The European Commision to be responsible to monitor whether Member States have correctly implemented the Schengen acquis’s elements that form part of EU law

The European Commission has recently proposed a Council Decision on the establishment of an evaluation mechanism to monitor the application of the Schengen acquis. The proposal has as legal basis Articles 30 and 31 of the Treaty on European Union.

The Commission is aiming at establishing a legal framework for evaluating the correct application of the Schengen acquis’s elements that form part of EU law. The Commission has also presented a proposal for a Regulation on the establishment of an evaluation mechanism to verify the application of the Schengen acquis’s elements that are part of Community law.

In 1998, the Schengen Member States set up a Standing Committee whose tasks are to establish whether all the preconditions for lifting internal border controls with a candidate State have been fulfilled and to verify that the Schengen acquis is being correctly applied by the Member States implementing the acquis. When the Schengen acquis was integrated within the European Union framework, the Standing Committee became the Schengen Evaluation Working Group.

The Schengen evaluations have been conducted by Member State’s representatives whilst the Commission participates as an observer.

Member States are evaluated on a regular basis in order to ensure the overall correct application of the acquis. However, according to the Commission there are several weaknesses on the present Schengen evaluation mechanism. The Commission has stressed that the present methodology for the evaluation mechanism is inadequate, particularly the evaluation of the implementation of the acquis.

Hence, the Commission has proposed this draft decision establishing an evaluation mechanism to monitor the implementation by Member States of the Schengen acquis for which Title VI of the EU Treaty provides the legal base. Whereas presently the European Commission has an observer status under the draft proposal would have the main role. The Commission will coordinate the evaluation process in fields covered by the EU Treaty.

Under the draft decision all parts of the Schengen acquis which have their legal basis in the Treaty on European Union can be the subject of evaluation. The Commission would be responsible for the implementation of the evaluation mechanism to assess whether Member States are correctly implementing the provisions of the Schengen acquis for which Title VI of the EU Treaty provides the legal base.

The 1998 evaluation mechanism would be revised as regards the second part of the mandate given to the Standing Committee. The Schengen Evaluation Working Group would retain its responsibility to verify that applicants to join the Schengen area have met the preconditions before the controls on their internal borders are lifted. Therefore, Member States will continue responsible for establishing that the preconditions are satisfied for removing the checks at the internal borders.

The Commission has no duty, under the EU Treaty, to ensure the implementation of measures for which the EU Treaty provides the legal base. Consequently, the Commission should not be responsible for monitoring Member States’ implementation of the acquis’s provisions for which the EU Treaty provides the legal base.

The new evaluation mechanism would be coordinated by a group, the so called “coordination group", composed of representatives of the Member States and of the Commission. The group would be chaired by a Commission’s representative.

Member States would have a duty to cooperate with the Commission within the coordination group in order to “allow the Commission to carry out the tasks conferred on it by the present Decision.”

Evaluations can consist of questionnaires and on-site visits. The questionnaires would cover all the relevant legislation and the organisational and technical means available for the implementation of the Schengen acquis.

The Commission will establish multiannual evaluation programme covering a period of five years containing the list of Member States to be evaluated each year. Under the proposal each Member State would be evaluated at least once during each five-year period. The Commission will also establish an annual programme detailing the evaluation activities.

The Commission will decide, in cooperation with the coordination group, after analyzing the replies to the questionnaire, whether an on-site visit should be made.

The Commission will establish a list of experts designated by Member States, Europol and Eurojust for participation in on-site visits. The Commission will appoint teams to carry out on-site visits. The proposal requires that members of the team making an on-site visit should appoint a coordinating expert with overall responsibility for drafting the report.

Member State experts may not participate in an on-site visit to the Member State where they are employed.

The Member States would be responsible for making the necessary arrangements for travel and accommodation for their experts but the Commission shall reimburse such costs.

The evaluation report is to be written by the Commission if the evaluation is based solely on the answers to the questionnaire or by the team of experts in case of on-site visits. Such report will list any shortcomings or weaknesses established during the evaluation and will include recommendations for “remedial action as well as respective deadlines for their implementation.”

The Commission shall notify the report to the Member State concerned within four weeks of the on-site visit or the receipt of replies to the questionnaire. The Member State concerned, within six weeks of receipt of the report, must provide an action plan on how to remedy the identified weaknesses. The Commission will present its evaluation of the adequacy of the action plan. Moreover, the Member State concerned is obliged to report to the Commission on the implementation of the action plan within six months of receipt of the report, and after that every three months as long as the action plan is not fully implemented.

The Commission, on its own initiative or at the request of a Member State, has to inform the Council if an on-site visit reveals a serious deficiency considered to have a significant impact on the overall level of security of one or more Member States applying the Schengen acquis in full.

The UK is taking part in this Decision, as it takes part in the Schengen acquis's provisions on police and judicial cooperation in criminal matters. In the other hand, the draft Regulation would not apply to the UK as it does not take part in the immigration and asylum provisions of the acquis.

The Parliamentary Under-Secretary of State at the Home Office, Mr Shahid Malik, has said to the European Scrutiny Committee that “The Government is content with the substance of both proposals.”

The draft decision is going trough the consultation procedure with unanimity required at the Council. However, if the Government is “happy” with the proposal it would not veto the draft decision.