Amended proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the establishment of an evaluation and monitoring mechanism to verify the application of the Schengen acquis
Date: 2011-09-16
Institutions: European Commission
Subjects: Schengen Information System, area of freedom, security and justice, border control, external border of the EU, internal border of the EU

EUROPEAN COMMISSION 

Brussels, 16.9.2011 
COM(2011) 559 final 

2010/0312 (COD) 

Amended proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

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

 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

Schengen governance – strengthening the area without internal border control 

As  regards  the  context  and  rationale  for  the  amendments  contained  in  the  present  proposal, 
and  for  a  detailed  explanation  of  how  they  are  intended  to  function  in  practice,  reference  is 
made  to  the  Commission  Communication  to  the  European  Parliament,  the  Council,  the 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions  entitled  'Schengen 
governance  –  strengthening  the  area  without  internal  border  control',  which  is  adopted 
together with this proposal.  

1.2. 

Legislative changes 

On 16 November 2010, the Commission adopted a proposal for a Regulation of the European 
Parliament and of the Council on the establishment of an evaluation mechanism to verify the 
application  of  the  Schengen  acquis1.  This  proposal  strengthens  the  Schengen  evaluation 
mechanism, in particular by streamlining the follow up by requesting the evaluated Member 
State to submit an action plan to remedy the weaknesses identified and to regularly report on 
the implementation of such an action plan until all weaknesses have been remedied. In case of 
serious deficiencies having an impact on the overall level of security of one or more Member 
States, it is foreseen to inform the Council and the European Parliament, thus exercising peer 
pressure at the highest political level on the failing Member State to comply with the rules.  

A  Member  State  shall  be  evaluated  at  least  once  within  a  five  year  period;  however,  the 
planning might be adapted in accordance with the needs and the situations identified on the 
ground.  Also,  unannounced  visits  may  be  carried  out  in  order  to  monitor  the  correct 
implementation of all accompanying measures.  

In  order  to  provide  for  the  necessary  legal  framework  to  respond  to  the  invitation  of  the 
European Council of 23-24 June 2011 to further strengthen the Schengen evaluation system 
and  to  introduce  a  safeguard  clause  to  respond  to  truly  critical  situations  where  a  Member 
State is no longer able to comply with its obligations under the Schengen rules as explained in 
detail  in  the  Communication  referred  to  in  point  1.1,  the  Commission  hereby  amends  its 
proposal by providing for additional support at the Union and national level, strengthening the 
support given by Frontex and by introducing the possibility of a Union-based mechanism for 
the reintroduction of border control at internal borders where a Member State is persistently 
neglecting  its  obligation  to  control  its  section  of  the  external  border,  and  insofar  as  the 
circumstances  would  be  such  as  to  constitute  a  serious  threat  to  public  policy  or  to  internal 
security at the Union or national level. The introduction of such a mechanism also implies the 
modification of the Schengen Borders Code which is being presented at the same time as this 
proposal.  

The need to modify the current Schengen evaluation mechanism as such has been explained 
in  detail  in  the  above-mentioned  proposal  of  16  November  2010.  Although  the  latter  is 
proposal is hereby replaced by the present one, the reasons for presenting the November 2010 

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COM (2010) 624 of 16.11.2010 

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proposal remain unchanged; the Commission therefore refrains from reproducing the detailed 
justification in the current amended proposal. As the initial proposal has not yet been adopted 
by  the  legislators  (the  European  Parliament  has  not  yet  adopted  a  first  reading  position  in 
accordance  with  Article  294(3)  TFEU  on  the  proposal),  the  amendment  is  included  in  the 
overall  text  of  that  initial  proposal2,  which  remains  unchanged  except  for  the  changes 
concerning the support to be given to a Member State and possible reintroduction of border 
control  at  internal  borders  (Articles  14  and  15  as  well  as  a  reference  to  "monitoring" 
throughout  the  text)  and  for  certain  adaptation  on  the  implementing  powers  given  to  the 
Commission  (Article  5,  8,  13  and  17).  These  adaptations  are  necessary  as  the  relevant 
horizontal  rules  on  'comitology'  have  been  modified  after  the  presentation  of  the  initial 
proposal by Regulation (EU) No 182/2011 of the European Parliament and of the Council of 
16  February  2011  laying  down  the  rules  and  general  principles  concerning  mechanisms  for 
control by Member States of the Commission's exercise of implementing powers3. Moreover 
some further adaptations are made to the text, including those relating to the role of Frontex 
(Article 6), Europol (Article 8) and reporting to the European Parliament and Council (Article 
19).  

