REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Second biannual report on the functioning of the Schengen area_1 May 2012 - 31 October 2012
Date: 2012-11-23
Institutions: European Commission
Subjects: EU visa policy, Frontex, Schengen Agreement, border control, data collection, external border of the EU, illegal migration, migratory movement













EUR-Lex - 52012DC0686 - EN











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52012DC0686

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Second biannual report on the functioning of the Schengen area_1 May 2012 - 31 October 2012 /* COM/2012/0686 final */









REPORT FROM THE COMMISSION TO THE
EUROPEAN PARLIAMENT AND THE COUNCIL
Second biannual report on the functioning
of the Schengen area
1 May 2012 - 31 October 2012
1.           Introduction
As announced by
the Commission on 16 September 2011 in its Communication on strengthening
Schengen governance[1]
and supported by the Justice and Home Affairs Council/Mixed Committee on 8
March 2012, the Commission on 16 May 2012 adopted its first biannual report to
the European Parliament and to the Council on the functioning of the Schengen
area[2]. Consequently, it was
discussed in the Council meeting on 7 June 2012 and in the plenary session of
the European Parliament on 4 July 2012. This second report covers the period 1
May 2012 – 31 October 2012. 
2.           Situational picture
2.1.        Situation at the Schengen
external borders 
During April-June 2012, approximately 23 000
irregular border crossings were detected, consisting of mixed migration flows.
This constitutes a 44 % decrease within the EU compared to the same period in
the previous year, in the midst of the Arab Spring. In
contrast, Greece reported a 29% increase compared to the year before. The majority of all detections, 56%, were
made at the land border between Greece and Turkey, which means that this border
section remains the hotspot for irregular migration into the EU. The most commonly detected nationality at
this part of the border was Afghan nationals, followed by Bangladeshi and
Syrians.[3] 
However, following the Greek launch in
August 2012 of operation Shield, in which Greece has redeployed some 1 800
border guards to the Greek-Turkish land border, the previous strong increase in
the number of detected irregular border-crossings has been followed by a
significant decrease. So far, Greek authorities have reported a substantial
decrease in the number of apprehensions in the Evros area.
Following the
deteriorating humanitarian and security situation in Syria, there has been a
significant increase of Syrians in detections of irregular border-crossings as well as irregular stays, primarily in Greece.
Furthermore, Syrians are ranked second among applicants for international
protection, mostly in Sweden and Germany, where Syrian nationals claiming
asylum are granted protection. Any further deterioration of the situation in
Syria is likely to result in a further increased number of persons seeking
refuge in neighbouring countries and, eventually, in EU Member States.[4] 
2.2.        Situation within the
Schengen area
Although Greece is
currently the main entry point for irregular migrants, it is a transit rather
than destination country for the majority of migrants. The secondary movements
are reflected in the detections of irregular border-crossings throughout the
Western Balkan land borders, the Italian sea borders and flights from Greek airports
to many major EU airports[5].
The most recent information-gathering
exercise on migration flows within the EU/Schengen area, operation Balder, was carried out
from 16 to 22 April 2012, in 24 Member States[6] as well
as in Norway and Switzerland. The aim of the
operation was to collect data on migration flows in the Member States,
regarding in particular migratory pressures in various countries, main routes
used by irregular migrants, main destination countries of migration, countries
of origin of irregular migrants and places of detection of irregular migrants
and means of transport used.
According
to the data reported by the participating Member States, compiled by the Danish
National Police[7] and communicated in June 2012, 2 396 third country nationals from 115 different countries were
apprehended during this week. The largest number of irregular migrants within
the Schengen area were found in Germany (520 persons), Spain (369 persons) and
Austria (178 persons) and had entered the EU in Spain (207 persons) and Greece
(180 persons). The main countries of destination were Spain (341 persons),
Germany (281 persons) and Austria (175 persons).
Although providing some valuable basic
information, the data collected in this type of operations is rather
incomplete, as it covers only a couple of weeks per year and not all Member
States participate. Hence, as noted by the Commission in its first biannual
report on the functioning of the Schengen area and by the JHA Council/Mixed
Committee on 7 June 2012, there exists a need for improved data collection and analysis of the
irregular migratory movements within the EU. As Member
States have agreed that the Commission should play a role in this and that
existing structures should be used to the greatest extent possible, the Commission,
together with Frontex, invited Member States to an expert meeting on 2 October
2012 to discuss how a better situational awareness could best be achieved. Member
States confirmed the need for data to be collected and analysed on regular
basis, while at the same time raising concerns regarding the additional
workload and the use of the analyses. The Commission, together with Frontex, is
currently deliberating on how to best proceed. 
