goes  together  with  the  proposal  for  a  Regulation  on  the  establishment  of  an  evaluation 
mechanism to verify the application of those elements of the Schengen acquis that are part of 
Community  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  —  though  not  only  these2.  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.  

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The establishment of an area of freedom, security and justice falls within the remit of the EC Treaty. 

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

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  with  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  announced  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  on  European  Union  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  and  drugs.  Data  protection  has  also  not 
always been subject to on-site evaluations.  

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Nevertheless, on-site visits are not limited to police cooperation and can cover all parts of the 
Schengen  acquis.  The  concrete  need  for  such  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. 

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

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

As  regards  the  methodology  for  priority-setting  based  on  risk  assessment  in  relation  to  the 
Schengen acquis on police cooperation and on judicial cooperation, the Commission does not 
yet see a role for Europol and Eurojust given their current mandates. However, if Europol or 
Eurojust produce risk analyses for the acquis in question, the Commission will certainly use 
these in order to plan the evaluations. 

Expertise of the Member States 

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, 
Member State experts will continue to play an important role in the evaluation process. The 
members of the team making an on-site visit will appoint a coordinating expert with overall 
responsibility for drafting the report. Giving this role to a Member States expert reflects the 
need to work in partnership to ensure effective evaluation. 

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. 

Experts of Europol or Eurojust can also participate in the evaluation as observers. Appropriate 
training should be provided for by the relevant bodies (e.g. Cepol) and funds should be made 
available to Member States for initiatives targeted at specific training in the field of Schengen 
acquis evaluations through existing financial instruments and their development. 

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 a visit should be limited to eight.  

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 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. 

Integration of the Schengen acquis within the European Union framework 

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The Commission will coordinate the evaluation process in fields covered by the EU Treaty in 
order  to  ensure  coherent  evaluation  of  all  parts  of  the  Schengen  acquis  that  apply  after  the 
lifting of internal border controls. The involvement of the Member State experts, in particular 
the appointment of a Member State expert to be responsible for coordination, takes account of 
the different responsibilities enshrined in the Treaties. 

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

It should also be recalled that the correct application of the provisions to be put into effect by 
Member States upon accession is not subject to the new evaluation mechanism. The correct 
application  of  these  provisions  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. 

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 

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Articles 30 and 31 of the Treaty on European Union. The intergovernmental mandate received 
Articles 30 and 31 of the Treaty on European Union (as well as Article 66 EC Treaty) 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 EU 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  EU  law  by  its  very  nature 
cannot  require  any  action  by  Member  States  to  transpose  it  into  national  law,  so  the 
instrument chosen is a Decision. 

4. 

BUDGETARY IMPLICATIONS 

The  Commission  has  prepared  a  common  financial  statement  annexed  to  the  Regulation  on 
the  establishment  of  an  evaluation  mechanism  to  verify  the  correct  application  of  the 
Schengen acquis under Title IV of the EC Treaty. This statement also applies to this Decision. 
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  VI  of  the  EU  Treaty,  so  the  system  of  ‘variable 
geometry’  provided  for  in  the  protocols  on  the  position  of  the  United  Kingdom  and  Ireland 
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:  The  United  Kingdom  is  taking  part  in  this  Decision,  in 
accordance with Article 5 of the Protocol integrating the Schengen acquis into the framework 
of  the  European  Union,  annexed  to  the  Treaty  on  European  Union  and  to  the  Treaty 
establishing the European Community, and Article 8(2) of Council Decision 2000/356/EC of 
29  May  2000  concerning  the  request  of  the  United  Kingdom  of  Great  Britain  and  Northern 
Ireland to take part in some provisions of the Schengen acquis3. 

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OJ L 131, 1.6.2000, p. 43. 

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Ireland is taking part in this Decision, in accordance with Article 5 of the Protocol integrating 
the  Schengen  acquis  into  the  framework  of  the  European  Union,  annexed  to  the  Treaty  on 
European Union and to the Treaty establishing the European Community, and Article (6)2 of 
Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part 
in some of the provisions of the acquis4. 

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

Article  3(1)  of  the  2003  Act  of  Accession5  and  Article  4(1)  of  the  2005  Act  of  Accession6 
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  checks  at  the  internal  borders,  are 
binding  from  the  date  of  accession  but  applicable  in  the  new  Member  States  only  after  the 
Council Decision referred to above. 

It should be underlined that the provisions listed respectively in Annex I and Annex II of the 
Acts  of  Accession  are  thus  applicable  upon  accession.  Nevertheless,  the  evaluation 
mechanism introduced by the present instrument will apply 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 acquis7. 

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 acquis8. 

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 

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OJ L 64 of 7.3.2002, p. 20. 
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. 