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

The first discussions on the Schengen evaluation proposal in the Council and in the European 
Parliament, as well as the latter's resolution of 7 July 20114, show that there is broad political 
support  for  the  notion  that  a  functioning  mechanism  needs  to  be  accompanied  by  tools 
allowing  for  a  serious  deficiency  in  the  application  of  the  acquis  by  a  Member  State  to  be 
effectively responded to.  

In  its  Communication  on  migration5  the  Commission  suggested  the  possibility  of  the 
introduction  of  a  mechanism  allowing  for  a  decision  at  the  European  level  defining  which 
Member States would exceptionally reintroduce border control at internal borders and for how 
long. The mechanism should only be used as a last resort after other (emergency) measures 
have been taken to stabilise the situation at the relevant external border section either at the 
European level, in a spirit of solidarity, and/or at national level to ensure better compliance 
with the common rules. 

This idea was welcomed by the Justice and Home Affairs Council on 12 May 2011, and by 
the European Council at its meeting on 23-24 June 2011 where it called for a mechanism to be 
'introduced in order to respond to exceptional circumstances putting the overall functioning of 
the  Schengen  cooperation  at  risk,  without  jeopardising  the  principle  of  free  movement  of 
persons.' 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

This proposal constitutes a development of the policy on internal borders in accordance with 
Article 77 (2) (e) of the Treaty on the Functioning of the European Union (TFEU). Article 77 

2 
3 
4 
5 

Amendments are highlighted in bold and are underlined. 
OJ L 55 of 28.2.2011, p. 13. 
P7_TA(2011)0336 
COM (2011) 248 of 4.5.2011 

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provides for the abolition of border control at internal borders as the ultimate objective of an 
area of free movement of persons within the European Union, as laid down in Article 26 of 
the  TFEU.  The  abolition  of  border  control  at  internal  borders  must  be  accompanied  by 
measures in the field of external borders, visa policy, the Schengen Information System, data 
protection,  police  cooperation,  and  judicial  cooperation  in  criminal  matters.  Correct 
application of these measures makes it possible to maintain an area without border control at 
internal  borders.  Evaluation  and  monitoring  of  the  correct  application  of  these  measures 
therefore serves the ultimate policy objective of maintaining the area free of border control at 
internal  borders.  Measures  aimed  at  mitigating  the  adverse  impact  of  persistent  serious 
deficiencies in a Member State's application of the Schengen acquis, including the possibility 
of resorting to the exceptional temporary reintroduction of border control at internal borders 
as  a  measure  of  last  resort  in  circumstances  where  the  deficiencies  would  be  such  as  to 
constitute a serious threat to public policy or to internal security at the Union or national level, 
likewise serve to further the attainment of this ultimate objective. 

The  proposal  for  the  establishment  of  a  Schengen  evaluation  mechanism  presented  in 
November  2010  contains  all  necessary  information  on  the  budgetary  implications,  which 
remain unchanged.  

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2010/0312 (COD) 

Amended proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

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

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 77 (2) (e) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the nNational Parliaments, 

Acting  in  accordance  with  the  procedure  laid  down  in  Article  294  of  the  Treaty  ordinary 
legislative procedure, 

(1) 

(2) 

(3) 

The  Schengen  area  without  internal  border  controls  border  control  at  internal 
borders  relies  on  effective  and  efficient  application  by  the  Member  States  of 
accompanying  measures  in  the  areas  of  external  borders,  visa  policy,  the  Schengen 
Information  System, 
judicial 
cooperation in criminal matters and drugs policies. 

including  data  protection,  police  cooperation, 

By  decision  of  the  Executive  Committee  of  16  September  19986,  a  Standing 
Committee  on  the  evaluation  and  implementation  of  Schengen  was  set  up.  The 
Standing  Committee  was  given  the  mandate,  first,  to  establish  whether  all  the 
preconditions for lifting internal border controls border control at internal borders 
with  a  candidate  State  have  been  fulfilled  and,  second,  to  ensure  that  the  Schengen 
acquis is properly applied by the States already implementing the acquis in full. 

