INFLUENCING AND IMPLEMENTING EU OBLIGATIONSA guide for Scottish Government officials

Europe TeamInternational and Constitution DirectorateScottish Government

THIRD EDITION PUBLISHED 2012

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CONTENTS

Foreword 4

Introduction 5

Section One - Who to Talk ToSGEUO & Europe Team 7SGLD 8Stakeholders 8The Commission 9The Council 10The Parliament 11Working with the UK 12The Scottish Parliament 13

Section Two - Early OpportunitiesHorizon Scanning 15Explanatory Memoranda 16Consultations 17Project Management 20Lobbying 21

Section Three - NegotiationsJustice and Home Affairs Opt In 26Negotiations 27

Section Four - TranspositionTurning EU Law into Scottish Law 31Transposition Planning 32Different Approaches 34Weighing Up Options 35Implementation Plans 37SSI Tracker 37Policy Scrutiny 37Drafting Legislation 40Notifications 41

Section Five - Impact ReviewImpact Assessment 43Infractions 44

Annex A - Example of subsidiarity briefing for the Scottish Parliament 48Annex B - Practical tips for attending Council Working Groups 50Annex C - Example of an Implementation Plan 52Annex D - Example of a Transposition Note 55

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FOREWORD

The Scottish Parliament and Government now have over 12 years experience of dealing with the EU. Our experience of specific devolved interests has helped make the case for Scottish Ministers having a strengthened role in European discussion and decision making. Although we are always learning, Scotland has a great wealth of expertise in a number of areas where we can act as a creative, mature and effective contributor to the EU.

The Scottish Government is proposing an amendment to the Scotland Bill granting Scottish Ministers a statutory right to attend Council of Ministers’ meetings, both formal and informal, and attendance of officials at EU institution Working Groups, including Commission and Council, where any issues for which Ministers have direct or indirect responsibility are to be considered. In our upstream engagement we are looking to influence the European Commission and European Parliament at the earliest possible stage of the policy making cycle. Officials need to respond to the opportunities we are working for, and take a proactive, early and engaged approach to dealing with the Institutions in Brussels.

Enhanced opportunities to engage with Europe give Scotland greater influence over decisions on issues which directly affect Scottish industries and Scottish legislation, decisions which help us to meet our full economic potential. We have and will continue to engage and support European agendas constructively and proactively and our positive contribution has been recognised by our European partners.

But more work needs to be done - Scotland has a lot to say and contribute within the European Union. In order to make the most of these opportunities it is important that we engage with the EU institutions as early as possible, working with partners at home and abroad to achieve our shared goals which add value at a Scottish, UK and European level.

I hope this guide will support Scottish Government officials in influencing and implementing EU obligations. I believe it demonstrates this Government’s determination to govern competently, to innovate and to get the very best for Scotland from membership of the European Union.

FIONA HYSLOPCabinet Secretary for Culture and External Affairs.

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INTRODUCTION - ENGAGING WITH EUROPE

The work of the EU is increasingly important to Scotland, across a wide range of policy areas. The Scottish Government is determined to ensure our voice is heard in EU decision-making, particularly where there is a distinctive or disproportionate impact in Scotland. Engaging with the European Parliament and European Commission can also provide an excellent platform to demonstrate our policy success in areas where we are leading practice in Europe, resulting in increased profile and reputation for Scotland.

The purpose of this guidance is to help policy officials work with the EU to ensure that we get the best deal for Scotland. It covers the spectrum of engagement, from horizon scanning, to information events in Brussels, to working with Whitehall to create inclusive UK negotiating lines, to transposition plans and what to do if things go wrong. The key thing to remember is the importance of communication – Brussels runs on informal discussions, which underpin the more formal meetings and negotiations, so you need to know who to talk to.

This document aims to provide a concise guide to what you need to do, and will stick to the basics, but it also gives you suggestions on where else to look for help. Europe Team and the Scottish Government EU office in Brussels are there to offer whatever assistance they can, so if you can’t find what you’re looking for here please don’t hesitate to pick up the phone. Other sources of information, websites and contacts are listed throughout and at the back.

This guidance follows the lifespan of a piece of EU legislation, and highlights the various stages where you can engage with the EU institutions to work for Scottish interests. Early engagement is becoming increasingly important, especially in these times of tightening budgets and limited resources. In order to plan our work efficiently it is essential that we are all aware of what legislation is being proposed by Europe, what impact it may have on Scotland, and what action we will need to take to implement it. No one should ever get a surprise directive on their desks to transpose into domestic legislation – it’s simply not an effective way to work.

So, read the guidance, learn how others have tackled particular issues and think about how you can change your working habits to engage with Europe more effectively.