3.           Application of the
Schengen acquis
3.1.        Cases of temporarily reintroduced
control at internal borders
Article 23 of the Schengen Borders Code[8] provides that,
exceptionally, where there is a serious threat to public policy or internal
security, a Member State may reintroduce border control at its internal
borders. During the period 1 May – 31 October 2012, control at the internal
borders has been reintroduced twice. 
First, on 20 April 2012, Spain notified the
Commission that on the occasion of the meeting of the European Central Bank in
Barcelona on 2-4 May 2012, it was to reintroduce control at the internal land
border with France as well as at Barcelona and Gerona airports from 28 April
until 4 May 2012. During this week, Spain perfomed border checks on 669 385
persons, whereof 68 persons were refused entry, either on grounds of public
policy or internal security, or for having no valid travel documents[9]. 
Second, on 4 May 2012, Poland informed the
Commission that due to the EURO 2012 football championships from 8 June to 1
July 2012, it had decided to reintroduce control at its internal borders
between 4 June and 1 July. During this period, 28 980 persons were
checked, of whom 22 persons were refused entry and 15 were apprehended[10]. 
3.2.        Maintaining
the absence of internal border control
The large majority of alleged violations of
the Schengen acquis regard whether the carrying out of police checks close to
the internal border have an effect equivalent to border checks (article 21 of
the Schengen Borders Code) and the obligation to remove obstacles to fluid
traffic flow, such as speed limitations, at road crossing-points at internal
borders (article 22 of the Schengen Borders Code). In the period 1 May - 31
October 2012, the Commission requested information on possible violations of
articles 21 and/or 22 of the Schengen Borders Code in two new cases (regarding Germany
and Lithuania), while it closed three cases (involving Belgium, Estonia and the
Netherlands) and continued investigating seven existing cases (regarding Austria,
the Czech Republic, Germany, Latvia, the Netherlands, Slovakia and Sweden).
Recently there have been several cases in different Dutch courts dealing with
the question whether the mobile surveillance carried out by the Koninklijke
Marechaussee close to the Netherlands' internal land borders with Belgium and
Germany (article 4.17a of the Aliens Decree 2000) is compatible with articles
20 and 21 of the Schengen Borders Code. The Rechtbank Roermond on 7 February
2012 in case C-88/12 (Jaoo) submitted for preliminary ruling by the Court of
Justice of the European Union the question whether this mobile surveillance
contravenes the prohibition of checks equivalent to borders checks (article 21
of the Schengen Borders Code). Moreover, the Raad van State on 4 June 2012
submitted in case C-278/12 (Adil) the same question for an urgent preliminary
ruling by the Court of Justice. 
On 19 July 2012, the Court of Justice rendered
judgment in case C-278/12 (Adil). The Court concluded that articles 20 and 21
of the Schengen Borders Code do not preclude checks by officials responsible
for border surveillance and the monitoring of foreigners in a geographical area
close to an internal border with a view to verifying the requirements for
lawful residence, as long as the check is based on general information and
experience on irregular stay in this location or, to a limited extent, in order
to obtain such information and experience, and these checks are conditioned by certain
limitations, especially as regards intensity and frequency. Since the Dutch
mobile surveillance is aimed at combatting irregular stay and therefore has a
purpose different from border checks, is based on general police information
and experience, is carried out in a different manner than border checks and is
conditioned by the necessary limitations, the Court concluded that it does not
have an effect equivalent to border checks. 
The Commission notes that, apart from the
Netherlands, also France and Germany retain specific legislation applicable
only in internal border areas. Furthermore, it is noted that the Dutch and the
French legislations have been amended already following the Melki-judgment[11]. To that end, the
Commission invites Member States which provide for this type of specific
legislation to ensure that it is in line with the above mentioned judgments and
stands ready to offer its advice to Member States on the interpretation
thereof. 
3.3.        Alleged violations of
other parts of the Schengen acquis
Transposition of the Return Directive
(2008/115/EC) into national legislation
The deadline for implementation of the
Return Directive (2008/115/EC) expired on 24 December 2010. All EU Member States bound by the Directive and all associated
countries except Iceland have notified full transposition of the Directive into
national law. The Commission has started examining the legal transposition and
the practical application in the Member States in detail and will present its
first application report by the end of 2013.
Implementation of the Regulation on Local
Border Traffic (EC No 1931/2006)
Since the entry into force of the local
border traffic regime in 2006, the Commission has been monitoring its
implementation. In July 2012, the Commission decided to request information
from three Member States (Latvia, Poland and Slovenia) on the bilateral
agreements that these countries have concluded with their third country
neighbours. The concerns differ between the Member States, but include the
requirements for a travel medical insurance as well as limitations
of the scope only to the citizens of the contracting parties, lack of a
requirement for a minimum period of residency in the border area, etc. 