A  specific  evaluation  and  monitoring  mechanism  to  verify  application  of  the 
Schengen  acquis  is  necessary  given  the  need  to  ensure  high  uniform  standards  in 
application of the Schengen acquis in practice and to maintain a high level of mutual 
trust  between  those  Member  States  that  form  part  of  an  area  without  internal  border 
controls  border  control  at  internal  borders.  Such  a  mechanism  should  build  upon 
close cooperation between the Commission and those Member States.  

(4) 

The Hague Programme7 invited the Commission ‘to submit, as soon as the abolition of 
controls at internal borders has been completed, a proposal to supplement the existing 

6 
7 

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

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(5) 

(6) 

(7) 

Schengen  evaluation  mechanism  with  a  supervisory  mechanism,  ensuring  full 
involvement of Member States experts, and including unannounced inspections’.  

The Stockholm Programme8 ‘considers that the evaluation of the Schengen area will 
continue  to  be  of  key  importance  and  that  it  therefore  should  be  improved  by 
strengthening the role of Frontex in this field’.  

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. 

The  experience  gathered  during  previous  evaluations  demonstrates  the  need  to 
maintain a coherent evaluation and monitoring mechanism covering all areas of the 
Schengen  acquis  except  those  where  a  specific  evaluation  mechanism  already  exists 
within EU law.  

(8)  Member States should be closely involved in the evaluation and monitoring process. 
Measures for implementation of this Regulation should be adopted by the management 
procedure, as provided for in Article 4 of Council Decision 1999/468/EC of 28 June 
1999 laying down the procedures for the exercise of implementing powers conferred 
on the Commission. 

In order to ensure uniform conditions for the implementation of this Regulation, 
implementing  powers  should  be  conferred  on  the  Commission.  These  powers 
should  be  exercised  in  accordance  with  Regulation  (EU)  No  182/2011  of  the 
European  Parliament  and  of  the  Council  of  16  February  2011  laying  down  the 
rules  and  general  principles  concerning  mechanisms  for  control  by  Member 
States  of  the  Commission's  exercise  of  implementing  powers9.  In  view  of  the 
terms  of  Article  2(2)(b)(iii)  of  that  Regulation,  the  examination  procedure  is 
applicable. 

(9) 

The  evaluation  and  monitoring  mechanism  should  set  up  transparent,  efficient  and 
clear rules on the method to be applied for the evaluations, the use of highly qualified 
experts  for  on-site  visits  and  the  follow-up  to  the  findings  of  the  evaluations.  In 
particular, the method should provide for unannounced on-site visits to supplement the 
announced on-site visits, notably with regard to border controls and visas.  

(10)  The  evaluation  and  monitoring  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. 

(11)  The  evaluation  and  monitoring  should  pay  particular  attention  to  respect  of 
fundamental rights when applying in the application of the Schengen acquis. 

8 
9 

Council document 17024/09, adopted by the European Council on 10/11 December 2009. 
OJ L 55 of 28.2.2011, p. 13. 

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(12)  The  evaluation  should  guarantee  that  the  Member  States  apply  the  Schengen 
rules effectively in accordance with fundamental principles and norms. Therefore 
the  evaluation  encompasses  all  relevant  legislation  and  operational  activities 
contributing  to  the  functioning  of  an  area  without  border  control  at  internal 
borders. 

(1213) The European Agency for the Management of Operational Cooperation at the External 
Borders  of  the  Member  States  of  the  European  Union10  (hereinafter  referred  to  as 
‘Frontex’) should support 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. 

(14)  The  evaluation  and  monitoring  mechanism  should  also  make  it  possible  for 
serious  deficiencies  in  the  application  of  the  acquis  to  be  addressed  by  ensuring 
that  appropriate  support  would  be  provided  by  the  Commission  with  the 
technical  assistance  of  Frontex,  Europol  or  other  relevant  European  Union 
Agencies. As a measure of last resort, and insofar as the circumstances would be 
such as to constitute a serious threat to public policy or to internal security at the 
Union  or  national  level,  the  possibility  to  reintroduce  border  control  at  internal 
borders  to  the  extent  and  for  the  duration  necessary  to  mitigate  the  adverse 
consequences flowing from the deficiencies should be provided for. 

