COM(2022) 636 final
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL
Making Schengen stronger with the full participation of Bulgaria, Romania and Croatia in the area without internal border controls
The Schengen area without internal border controls (the “Schengen area”) is among the most emblematic achievements of European integration and one of the most tangible manifestations of the European way of life, driving the economy and uniting Europeans across internal frontiers.
What started as an intergovernmental project between five Member States in 1985 – France, Germany, Belgium, Netherlands and Luxembourg – has gradually expanded over seven enlargement stages to become what is today the largest area of free movement in the world. The benefits of abolishing internal borders remain as compelling today as they were in 1985. Schengen is a reality for millions: every single day, around 3.5 million people cross internal borders for work, study or visiting families and friends. Schengen enhanced our collective security, enabling Member States’ authorities to cooperate closely together. Beyond this, the Schengen area is designed to be the bedrock of the European Union and its single market as a whole. In the current challenging geopolitical and economic context, a fully functioning and completed Schengen area is instrumental to stability, resilience and recovery.
Today, the Schengen area comprises 26 countries and extends over 4 million square kilometres with a population of almost 420 million people. There are 22 EU Member States that participate in the Schengen area. Of the remaining Member States, all but one are required and should therefore be permitted to join the Schengen area once they fulfil the conditions. Four of the five remaining Member States, namely Bulgaria, Croatia, Cyprus and Romania, are already bound in part by the Schengen acquis but internal border controls with those Member States have not yet been lifted. Ireland participates in some important parts of the Schengen architecture with the exception of the acquis related to external borders and the abolition of internal border controls. There are four non-EU Member States: Iceland, Liechtenstein, Norway, and Switzerland that have each signed agreements with the Union on association with the application of the Schengen acquis, and therefore also form part of the Schengen area. With Bulgaria, Romania and Croatia fully applying the Schengen acquis, the Schengen area will grow to 4.5 million square kilometres with a population of 450 million.
The Schengen acquis is an integral part of the EU’s legal framework, with significant obligations and responsibilities, which every new Member State must accept in full as candidate for admission. In particular, they need to be prepared and have the capacity to effectively manage the external borders on behalf of all other Schengen States, and issue uniform Schengen visas. They need to be able to efficiently cooperate with law enforcement agencies in other States and to be able to connect to and use the relevant information systems, such as the Schengen Information System, in order to maintain a high level of security once there are no internal border controls. Finally, they have to ensure that fundamental rights and data protection requirements are respected in these activities.
Beyond meeting these requirements, full application of the Schengen acquis relies on unanimous approval from all other Member States applying the Schengen acquis in full. In this respect, significant progress has been made and important political steps have recently been taken to support the full application of the Schengen acquis in Bulgaria, Romania and Croatia. This is strongly advocated for by the European Parliament and it is a key priority for the Czech Presidency of the Council of the European Union.
In addition, the Schengen evaluation process to assess the readiness to join the Schengen area is ongoing for Cyprus. The Schengen Information System in Cyprus will be put into operation soon and this process will be verified by a dedicated Schengen evaluation in 2023.
This Communication takes stock of the strong record of achievements of Bulgaria, Romania and Croatia in having taken the measures needed to ensure that the necessary conditions for the application of all relevant parts of the Schengen acquis are met, as set out in their respective Acts of Accession of 2005 and 2011. It calls upon the Council to take the necessary decisions without any further delay, allowing these three countries, that are not yet fully part of the area without controls at internal borders, to join.
There is no doubt the Union is ready for such a historical decision. The joint efforts made in recent years have made Schengen stronger and more resilient. The recently established Schengen governance cycle provides all the tools needed to regularly assess the state of Schengen, moving from an administrative framework to common political governance and responsibility. The Schengen Council and Schengen Forum facilitate transparent and constructive dialogue between the EU institutions and the Member States. The new and reinforced Schengen Evaluation and Monitoring Mechanism, to which Bulgaria, Romania and Croatia would be subject immediately after the decisions on the full application of the Schengen acquis will be taken, will ensure the timely identification of any possible deficiencies and corrective measures.