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SECTION ONE: Who to talk to

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SGEUO & EUROPE TEAM

Europe Team and the Scottish Government European Union Office (SGEUO) work hand in hand to promote Scotland's interests in Europe.

Europe Team

We focus on the Government's engagement with the EU and direct bilateral links with other European countries. We are responsible for the Government's strategic policy on EU engagement, and ensure that Government activity and resources are focussed on the EU issues of greatest importance to Scotland. This is captured in the Action Plan on European Engagement which is updated on a bi-annual basis. We also offer advice and support on handling EU matters, including providing this guidance on the implementation of EU obligations. We also manage the EU Liaison Officer network, which comprises of nominated individuals across the office who act as local specialists on EU matters. Do you know your local EULO? Do you want to be a EULO? Speak the Europe Team for details.

We provide support for bilateral links with European countries, and assist with inward and outward Ministerial visits, identify contacts in relevant consulates and embassies, and provide up to date information on current economic and political situations, and existing Scottish links.

We run regular in-house training events in partnership with Training colleagues. Check out the Events page to find a list of forthcoming sessions. We also host a wide range of useful information on our intranet site, look up Europe in the A-Z on Saltire.

SGEUO

The Scottish Government European Union Office is based in Brussels and its staff are mainly SG core staff. We are the Scottish Government's eyes, ears and voice in Brussels. We support Government work on EU policy by helping officials strengthen their relationships with the EU Commission, the European Parliament, the UK Permanent Representation to the EU (UKRep) and other Member State and sub-Member State representations.

We also report on events and policy developments in Brussels to Ministers and officials, identify key issues for Scotland, and communicate to key EU players what the Scottish Government's views are. We arrange cultural and policy related events to promote Scotland in Europe (for example, by bringing Scottish musicians to Brussels or holding seminars on specific policy topics), and host yearly study trips for colleagues to come and see the institutions.

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SCOTTISH GOVERNMENT LEGAL DEPARTMENT

You will need to consult with our in-house legal colleagues frequently throughout the life of an EU obligation, from considering the impact of a proposal on Scotland, to developing a Scottish position, informing your Ministers and working with Whitehall on the negotiations to drafting the transposing legislation for Parliament and handling any issues with later implementation, including responding to infraction proceedings.

Given the scale of their involvement your SGLD lawyer should be part of your project team from the outset.

Your SGLD lawyer will be able to assist you through the legal processes of handling EU obligations. They can also call on specialist support from the EU Solicitors group, who provide an internal pool of legal experience in dealing with more unusual EU matters.

You should also look at the SGLD Right First Time guidance, which provides a wealth of advice on making policy decisions, including tools to help decide which EU proposals will require action, and how best to choose between transposition options.

STAKEHOLDERS

Scotland has an engaged and proactive array of stakeholders with a keen interest in EU affairs - many of whom already have a significant presence and influence in Europe and are happy to help promote Scottish policy. When we approach Europe in a co-ordinated manner, focusing on Scotland’s main interests, the impact of strong, consistent and targeted messages goes a long way to strengthening Scotland’s voice and promoting Scotland as a credible, influential player across Europe.

Offer your stakeholders the chance to work more closely with you on specific issues, where we can be more effective by sharing expertise and resources. In exchange for their networks, we can provide opportunities to bring together interested parties to discuss European interests, for example through the European Elected Members Information, Liaison and Exchange group (EMILE) and the Brussels-based ‘Scotland In Europe’ quarterly meetings. Make use of these and other opportunities as they arise to provide information on the Scottish Government’s position on EU issues to Scotland’s representatives in Europe, such as MSPs and Councillors in European networks.

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THE EUROPEAN INSTITUTIONS

THE COMMISSION

The European Commission is independent of national governments, instead representing and upholding the interests of Europe as a whole. It has the sole right to propose legislation. It consists of 27 Commissioners, one from each member state, and about 24,000 officials. It drafts proposals for new European laws, and manages the implementation of EU policies and the spending of EU funds.

Commissioners

Although each Member State has a Commissioner, these Commissioners are not Member States' representatives. Their oath of office requires them to consider the interest of the EU as a whole, and not take instructions from Member States. Overt nationalism by Commissioners is therefore rare, but they do bring their own understanding of their Member States of origin to Commission discussions and decisions.

Engaging with the Commission

Strong, honest and constructive relationships with the European Commission are vital to ensuring that Scotland's views and interests are known. Ensuring that Scotland's voice is heard at the very earliest possible stage in Commission policy development is crucial for effective engagement.