(1315) 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  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 evaluation of  the Schengen acquis from  the existing financial 
instruments and by development thereof. 

(1416) In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark,  as 
annexed to the Treaty on European Union and to the Treaty on the Functioning of the 
European  Union,  Denmark  is  not  taking  part  in  adoption  of  this  Regulation  and  is 
therefore not bound by it or subject to application thereof. Given that this Regulation 
builds  upon  the  Schengen  acquis,  under  Title  V  of  Part  Three  of  the  Treaty  on  the 
Functioning of the European Union, Denmark should, in accordance with Article 4 of 
that  Protocol,  decide  within  six  months  after  adoption  of  this  Regulation  whether  it 
will implement it in its national law. 

(1517) This  Regulation  constitutes  a  development  of  provisions  of  the  Schengen  acquis,  in 
which the United Kingdom is not participating, 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 
acquis11.  The  United  Kingdom  is  therefore  not  taking  part  in  adoption  of  this 
Regulation and is not bound by it or subject to application thereof.  

10 
11 

Council Regulation (EC) No 2007/2004 of 26 October 2004 (OJ L 349, 25.11.2004, p. 1). 
OJ L 131, 1.6.2000, p. 43. 

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(1618) This  Regulation  constitutes  a  development  of  provisions  of  the  Schengen  acquis,  in 
which Ireland is not participating, in accordance with Council Decision 2002/192/EC 
of  28  February  2002  concerning  Ireland’s  request  to  take  part  in  some  of  the 
provisions of the Schengen acquis12. Ireland is therefore not taking part in adoption of 
this Regulation and is not bound by it or subject to application thereof.  

(1719) As  regards  Iceland  and  Norway,  this  Regulation  constitutes  a  development  of 
provisions of the Schengen acquis, as provided for by 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 acquis13.  

(1820) As regards Switzerland, this Regulation constitutes a development of provisions of the 
Schengen acquis, as provided for by the Agreement 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 acquis14.  

(1921) As  regards  Liechtenstein,  this  Regulation  constitutes  a  development  of  provisions  of 
the  Schengen  acquis,  as  provided  for  by  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 acquis15. 

(2023) As regards Cyprus, this Regulation constitutes an act building on the Schengen acquis 
or otherwise related to it, as provided for by Article 3(2) of the 2003 Act of Accession. 

(2124) As  regards  Bulgaria  and  Romania,  this  Regulation  constitutes  an  act  building  on  the 
Schengen acquis or otherwise related to it, as provided for by Article 4(2) of the 2005 
Act of Accession. 

(2225) Experts  from  Cyprus,  Bulgaria  and  Romania  should  nevertheless  participate  in  the 

evaluation of all parts of the Schengen acquis, 

HAVE ADOPTED THIS REGULATION: 

Article 1 

Purpose and scope 

This Regulation establishes an evaluation and monitoring mechanism to verify application of 
the Schengen acquis in the Member States to which the Schengen acquis applies in full.  

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13 
14 
15 

OJ L 64, 7.3.2002, p. 20. 
OJ L 176, 10.7.1999, p. 36. 
OJ L 53, 27.2.2008, p. 52. 
OJ L 160 of 18.6.2011, p. 19. 

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Experts from the Member States which, in accordance with the relevant Act of Accession, do 
not yet fully apply the acquis shall nevertheless participate in evaluation and monitoring of 
all parts of the acquis. 

Article 2 

Definitions 

For the purpose of this Regulation, 

‘Schengen  acquis’  means  the  provisions  of  the  Schengen  acquis,  as  integrated  into  the 
European Union framework by the Protocol annexed to the Treaty on European Union and to 
the Treaty on the Functioning of the European Union, together with the acts building upon it 
or otherwise related to it.  

Article 3 

Responsibilities 

1. 

2. 

The  Commission  shall  be  responsible  for  implementation  of  this  evaluation  and 
monitoring  mechanism  in  close  cooperation  with  the  Member  States  and  with  the 
support of European bodies, as specified in this Regulation. 