As such, this eighth enlargement of the Schengen area would both confirm and reinforce the mutual trust and unity between Member States on which Schengen is built as well as contribute to continuously adapt and bring forward this fundamental project.
II.Strong record of achievements by Bulgaria, Romania and Croatia
Since 2011, the Commission has consistently held the opinion that Bulgaria and Romania are ready to become part of the Schengen area without internal border controls. The same applies to Croatia since 2019. The Commission has actively urged the Council to take the Decisions to allow Bulgaria, Romania and Croatia to join the area without internal controls. The same pledge has been made by the European Parliament on multiple occasions
For years, these Member States have significantly contributed to the well-functioning of the Schengen area, including during the migration crises, the pandemic restrictions and more recently when faced with the unprecedented consequences of the war in Ukraine. Having successfully completed all Schengen evaluations, there is a legitimate expectation of Bulgaria, Romania and Croatia to fully join the Schengen area without internal border controls. The recent voluntary fact-finding mission to Bulgaria and Romania as well as the last revisit to Croatia and its achievements concerning the monitoring of fundamental rights at the external borders decisively confirm that these countries continue to effectively meet the rigorous Schengen standards and have proven to have a model track record of implementation. While these Member States actively implement most of the Schengen acquis, they do not enjoy the full benefits that come with being part of the Schengen area without internal border controls.
In a strategic geographical position, Bulgaria, Romania and Croatia play a key role in securing our common external border and effectively contributing to a high level of security and prosperity, as recent crises have shown. All the necessary tools, structures and procedures are in place to efficiently manage the crossing of the external borders, as well as possible security threats at those borders, thereby contributing to addressing serious crime with a cross-border dimension. These countries have also demonstrated a high level of commitment to ensuring an effective response to the migratory pressure and related challenges, developing strong cooperation with their close neighbours. In addition, in line with the new Schengen Evaluation Regulation, Member States for which a Council decision has been adopted stating that the provisions of the Schengen acquis are to apply in full, shall be evaluated no later than one year from the date of the full application of the Schengen acquis in those Member States
. This applies to Bulgaria, Romania and Croatia following the adoption of the respective Decisions.
Pursuant to Article 4(2) of the 2005 Act of Accession
, Bulgaria and Romania successfully accomplished their respective Schengen evaluation processes in 2011. The process started in 2009 and all relevant parts of the acquis were thoroughly assessed in line with the applicable procedures. The Council recognised the completion of the evaluation process in two separate Council Conclusions of 9 June 2011
. The draft Council Decision on the full application of the provisions of the Schengen acquis in Bulgaria and Romania received a positive opinion from the European Parliament on 8 June 2011
. Despite the positive outcome and completion of the Schengen evaluation process, for more than eleven years no Council Decision has been taken on the full application of the Schengen acquis in Bulgaria and Romania and the lifting of controls at their internal borders.
Given that the evaluation processes for Bulgaria and Romania were completed in 2011, and the Schengen Evaluation and Monitoring Mechanism Regulation does not allow for a formal evaluation of Bulgaria and Romania to be relaunched, both have, with a view to strengthening mutual trust and in acknowledgment of the development of the Schengen acquis in the intervening period, issued a Joint Declaration on 2 March 2022 inviting, on a voluntary basis, a team of experts under the coordination of the Commission, “to ensure the application among others of the latest developments of the Schengen acquis since the evaluation, focusing on external border management and police cooperation”.
In agreement with Bulgaria and Romania, both of which showed flexibility and commitment, and following requests from Member States, the scope of the mission was significantly enlarged to cover all relevant elements of the Schengen acquis, including the latest developments since 2011, with a focus on external borders and police cooperation. Return, Schengen Information System, Visa Information System, as well as visa policy developments, were also looked into. The mission took into account the respect for fundamental rights, including data protection, and the functioning of the authorities that apply the relevant parts of the Schengen acquis. The visits took place in Romania (9 to 11 October) and Bulgaria (12 to 14 October 2022). A majority of Member States contributed to the mission and the team was composed of 17 Member State experts. In addition to the five Commission experts, observers from the European Border and Coast Guard Agency (“Frontex”), Europol and the European Union Agency for Fundamental Rights participated to the fact-finding mission.