It is Scottish Government policy to respond directly to all Commission consultations where we have a specific policy interest. (See page 17)

Meetings between Commissioners and Scottish Ministers and stakeholders, whether in Brussels or Scotland, can be immensely helpful in explaining to the Commission the unique challenges that face Scotland. Advice on approaching Commissioners should be sought at an early stage from SGEUO.

The Commission is a fairly open institution - you can use the link to the Commission Directory below, but also contact SGEUO staff to ascertain if there are any existing links.

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THE COUNCIL

The Council of the European Union (often just called "the Council") is a key decision-making body of the EU. This is the forum where the national interests of the Member States are represented.

The Council is divided up into 10 different configurations, each dealing with a particular subject matter.

These meetings are composed of one representative from each Member State, authorised to commit his/her government and are almost all chaired by the Member State holding the rotating presidency.

However, before a matter is discussed at a Council meeting it will have been developed at official level in Working Group meetings, also comprised of representatives from each Member State. You can attend these meetings, in collaboration with your UK counterparts. (See page 28).

Presidency

The Presidency of the Council of the European Union is held in turn by each Member State for a period of six months, in accordance with a pre-established rota.

The Presidency of the Council plays an essential role in organising the work of the institution, particularly in promoting legislative and political decisions. It is responsible for organising and chairing all meetings, including the many working groups, and for brokering compromises. It is therefore useful to know what the Presidency priorities are – you can find details here http://www.consilium.europa.eu/council/presidency-websites.aspx?lang=en

Engaging with the Council

Our interaction with the Council is of a different nature than that with the Commission and the Parliament. Engagement is through the UK Government, which is responsible for representing the UK as Member State in EU Council Meetings. It is therefore essential that you have good communications with your Whitehall colleagues.

Scottish Ministers can and do represent the UK at Council meetings, where they will deliver the agreed UK negotiating line. This is agreed on an ad hoc basis and Ministers need to be granted permission to do so by the lead UK Minister. However, the Scottish Government has tabled an amendment to the Scotland Bill which would grant Scottish Ministers a statutory right to attend Council meetings when the agenda will include matters of devolved interest.

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THE PARLIAMENT

The European Parliament represents Europe's citizens in the EU decision making process. It is the only directly elected institution of the European Union and its members are elected every five years. There are 736 members of the European Parliament, six of whom represent Scotland. Members do not sit in national delegations, but instead in transnational Political Groups.

Role in EU Decision Making

Following the implementation of the Lisbon Treaty, nearly all EU legislation (around 95%) is co-decided between the European Parliament and the Council, under the Ordinary Legislative Procedure (OLS). This, in principle, puts the European Parliament on an equal footing with the Council.

There are still certain areas of legislation where the Ordinary Legislative Procedure does not apply, and the Parliament is only required to give its assent or to be consulted. Such areas include aspects of justice and home affairs, budget and taxation. In certain areas, such as the setting of annual total allowable catch limits in fisheries, the European Parliament has no input in the proceedings, with decisions taken in the Council.

Parliamentary Process

When a piece of draft legislation is sent to the European Parliament from the Commission, it is assigned to the relevant Parliamentary Committee. One member is appointed as the 'rapporteur' to produce a report where amendments to the Commission's document are often suggested. Shadow rapporteurs, representing the other political groups, are also appointed.

Our MEPs can be very influential so it’s good to get to know them, and their support staff. George Lyon, Lib Dem MEP for Scotland, was the rapporteur on the committee looking into the future of the Common Agricultural Policy, a hugely important issue for Scotland and Europe.

Once the rapporteur's report has been produced, other committee members may also submit amendments. The report is then put to a vote in the committee - on each amendment and then whether to accept the report as a whole. This report is then used as a basis for the Parliament's negotiations with the Council and Commission (trilogues) where the European Parliament and the Council try to devise a common text. This common text has to be approved by the committee before the report is voted on in one of the plenary sessions.

The Scottish Government's European Parliament Liaison Officer (Nicola Calderhead) will be able to help you engage with the EP and has new guidance available here.

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WORKING WITH THE UK

The UK is the Member State, and will be until such time that the Scottish people vote for independence and Scotland becomes a Member State in its own right. Therefore, it is crucial to maintain good communications with your Whitehall colleagues, as they are your main conduit into Brussels.

The UK has an office of Permanent Representation in Brussels, usually known as UKRep, which works as the main interface between the EU and the UK. They can provide advice on contacting the institutions and act as a coordinating point for communication. It is headed up by the UK’s ambassador to the EU, Kim Darroch, and is supported by a staff of policy officers and legal advisors. The team in SGEUO has very close links with the UKRep office, and can help if you need to contact anyone there.