Member States shall cooperate with the Commission to allow it to carry out the tasks 
conferred  on  it  by  this  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 on the area covered by the evaluation. On-site 
visits  and  questionnaires  may  be  used  either  independently  or  in  combination  in  relation  to 
specific  Member  States  and/or  specific  areas.  On-site  visits  may  be  announced  or 
unannounced. 

Article 5 

Multiannual programme 

1. 

A  multiannual  evaluation  programme  covering  a  period  of  five  years  shall  be 
established  by  the  Commission,  in  accordance  with  the  procedure  referred  to  in 
Article 15 (2), not later than six months before the start of the next five-year period. 
Those  implementing  acts  shall  be  adopted  in  accordance  with  the  examination 
procedure referred to in Article 17 (2). 

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2. 

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 in which the Member States are to be evaluated shall be based on a 
risk  analysis  taking  into  account  the  migratory  pressure,  internal  security,  the  time 
which  has  elapsed  since  the  previous  evaluation  and  the  balance  between  the 
different parts of the Schengen acquis to be evaluated.  

3. 

The  multiannual  programme  may  be  adapted,  if  necessary,  in  accordance  with  the 
procedure referred to in paragraph 1. 

Article 6 

Risk analysis 

1. 

2. 

1. 

2. 

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

By  the  same  deadline  as  stated  in  paragraph  1,  Frontex  shall  submit  to  the 
Commission  a  separate  risk  analysis  making  recommendations  for  priorities  for 
evaluations to be implemented in the form of unannounced on-site visits in the next 
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.  The  Commission  may  at  any  time  request  Frontex  to 
submit  to  it  a  risk  analysis  making  recommendations  for  evaluations  to  be 
implemented in the form of unannounced on-site visits. 

Article 7 

Questionnaire 

The  Commission  shall  send  a  standard  questionnaire  to  the  Member  States  to  be 
evaluated  in  the  next  year  by  not  later  than  15  August  of  the  previous  year.  The 
standard questionnaires shall cover the relevant legislation and the organisational and 
technical means available for implementation of the Schengen acquis and statistical 
data on each field of the evaluation.  

Member  States  shall  provide  their  replies  to  the  questionnaire  to  the  Commission 
within  six  weeks  of  communication  of  the  questionnaire.  The  Commission  shall 
make the replies available to the other Member States.  

Article 8 

Annual programme 

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1. 

2. 

3. 

4. 

1. 

2. 

3. 

4. 

5. 

Taking  into  account  the  risk  analysis  provided  by  Frontex  in  accordance  with 
Article 6,  the  replies  to  the  questionnaire  referred  to  in  Article  7  and,  where 
appropriate,  Europol  or  other  relevant  sources,  an  annual  evaluation  programme 
shall  be  established  by  the  Commission  by  not  later  than  30  November  of  the 
previous year. The programme may provide for evaluation of: 

–  application of the acquis or parts of the acquis by one Member State, as specified 

in the multiannual programme; 

and, in addition, where relevant: 

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

evaluations);  

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

The  first  section  of  the  programme,  adopted  in  accordance  with  the  procedure 
referred to in Article 15 (2), shall list the Member States to be evaluated in the next 
year in accordance with the multiannual programme. This section shall list the areas 
to  be  evaluated  and  the  on-site  visits.  This  section  shall  be  adopted  by  the 
Commission. Those implementing acts shall be adopted in accordance with the 
examination procedure referred to in Article 17 (2). 

The Commission shall draw up the second section of the programme, which shall list 
the unannounced on-site visits to be carried out in the next 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 paragraphs 
2 and 3. 

Article 9 

List of experts  

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

Member States shall indicate the 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 10(5). 

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

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have  received.  In  addition,  Member  States  shall  ensure  that  the  experts  receive 
continuous training in order to continue to comply with these requirements. 

Article 10 

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  9  and 
Commission  representativesofficials.  The  Commission  shall  make  an  effort  to 
ensure  the  geographical  balance  and  competence  of  the  experts  in  each  team. 
Member States’ experts may not participate in an on-site visit to the Member State 
where they are employed. 

The  Commission  may  shall  invite  Frontex,  and  where  appropriate,  Europol, 
Eurojust or other relevant European bodies to designate a representative to take part 
as an observer in a visit concerning an area covered by their mandate. 