Application of the Schengen acquis
during sea border surveillance
As previously reported, the Commission in
October 2009 issued a letter of formal notice to Greece, following allegations
of serious difficulties faced by migrants in applying for asylum and
ill-treatment of asylum-seekers, including the turning back of persons who may
face serious harm or persecution. The Commission's
analysis is being carried out in the light of constant developments, such as
the progress made in the implementation of the Greek National Action Plan. 
Further, due to groups of migrants
allegedly intercepted by Italian authorities on the high seas and sent back to
Libya, the Commission in July 2009 requested Italy to provide information on
the measures to avoid the risk of refoulement and on reassurances obtained from
the Libyan authorities with regard to the persons concerned. On 23 February
2012, the European Court of Human Rights found Italy to be in violation of the
European Convention of Human Rights on the basis of these same facts[12]. Against this
background, the Commission is now analysing the implications of this ruling on
border surveillance operations at sea and on the asylum acquis.
3.4.        Carrying
out of sea border operations coordinated by Frontex
On 5 September 2012, the Court of Justice[13] annulled Council
Decision 2010/252/EU, supplementing the Schengen Borders Code as regards sea
border operations coordinated by Frontex, because it contains essential
elements of surveillance of external sea borders which go beyond the scope of
additional measures within the meaning of article 12(5) of the Schengen Borders
Code, and only the European Union legislature is entitled to adopt such a decision.
The Court maintained the effects of the annulled decision until the entry into
force, within a reasonable time, of new rules intended to replace it. The
Commission will present a legislative proposal in the beginning of 2013. 
3.5.        Weaknesses identified in
the framework of the Schengen evaluation mechanism
In the framework of the current Schengen
evaluation mechanism[14],
Member States' application of the Schengen acquis is regularly evaluated by
experts from the Member States, the Council General Secretariat and the
Commission. 
In the period 1 May 2012-31 October 2012,
Schengen evaluations were carried out regarding sea borders in Estonia, Latvia,
Lithuania, Malta, Poland and Slovenia, police cooperation in Hungary, Slovakia,
the Czech Republic and Poland, air borders in Estonia, Latvia and Lithuania,
data protection in Estonia, Latvia, Lithuania, Malta and Slovenia, SIS/Sirene
in Denmark, Iceland and Norway as well as visa in Latvia and Lithuania. The
reports are still being finalised, but are expected to include positive as well
as negative comments and recommendations on issues such as training, use of
risk analysis, information exchange, international cooperation and
infrastructure at border crossing points and embassies/consulates. As was the
case also during the previous six months, there is generally room for
improvement, but no deficiencies have been found that would require the
Commission to take immediate action. 
Moreover, from 28 May to 2 June 2012, a
peer-to-peer mission to Greece was carried out in order to assess the progress
of the Greek action plan to remedy the shortcomings detected in the Schengen
evaluation in 2010-2011 and to identify topics where Member
States could offer assistance. This mission went to the
Athens International Airport 'Eleftherios Venizelos', the Port of Piraeus and
the Evros region and hence covered all types of borders. It was noted that
although visible improvements have been made, these still need to be fostered
and advanced.
The Commission invites Greece to continue
the implementation of its Schengen action plan and reiterates its commitment to
support the Greek efforts to manage its external borders, i.a. through the
External Borders Fund and Frontex assistance.
For an indicative calendar of Schengen
evaluations in November 2012 – April 2013, see Annex I. 
3.6.        Lifting of control at
internal borders with Bulgaria and Romania
Following the Council Decision in June 2011
that both Romania and Bulgaria fulfil the criteria to apply in full the
Schengen acquis, the European Council in March 2012
requested the Council to identify and implement measures which would contribute
to the accession of these two countries. The Council has since then identified
a number of such measures, including ongoing and planned Frontex activities,
measures relating to the fight against false documents and identity fraud and
measures concerning the fight against smuggling and trafficking in human
beings. The implementation of these measures is continuously monitored. 
4.           Flanking measures
4.1.        Use of the Schengen
Information System
As highlighted in the previous report, the
Schengen Information System (SIS) is a very successful system which provides
many thousands of successful outcomes every year. This success brings with it a
significant workload in cross-border cooperation between the SIRENE Bureaux. A
seminar has taken place where Member States' SIRENE Bureaux delegates and the
Commission discussed ways to make working practices more
efficient. The seminar generated several proposals that could be implemented in
the short term. Other proposals will be addressed collaboratively by the Member
States and Commission to assess whether the issue will, in any case, be solved
in 2013 by the features of SIS II or needs to be refined into a revised working
practice.