The voluntary fact-finding mission confirmed the conclusions of the completed evaluation processes from 2011, and reveals that Bulgaria and Romania have not only continued implementing the new acquis and tools, but that they have also substantially reinforced the overall application of the Schengen acquis in all its dimensions in a comprehensive manner.
Bulgaria, which neighbours Turkey, plays a key role in protecting the EU external borders and maintaining a high level of internal security. To this end, Bulgaria has put in place strong border management ensuring quality border surveillance and systematic border checks. As reflected in the fact-finding report, Bulgaria is encouraged to further improve the national situational picture by fully implementing the common integrated risk analysis model. Despite existing external challenges, Bulgaria takes a coherent approach to returning third country nationals with no right to stay and preventing unauthorised secondary movements. Fight against cross-border crime is prioritised with active international police cooperation tools in place, including through and with Europol as well as through operational agreements Bulgaria has concluded with neighbouring countries allowing for cross border surveillance and hot pursuit. The Schengen Information System is well established. As regards the functioning of the authorities, Bulgaria’s national strategy for Preventing and Combating Corruption is being implemented at all levels and strengthened by prevention measures and robust disciplinary procedures. Bulgaria also demonstrated that it has the necessary structures in place to ensure respect for fundamental rights, guaranteeing access to international protection, observing the principle of non-refoulement as well as the data protection requirements for the application of the Schengen Information System and police cooperation.
Romania, bordering Serbia, Ukraine and Moldova, plays a very important role in contributing to the well-functioning of the Schengen area. There is high-quality and strong border management, including border surveillance and systematic border checks, and international police cooperation with neighbouring countries is functioning well, as is the very active cooperation with Frontex. A holistic approach to migration management is ensured with actions implemented in third countries as well. Return is implemented as a priority action to fight against irregular migration and unauthorised secondary movements, resulting in a coherent approach for return and readmission. Romania has a national contingency and operational plan for extraordinary situations, which Romania successfully activated in response to the Ukrainian crisis. Romania furthermore engages in effective and active international police cooperation, particularly with Europol. Fight against illegal migration and trafficking in human beings are two priorities where Romania is particularly active. The Schengen Information System has been well established and continued efforts are now needed to ensure the necessary automation of the SIRENE workflow. Romania has a national Anti-Corruption Strategy and anti-corruption measures have been introduced at all levels within Romanian law enforcement. As regards respect for fundamental rights, Romania has effective structures to guarantee access to international protection and to ensure observance of the principle of non-refoulement as well as the necessary structures to respect the data protection requirements for the application of the Schengen Information System and police cooperation.
The on-site expert team presented the report of the mission
at the Council’s Working Party for Schengen Matters of 26 October 2022 and concluded that it had not identified any issues as regards the application by Bulgaria and Romania of the latest developments of the Schengen acquis and that both Member States continue to meet the conditions necessary to apply all relevant parts of the Schengen acquis in full. Both Bulgaria and Romania are ready to fully implement the Visa Code and issue Schengen visa from the moment of accession. The Commission welcomes the decision of Bulgaria and Romania to shift the necessary personnel from the border police sector at the internal borders to the external borders once internal border controls are lifted to counteract potential increase in irregular migration.
Croatia, bordering Serbia, Bosnia and Herzegovina as well as Montenegro, plays an equally essential role in protecting the EU external borders and ensuring the well functioning of the Schengen area. Following Croatia’s ‘Declaration of Readiness’ to start the Schengen evaluation process with a view to a Council Decision on the full application of the Schengen acquis, the evaluation process took place in the period 2016 – 2020.