The  number  of  experts  (including  observers)  participating  in  evaluation  visits  may 
not  exceed  eight  persons  for  announced  on-site  visits  and  six  persons  for 
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  four  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  Member  States  whose  experts  have  been 
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. 

The leading experts for on-site visits shall be a Commission official representative 
and an expert from a Member State, who shall be appointed prior to the on-site visit 
jointly by the members of the team of experts.  

Article 11 

Conduct of on-site visits 

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 State concerned shall be notified:  

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

–  at least 48 hours before an unannounced on-site visit takes place. 

1. 

2. 

3. 

4. 

5. 

6. 

1. 

2. 

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3. 

4. 

5. 

6. 

7. 

The  members  of  the  on-site  visit  team  shall  each  carry  identification  authorising 
them to conduct 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  that  the  team  has  access  to  all  areas, 
premises and documents required for the evaluation. It shall ensure that the team is 
able to exercise its mandate to verify the activities in the areas to be evaluated. 

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

In  the  case  of  announced  on-site  visits,  the  Commission  shall  provide  the  relevant 
Member States with the names of the experts in 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  travel  and 
accommodation arrangements for their experts. The travel and accommodation costs 
for experts participating in the visits shall be reimbursed by the Commission. 

Article 12 

Verification of the free movement of persons at internal borders 

Notwithstanding  Article  10,  teams  for  unannounced  on-site  visits  to  verify  the  absence  of 
controls at internal borders shall consist of Commission official representatives only. 

Article 13 

Evaluation reports 

1. 

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

(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  representative  shall  take  overall 
responsibility  for  drafting  the  report  and  ensuring  its  integrity  and  quality.  In 
case  of  disagreement,  the  team  shall  endeavour  to  reach  a  compromise. 
Dissenting opinions may be included in the report. 

2. 

The report shall analyse the qualitative, quantitative, operational, administrative and 
organisational aspects, as appropriate, and shall list any shortcomings or weaknesses 
established  during  the  evaluation.  The  report  shall  contain  recommendations  for 
remedial action and deadlines for implementing them.  

3. 

One of the following classifications shall be given to each finding in the report:  

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(a) 

compliant; 

(b) 

compliant but improvement necessary; 

(c) 

non-compliant. 

4. 

5. 

6. 

The Commission shall communicate the draft report to the Member State concerned 
within six weeks of the on-site visit or of receipt of the replies to the questionnaire, 
as  appropriate.  The  Member  State  concerned  shall  provide  its  comments  on  the 
report within two weeks. 

The Commission expert shall present the draft report and the reply from the Member 
State to the committee established in accordance with Article 15 17. Member States 
shall be invited to comment on the replies to the questionnaire, the draft report and 
the comments by the Member State concerned.  

On  this  basis,  the  Commission  shall  decide  on  the  evaluation  report  and 
recommendations  addressing  the  classification  of  the  findings  referred  to  in 
paragraph 3 shall  be adopted  by the Commission  in accordance  with the procedure 
referred  to  in  Article  15  (2).  Those  implementing  acts  shall  be  adopted  in 
accordance with the examination procedure referred to in Article 17 (2). 

Within  one  month  after  adoption  of  the  report,  the  Member  State  concerned  shall 
provide the Commission with an action plan to remedy any weaknesses identified. 

After consulting the team of experts, the Commission shall present its assessment of 
the  adequacy  of  the  action  plan  to  the  committee  established  in  accordance  with 
Article 15 17, within one month of  receiving  the action plan from the Member 
State. Member States shall be invited to comment on the action plan.  

The Member State concerned shall report to the Commission on implementation of 
the  action  plan  within  six  months  of  receipt  of  the  evaluation  report  and  shall 
thereafter  continue  to  report  every  three  months  until  the  action  plan  is  fully 
implemented.  Depending  on  the  severity  of  the  weaknesses  identified  and  the 
measures taken to remedy them, the Commission may schedule announced visits in 
accordance with the procedure referred to in Article 15 (2) to verify implementation 
of  the  action  plan  shall  decide  on  announced  visits  to  verify  implementation  of 
the  action  plan.  Those  implementing  acts  shall  be  adopted  in  accordance  with 
the  examination  procedure  referred  to  in  Article  17(2).  The  Commission  may 
also schedule unannounced on-site visits. 