4.2.        Use of the Visa
Information System
The Visa Information System (VIS) is a
system for exchange of information on short-stay visas, enabling the competent
authorities of the Schengen States to process data on visa applications and on
visas issued, refused, annulled, revoked or extended. On 10 May 2012, the VIS
was successfully launched in the second region, the Near East (Israel, Jordan,
Lebanon and Syria). Further, the VIS on 2 October 2012 started operations in a
third region, the Gulf (Afghanistan, Bahrain, Iran, Iraq, Kuwait, Oman, Qatar,
Saudi Arabia, United Arab Emirates and Yemen). The
dates for the remaining regions of deployment are being discussed among Member
States and will be agreed in the coming months.
The VIS is working well operationally and
by 4 November 2012, the system had processed 1 774 965 visa
applications, issued 1 457 708 and refused 220 644 visas. 
The main issue of concern remains the
quality of data (both biometric and alphanumeric) introduced by the consular
authorities of Member States into the VIS. These issues have affected at times
the performance of the system and should be avoided in the future, given the
continuous deployment throughout all world regions. Despite the gradual
improvements, efforts should be made to further improve the capturing of good
quality fingerprints and to fill in to the VIS all mandatory fields from the
visa applications.
4.3.        Visa policy and
readmission agreements
Post-visa liberalisation monitoring
mechanism for Western Balkan countries
In August 2012,
the Commission presented its third post-visa liberalisation monitoring report for
the Former Yugoslav Republic of Macedonia, Montenegro, Serbia, Albania and
Bosnia and Herzegovina[15],
setting out the recent actions taken and proposed next steps. While the number
of asylum seekers from Serbia and the Former Yugoslav Republic of Macedonia
decreased in the first half of 2012 in comparison with the same period in 2011
(-13% for Serbia and -48% for the Former Yugoslav Republic of Macedonia when comparing
May 2011 to May 2012), there was a considerable increase of asylum seekers from
Albania (+725%), Bosnia and Herzegovina (+14%) and Montenegro (+77%). Most
asylum claims are deemed to be unfounded, and the asylum recognition rate
remains very low. Belgium, Germany, Luxembourg and Sweden remain the main
destination countries. These Member States have taken measures to decrease the
processing time, but there is still room for improvement as regards, inter alia, information exchange,
investigation of facilitators, strengthened exit and entry checks, targeted
awareness campaigns and assistance to minority communities. 
Readmission agreements
The Commission in April 2012 initialled a
readmission agreement with Cape Verde and subsequently launched the procedure
for formal ratification. Negotiations with Turkey on a readmission agreement have
been finalised and the text was initialled in June 2012. The signature of the
readmission agreement and the launch of a dialogue on visa liberalisation are
expected. In October 2012, a readmission agreement with Armenia was initialled and
the Commission is now working towards its signing and conclusion as quickly as
possible. Furthermore, negotiations have been launched also with Azerbaijan on
visa facilitation and readmission agreements. 
ANNEX I: Indicative calendar of Schengen
evaluations in November 2012 – April 2013[16]
 Time || Member States || Theme 
 11-17 November 2012 || Estonia, Latvia, Lithuania || Police cooperation 
 18-28 November 2012 || The Czech Republic, Poland, Slovakia || Air borders 
 20-26 January 2013 || Estonia || Visa 
 10-20 March 2013 || Poland, Slovakia || Visa 
 14-25 April 2013 || Estonia, Latvia, Lithuania || Land borders 
[1]               COM (2011) 561 final
[2]               COM (2012) 230 final
[3]               Frontex quarterly risk analysis April-June 2012
[4]               Frontex quarterly risk analysis April-June 2012
[5]               Frontex quarterly risk analysis April-June 2012
[6]               France, Greece and Ireland did not participate.
[7]               Summary report by the Danish National Police, June
2012
[8]               Regulation (EC) No 562/2006 of the European
Parliament and of the Council establishing a Community Code on the rules
governing the movement of persons across borders (Schengen Borders Code)
[9]               Council
document 10491/12 FRONT 84 COMIX 337
[10]             Council
document 13219/12 FRONT 115 COMIX 467
[11]             Judgment of 22 June 2010 in case C-188/10
[12]             Case of Hirsi Jamaa and others v. Italy. Application
no. 27765/09
[13]             Judgment of 5 September 2012 in case C-355/10, European
Parliament v. Council
[14]             SCH/Com-ex (98) 26 def.
[15]             COM (2012) 472 final
[16]             Council documents 5090/4/12 SCH-EVAL 1 COMIX 6 REV 4
and 12032/12 SCH-EVAL 99 COMIX 423