On 22 October 2019, the Commission adopted a Communication concluding that Croatia had taken the measures needed to ensure that the conditions for the application of all relevant parts of the Schengen acquis are met and confirming that Croatia continues to fulfil the commitments linked to the Schengen acquis as undertaken in its accession negotiations
. Reference was also made to the need for Croatia to continue working consistently on the implementation of all ongoing actions, in particular in the field of external border management to ensure that these conditions continue to be met.
To monitor and verify the implementation of those actions in the field of external border management, the Commission organised a targeted verification visit to Croatia from 23 to 27 November 2020. The visit concluded that Croatia had implemented the majority of the actions. Based on the outcome of the visit and the latest progress report of Croatia on the implementation of the external borders action plan, the Commission closed the action plan on 2 February 2021.
The Justice and Home Affairs Council of December 2021 confirmed the Commission’s conclusion as stated in the Communication of 22 October 2019 that Croatia has fulfilled the necessary conditions for the application of all parts of the Schengen acquis
. The Council furthermore invited Croatia to continue working consistently on the implementation of the Schengen acquis, as well as commitments linked to it. On 29 June 2022, the Council consulted the European Parliament on the draft Decision on the full application of the Schengen acquis in the Republic of Croatia. The draft Council Decision received a positive opinion from the European Parliament on 10 November 2022.
Croatia has made considerable efforts to ensure that controls of the external borders comply with fundamental rights obligations and has committed to a “zero-tolerance” towards violence of any kind. The Commission positively notes that Croatia is the first Member State to establish, in June 2021, an Independent Monitoring Mechanism, as proposed in the Pact on Migration and Asylum. This is a unique forum to independently observe border guards’ and police practices, and to address any allegations of fundamental rights violations at the border, enhance awareness, including through training of border guards and police officers, on the applicable laws and fundamental rights safeguards and ensure improvements of the internal procedures. The Mechanism directly involves relevant Croatian stakeholders and is guided by an independent Advisory Board which consists of, among others, two Ombudspersons, including one for children, representatives of the European Commission, the European Union Agency for Fundamental Rights and intergovernmental organisations.
After one year of operation of the Mechanism, the final report of the Coordination Board of the Independent Monitoring Mechanismwas adopted in July 2022. On this basis, on 27 October 2022, the Advisory Board commended the activities of the Independent Monitoring Mechanism, in particular the setting up of an expert and fruitful dialogue with Croatian authorities which followed up on the conclusions of the Mechanism, and the conduct of twenty on-site observation missions. It also adopted recommendations for possible further improvements concerning a wider mandate including unannounced observations in particular at the green border, access to information from the Ministry of the Interior and the need to ensure a continued implementation of the independent monitoring mechanism.
The Commission welcomes the commitment of the Croatian government to maintain and continue implementing the Independent Monitoring Mechanism and notes positively that the recommendations of the Advisory Board are fully reflected in the new Agreement extending the Independent Monitoring Mechanism, which was signed on 4 November 2022. In particular, the new Agreement stipulates that the Mechanism is established for automatically renewable periods of 18 months ensuring therefore that its envisaged aims are durably and sustainably met, and provides for the possibility to carry out unannounced observations anytime at any location, including at the green border. This Agreement also provides that the Mechanism will be able to require the launching of official investigations from the relevant state bodies following the detection of irregularities and possible fundamental rights violations. Furthermore, the Agreement includes specific mechanisms to ensure increased efficiency and transparency, including to facilitate communication with the interested public. Finally, the Agreement puts a stronger emphasis on a continuous monitoring of the respect of fundamental rights by clarifying that the Mechanism monitors the respect of fundamental rights in all circumstances, with particular attention to the right to effective access to the asylum procedure and international protection, the respect of the principle of non-refoulement, the prohibition of collective expulsion as well as the prohibition of torture or other forms of ill-treatment.
III.Strong record of achievements to reinforce and bolster Schengen
The strong record of achievements by Bulgaria, Romania and Croatia matches a strong record of achievements reached progressively in the Schengen area as a whole. The Schengen area is continuously developing and adjusts to new challenges and priorities. Our Schengen area today is robust and ready for this new enlargement which in turn will contribute to further increasing its resilience, notably in the face of new geopolitical challenges. Over the past 37 years, a comprehensive legal framework and common operational tools have been gradually developed to better protect the area without controls at internal borders.