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Confederation’s  association  with  the  implementation,  application  and  development  of  the 
Schengen acquis which falls within the area referred to in Article 1, point G to I of Council 
Decision  1999/437/EC  read 
in  conjunction  with  Article  3  of  Council  Decision 
2008/262/JHA9. 

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. police cooperation).  

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.  

9 

OJ L 83, 26.3.2008, p. 5.(corrigendum OJ L 110, 22.4.2008, p. 16). 

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2009/0032 (CNS) 

Proposal for a 

COUNCIL DECISION 

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

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on European Union, and in particular Articles 30 and 31 thereof, 

Having regard to the proposal from the Commission10, 

Having regard to the opinion of the European Parliament 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The Hague programme11 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  199812,  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 monitor 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. 

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. 

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12 

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

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(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  Decision  constitutes  the  necessary  legislative  basis  for  implementing  the 
evaluation mechanism in respect of matters falling within the scope of the Treaty on 
European  Union.  Council  Regulation  XXXX/XXX/EC  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 establishing the European Community. 

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 established by this instrument respects the specific nature 
of the cooperation between police, customs and other law enforcement authorities, but 
also in the field of criminal justice. 

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.  

(10)  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.  Cepol)  and 
funds  should  be  made  available  to  Member  States  for  initiatives  targeted  at  specific 
training  in  the  field  of  Schengen  acquis  evaluations  through  the  existing  financial 
instruments and their development. 

(11)  The United Kingdom is taking part in this Decision, in accordance with Article 5 of 
the  Protocol  integrating  the  Schengen  acquis  into  the  framework  of  the  European 
Union,  annexed  to  the  Treaty  on  European  Union  and  to  the  Treaty  establishing  the 
European Community, and Article 8(2) of 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 provisions of the Schengen acquis13. 

(12) 

Ireland  is  taking  part  in  this  Decision,  in  accordance  with  Article  5  of  the  Protocol 
integrating the Schengen acquis into the framework of the European Union, annexed 
to  the  Treaty  on  European  Union  and  to  the  Treaty  establishing  the  European 
Community, and Article (6)2 of Council Decision 2002/192/EC of 28 February 2002 
concerning Ireland’s request to take part in some of the provisions of the acquis14. 

(13)  As regards Iceland and Norway, this Decision 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 

13 
14 

OJ L 131, 1.6.2000, p. 43. 
OJ L 64 of 7.3.2002, p. 20. 

EN 

11 

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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  G  to  I  of  Council  Decision  1999/437/EC16  of  17  May 
1999 on certain arrangements for the application of that Agreement. 

(14)  As  regards Switzerland,  this Decision 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 area referred to in Article 
1, point G to I, of Council Decision 1999/437/EC read in conjunction with Article 3 of 
the Council Decision 2008/149/JHA18. 

(15)  As regards Liechtenstein, this Decision 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 fall within the area referred to in Article 
1, point G to I, of Decision 1999/437/EC read in conjunction with Article 3 of Council 
Decision 2008/262/JHA19. 

HAS ADOPTED THIS DECISION: 

Article 1 

Purpose and scope 

This  Decision  establishes  an  evaluation  mechanism  to  monitor  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 

15 
16 
17 
18 
19 

OJ L 176, 10.7.1999, p. 36. 
OJ L 176, 10.7.1999, p. 31. 
OJ L 53, 27.2.2008, p. 52 . 
OJ L 53, 27.2.2008, p. 50. 
OJ L 83, 26.3.2008, p. 5.(corrigendum OJ L 110, 22.4.2008, p. 16). 

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For the purposes of this Decision the following definition applies: 

‘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 Title VI 
of the Treaty on European Union. 

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  Europol  to  participate  in  the  coordination  group  as 
observers. 

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 
Decision.  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.  Only 
announced on-site visits may be carried out. 

The specific areas that may be covered by evaluations are listed in the Annex to this 
Decision,  in  so  far  as  these  areas  relate  to  acts  or  provisions  that  have  their  legal 
bases  in  Title  VI  of  the  Treaty  on  European  Union.  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 

1. 

2. 

1. 

2. 

1. 

2. 

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13 

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period.  The  order  of  the  Member  States  to  be  evaluated  will  take  into  account  the 
threats  to  internal  security,  the  time  elapsed  since  the  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 
coordination group. 

Article 6 

Annual programme 

An  annual  evaluation  programme  detailing  the  evaluation  activities  shall  be 
established by the Commission in close cooperation with the coordination group 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). 