The Commission shall inform the committee established in accordance with Article 
15 17, on a regular basis, about the implementation of the action plan.  

7. 

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

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Article 14 

Measures at the external borders and Frontex support 

1. 

Where  serious  deficiencies  in  the  carrying  out  of  external  border  control  or 
return  procedures  are  identified  in  the  evaluation  report,  and  with  a  view  to 
ensuring compliance with the recommendations referred to in Article 13 (5), the 
Commission may decide to request the evaluated Member State to take certain 
specific measures, which may include one or more of the following:  

– 

– 

– 

initiation  of  the  deployment  of  European  Border  Guard  teams  in 
accordance with the provisions of the Frontex Regulation; 

submission  of  its  strategic  decisions  on  risk  assessment  and  plans  for  the 
deployment of equipment for approval to Frontex; 

closing of a specific border crossing point for a limited period of time until 
the weaknesses are remedied. 

Those  implementing  acts  shall  be  adopted  in  accordance  with  the  examination 
procedure referred to in Article 17(2). 

The  Commission  shall  inform  the  committee  established  in  accordance  with 
Article  17  on  a  regular  basis  on  the  progress  in  the  implementation  of  the 
measures  referred  to  in  paragraph  1  and  on  its  impact  on  the  deficiencies 
identified. 

Article 15 

Serious deficiencies related to external border control or return procedures 

Notwithstanding the six month period for reporting on the implementation of an 
action plan referred to in Article 13 (6), if the evaluation report referred to in 
Article 13 (5) concludes that the evaluated Member State is seriously neglecting 
its  obligation  to  carry  out  external  border  control  or  return  procedures,  the 
evaluated Member State shall report on the implementation of the action plan 
within three months of receipt of the evaluation report.  

If,  following  the  three  months  period  referred  to  in  paragraph  1,  the 
Commission  finds  that  the  situation  persists,  Articles  23,  23a  and  26  of  the 
Schengen Borders Code apply. 

2. 

1. 

2. 

Article 14 16 

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 

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restricted. The Commission, after consulting the Member State concerned, shall decide which 
part of the report can be made public. 

Article 15 

Committee 

1. 

2. 

1. 

2. 

1. 

2. 

3. 

The Commission shall be assisted by a committee made up of representative of the 
Member States and chaired by the representative of the Commission.  

Where  reference  is  made  to  this  paragraph,  Articles  4,  7  and  8  of  Decision 
1999/468/EC shall apply. 

Article 17 

Committee 

The  Commission  shall  be  assisted  by  a  committee.  That  committee  shall  be  a 
committee within the meaning of Regulation (EU) No 182/2011. 

Where  reference  is  made  to  this  paragraph,  Article  5  of  Regulation  (EU)  No 
182/2011 shall apply. 

Article 1618 

Transitional provisions 

The  first  multiannual  programme  in  accordance  with  Article  5  and  the  first  annual 
programme  in  accordance  with  Article  8  shall  be  established  six  months  after  this 
Regulation  enters  into  force.  The  starting  dates  for  both  programmes  shall  be  one 
year after this Regulation enters into force.  

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 this Regulation enters 
into force. 

Member  States  shall  designate  their  experts  in  accordance  with  Article  9  not  later 
than three months after this Regulation enters into force. 

Article 1719 

Information of the European Parliament and the Council 

The  Commission  shall  inform  the  European  Parliament  and  the  Council  of  the 
recommendations adopted by the Commission in accordance with Article 13(5). 

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Article 1820 

Reporting to the European Parliament and the Council 

The Commission shall present a yearly report to the European Parliament and the Council 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, and 

–  the conclusions drawn from each evaluation and the state of play with regard to remedial 

action. 

Article 1921 

Repeal 

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 with effect from one year after the entry into force of this Regulation. 

Article 2022 

The  Council  may  decide  to  carry  out  the  Schengen  evaluations  referred  to  in  Acts  of 
Accession  concluded  after  the  entry  into  force  of  this  Regulation  in  accordance  with  this 
Regulation. 

Article 2123 

Entry into force  

This Regulation shall enter into force on the twentieth day following that of 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 on the Functioning of the European Union Treaties. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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