The recently established Schengen governance system guarantees stronger accountability and common responsibility promoting the implementation of structural reforms. The Schengen Cycle as proposed by the Commission, sets out the structures for a coordinated approach to common challenges and increased political dialogue.
The Schengen architecture has been under continuous renewal. The legal framework has been continuously strengthened offering already today a strong basis for managing external borders efficiently whilst guaranteeing that internal border controls remain measures of last resort. The upcoming revision of the Schengen Borders Code
will further reinforce the rules, guaranteeing increased cooperation between Member States and full coordination at Union’s level. In addition, there is growing awareness and resolve from Member States on the need to address in a sustainable manner the issue of long-lasting internal border controls.
In the past years, the EU has been intensively working to put in place one of the world’s most technologically advanced border management systems, the benefits of which are already visible on the ground today. The entry into operation of the upgraded Schengen Information System in early 2023 and the Entry/Exit System in May 2023 will bring additional security to our external border management and the Schengen area. The full new IT architecture, including the European Travel Information and Authorisation System (ETIAS) is expected to be in place by the end of 2023, and subsequent interoperability will connect European systems for borders, migration and security. Once in place, all relevant and competent national authorities will have complete, reliable and accurate information needed, in full respect of data protection requirements.
The Visa Code, which entered into force in 2010-2011, was revised in 2020, providing faster and clearer procedures for travellers, while at the same time increasing the tools available to respond to the challenges posed by irregular migration. The new possibility to use visa leverage towards third countries with which the cooperation on readmission is insufficient has already yielded positive results. The Visa Information System, recently reformed to include new functionalities (e.g. integration of long-stay visas and residence permits), has been effectively supporting Member States authorities and allowing for better checks of visa applicants in order to identify those who may pose a security threat or risk abusing immigration rules. Furthermore, the Union has continued to work to make Schengen more attractive, adding new third countries to the list of countries whose nationals can travel visa-free to the EU and concluding Visa facilitation agreements with third countries. The upcoming digitalisation of visa procedures
will convert the current paper-based visa application procedure into a digital one making it faster and more secure. The single on-line platform will put an EU face to the visa process and will create a unique entry point for visa applicants worldwide, thus increasing the EU’s attractiveness as a travel destination.
A robust management of external borders is key to compensate for the elimination of controls at internal borders, ensuring mutual trust. The Union and the Member States are actively working towards achieving a fully effective and integrated European border management in practice, including actions to make returns of third-country nationals with no right to stay more effective. Moreover, the establishment of the European Border and Coast Guard and the daily implementation of its reinforced mandate, was amongst the landmark decisions the Union took for fully meeting the imperatives of Schengen. Security and the functioning of the Schengen area is also supported by an effective implementation of the Union Custom Code in close cooperation with European Border and Coast Guard authorities. This cooperation guarantees that control of goods is well integrated in the same security processes.
A stronger Schengen also contributes to better addressing internal security challenges. The abolition of border controls has allowed Member States to use police resources to fight crime and internal terrorism in a more targeted way. Member States’ law enforcement authorities
are able to exchange information more efficiently as a result of the increased use of EU tools and instruments. This has led to a better coordination of investigative actions. Based on legislative proposals the Commission tabled in December 2021, the European Parliament and the Council are progressing in the legislative work to further enhance information exchange. The Commission calls on the European Parliament and the Council to reach swift agreement on the proposal for a Directive on information exchange between law enforcement authorities of Member States.
Moreover, the Commission will table by the end of the year a legislative proposal for a Regulation on the collection and transfer of advance passenger information (API) to fight serious crime and terrorism, including on selected intra-EU flights.