The  programme,  will  enumerate  the  Member  States  to  be  evaluated  in  the  coming 
year in accordance with the multiannual programme contain a list of the areas to be 
evaluated  and  include  the  questionnaire  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,  in  close  cooperation  with  the  coordination  group,  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  annual  programme  may  be  adapted  on  the  initiative  of  the  Commission  or  a 
Member  State,  if  necessary,  in  accordance  with  the  provisions  referred  to  in 
paragraph 2 and 3 . 

3. 

4. 

1. 

2. 

3. 

4. 

Article 7 

List of experts 

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14 

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1. 

2. 

3. 

4. 

1. 

2. 

3. 

4. 

The  Commission  shall  establish  a  list  of  experts  designated  by  Member  States, 
Europol and Eurojust for participation in on-site visits. The list shall be classified as 
restricted and communicated to the coordination group. 

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

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

Article 8 

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  7  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. Experts 
of Europol and Eurojust may participate only as observers.  

The  number  of  experts  participating  in  the  on-site  visits  may  not  exceed  eight 
persons. 

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. 

Prior  to  the  on-site  visits,  the  members  of  the  team  shall  agree  jointly  on  the 
appointment  of  one  of  the  Member  State  experts  as  the  coordinating  expert  for  the 
on-site  visit.  If  no  agreement  is  reached  before  the  on-site  visit  starts,  the 
coordinating expert shall be a Commission official. 

5. 

The coordinating expert shall be responsible for conducting the on-site visits. 

Article 9 

Conduct of on-site visits 

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15 

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1. 

2. 

3. 

4. 

5. 

6. 

7. 

1. 

2. 

1. 

a) 

b) 

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

The Member States shall be notified at least 2 months before the on-site visit is due 
to take place.  

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

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. 

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. 

Article 10 

Questionnaire 

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 11 

Evaluation reports 

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.  

If the evaluation is based only on the questionnaire, the report shall be drawn up by 
the Commission. 

In the case of on-site visits, the report shall be drawn up by the team during the visit. 
The coordinating expert appointed in accordance with Article 8(4) shall take overall 
responsibility for drafting the report as well as ensuring its integrity and quality. 

EN 

16 

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c) 

2. 

3. 

a) 

b) 

c) 

4. 

5. 

6. 

7. 

Each  report  shall  be  approved  by  all  experts  of  the  expert  team.  In  the  case  of 
disagreement the team shall endeavour to reach a compromise. Dissenting opinions 
may be included in the report.  

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.  

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

compliant; 

compliant but improvement necessary;  

non-compliant, with serious deficiencies. 

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. 

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

The  report  and  the  reply  of  the  Member  State  concerned  shall  be  presented  by  the 
coordinating expert to the coordination group. The Commission, after consulting the 
expert team, 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, in close cooperation 
the 
with 
implementation of the action plan.  

the  coordination  group,  may  schedule  on-site  visits 

to  monitor 

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, on its own initiative or at the request of a Member 
State, shall inform the Council as soon as possible. 

Article 12 

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 and the Member State concerned shall decide which part of the 
report can be made public. 

EN 

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Article 13 

Transitional provisions 

1. 

2. 

The  first  multiannual  programme  in  accordance  with  Article  5  and  the  first  annual 
programme  in  accordance  with  Article  6  shall  be  established  six  months  after  the 
entry into force of this Decision. The starting dates for both programmes shall be one 
year after the entry into force of this Decision.  

Member  States  shall  designate  their  experts  in  accordance  with  Article  7  not  later 
than three months after the entry into force of this Decision. 

Article 14 

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  Decision.  The  report  shall  be  made  public  and 
shall include information on: 

–  the evaluations carried out during the previous year, and  

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

actions. 

Article 15 

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 Decision. 

Article 16 

Entry into force  

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

Done at Brussels,  

For the Council 
The President 

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•  Police cooperation 

ANNEX  

–  Law enforcement and police cooperation 

–  Bilateral agreements on police cooperation at internal borders 

–  Operational cooperation  

–  Mutual assistance, mechanisms for hot pursuit and surveillance 

–  Mechanism  for  cross-border  cooperation,  including  mutual  assistance  and 

exchange of information 

–  Cooperation involving liaison officers 

–  Transmission of information in border areas 

–  Direct cooperation at internal borders between services of neighbouring Member 

States 

•  Data protection  

–  Legal,  organisational  and  technical  aspects  of  the  protection  of  facilities  and 

personal data 

–  Data subject rights and complaints handling 

–  Supervisory role (on-site visits) 

–  Cooperation with other Schengen Data Protection Authorities (DPAs) 

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

•  Schengen Information System (SIS) / Sirene 

–  Security of data and 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 

•  Judicial cooperation in criminal matters 

–  Mutual assistance 

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–  Extradition 

•  Drugs 

–  Legal,  organisational  and  technical  measures  against  drug  trafficking  at  external 

borders 

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20 

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