As action at national level alone does not suffice to address transnational security challenges, Member States’ law enforcement authorities have increasingly made use of the support and expertise that Europol, the EU agency for law enforcement cooperation, offers to counter serious crime and terrorism. The recent entry into force of Europol’s reinforced mandate further strengthens the means available to the Agency to support Member States in their investigations into cross-border serious crime and terrorism, for example with the processing of big data, cooperation with private parties or the work on innovation and artificial intelligence to support law enforcement.
Europol has also stepped up its support to Member States in countering terrorism through its European Counter Terrorism Centre. Member States also engage actively in the European Multidisciplinary Platform Against Criminal Threats (EMPACT) as the overall framework for cooperation to fight organised and serious crime affecting the EU, with increased financial support from the Union.
Member States enhance their operational cooperation by giving effect to the Council Recommendation of 9 June 2022 on operational law enforcement cooperation, using cross-border hot pursuits and surveillance, joint operations or joint patrols to counter cross-border crime.
The Commission supports Member States in taking forward the actions set out in the Recommendation, including with funding under the Internal Security Fund. Member States also cooperate through joint police checks they carry out in border areas, in line with the Commission Recommendation on proportionate police checks and police cooperation in the Schengen area.
Finally, a strong and well-functioning Schengen area requires not only a proper implementation of the Schengen acquis but also close cooperation between Member States on other complementary measures, including in the area of migration and asylum. A lot of work has been and will continue being done to ensure an effective management of migration challenges. As a follow up to the declaration on a Voluntary Solidarity Mechanism agreed in June, the Commission is facilitating the Member States’ work in finding common solutions to the issue of unauthorised secondary movements. In particular, following the discussions at the Contact Committee meeting on the Dublin III Regulation, held on 24 June 2022, the Member States, the Commission and the European Union Agency for Asylum (‘EUAA’) agreed to work on a roadmap to improve and ensure the implementation of transfers under that Regulation in all Member States. Working together, on the basis of collectively identified actions in this roadmap, will help bring tangible improvements to the Dublin system, which is crucial to continue building trust.
At the same time, decisive progress in adopting the Pact is crucial considering that it includes solutions needed to contribute to effective migration management, closer cooperation and responsibility sharing between Member States, thereby reinforcing mutual trust and as a result supporting a strong Schengen area.
IV.Reaching Schengen’s full potential
Bulgaria, Romania and Croatia’s accession to Schengen responds to both a European promise and a legitimate expectation that membership follows when all the agreed conditions are verified and met. Schengen enjoys overwhelming support of the European population and any continuing delays in Bulgarian, Romanian and Croatian citizens enjoying their rights, should be avoided. The European Parliament, the Presidency of the Council and the European Commission have shown a steadfast commitment to this new wave of accession to a Schengen area without internal border controls, and have given this process full and continued political and technical support.
Bulgaria, Romania and Croatia are ready to fully implement the Schengen acquis and to join the Schengen area. Their accession is crucial for a continued and reinforced mutual trust in the Schengen area. Furthermore, their accession will contribute to eliminating barriers within the single market, notably in terms of facilitating transport flows, as well as to fostering EU’s competitiveness and growth potential. Adding Bulgaria’s, Romania’s and Croatia’s highly trained and dedicated staff, their state-of-the-art infrastructure and know-how to the collective toolkit for the management of the Schengen area will boost border management and security in the EU as a whole. In turn, these new Schengen members will then also be able to fully exploit all the tools available, such as those linked to the Visa Information System and to the interoperability of large-scale IT systems. This will also lead to a stronger, more orderly management of migration, with third countries particularly in the European neighbourhood, at our external borders and between Member States.
An enlarged Schengen area will make the EU stronger as a Union, internally and on the global stage. It will make the Union stronger – through a reinforced protection of our common external borders and effective police cooperation – more prosperous – by eliminating time lost at borders and facilitating people and business contacts – and more attractive – by significantly expanding the world’s largest common area without internal border controls.
The Schengen Council now has the opportunity to take a historical decision in December. The Commission calls on all Member States to fully support the Czech Presidency in the last steps to make this happen, in line with the 2005 and the 2011 Acts of Accession of respectively Bulgaria and Romania, and Croatia.