A Concordat on the Coordination of European Union Policy Issues is included in the Memorandum of Understanding between the UK Government and the Devolved Administrations. This states that Scottish Ministers and officials should be fully involved in discussions within the UK Government about the formulation of the UK’s policy on all issues which touch on matters falling within devolved responsibilities. In return, the Scottish Government agrees to support the resulting UK negotiating line which we will play a part in developing. Your UKG counterparts should keep you informed of any policy developments which might have a devolved element, but you should also take the initiative to keep yourself up to date. By being proactive you can show that you have a genuine policy interest and need to be included in the development of the UK position.

Don’t forget the other parts of the UK either. Wales and Northern Ireland also need to be included in the UK line and it can be useful to have their support if your policy is different to the UKG position. If you need help engaging with your Whitehall colleagues the UK Relations team are there to offer assistance. (x43325)

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I have a standing invitation to attend the weekly Justice and Home Affairs section meeting in UK Rep. I always go when I can, and report back to colleagues in the EU and International Strategy team in St Andrews House afterwards. The meetings give me a heads up on particular issues of concern to the UK Government as a whole, and also give me the chance to engage with colleagues on matters which affect Scotland. The personal contact with UK Rep has proved to be invaluable on those very rare occasions when there is a divergence of views between Scotland and the rest of the UK on, say, an appropriate form of words in an article of a Directive. The meetings also provide a good opportunity to get to know my UK colleagues and to understand the bigger negotiating picture. They are an invaluable source of information on UK policy contacts and can often put me in touch with helpful Council, Commission and European Parliament officials who are prepared to talk through issues with SG colleagues visiting Brussels. Jane Ferrier, Legal and Policy Officer, SGEUO

THE SCOTTISH PARLIAMENT

The Scottish Parliament is responsible for scrutinising the impact of legislative proposals on the people of Scotland and voting transposing legislation into Scottish law. Subject Committees take a close interest in EU legislation coming forward in their areas, and the Europe and External Relations Committee looks at cross-cutting EU issues.

Scottish Ministers need to be aware of current EU issues, so that they can explain to Parliament how the Scottish Government is engaging with topical or sensitive matters. Keep your Ministers fully briefed of legislation coming forward, and be prepared for your Subject Committee to request an update from your Ministers.

Your local Committee Liaison Officer will be able to assist you with contacting your subject committee. Ask Catherine Lobban if you do not know who your CLO is, or you can check here.

The Scottish Parliament now has new powers to scrutinise legislative proposals coming from the Commission to ensure that the proposed action is at the correct level of governance, that it respects the principle of subsidiarity. This means that the Commission cannot suggest legislation enabling them to take action at an EU level which would be more properly done at a Member State, or even regional level.

This scrutiny happens through the Explanatory Memoranda system, (see page 16). If you receive an EM to look at, and have any concerns that the proposal breaches subsidiarity flag this up to Europe Division immediately. We will then notify the clerks of the EERC who will in turn consult the Subject Committee responsible for the policy area in question.

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SECTION TWO: Early Opportunities

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HORIZON SCANNING

In order to engage effectively and early enough to be useful it is important to know what legislative proposals the Commission is planning to bring forward. The simplest way to do this is to keep a regular check on their website. http://ec.europa.eu/index_en.htm

The Commission’s Work Programme gives a strategic overview of its priorities for its 5 year session, detailing where the focus of its work will be. Look at this to check whether any of their plans will impact upon your policy area. http://ec.europa.eu/atwork/programmes/index_en.htm

Each Directorate General within the Commission has their own pages, with regular updates on what they are developing. http://ec.europa.eu/about/ds_en.htm

Each DG will also produce roadmaps, highlighting key milestones in major policy initiatives and opportunities for engagement. http://ec.europa.eu/governance/impact/planned_ia/roadmaps_2011_en.htm

The EU Calendar gives a daily breakdown of what work is progressing with links to relevant documents.http://europa.eu/eucalendar/

The SG EU office provide a weekly overview of activity in Brussels and a look to the week ahead which you can sign up for. Contact Nicola Calderhead to receive this. Our desk officers there are also very plugged in to policy developments and can help you keep up to date so do think about how they can help you.

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EXPLANATORY MEMORANDA

The Commission will publish their policy position at keys points throughout the negotiation of a proposal. The UK Government then has 10 working days to produce an Explanatory Memoranda (EM) which can serve as a useful flag for new policy developments.

EMs are a briefing mechanism used to inform the UK Parliament of EU legislative proposals and other activity that might lead to EU legislation, such as European Commission consultation papers. They provide an explanation of the issue and an outline impact assessment, looking at financial, legal and political implications. The Devolved Administrations should be consulted when an EM is being prepared so that we can advise whether the proposal would have any impact in an area of devolved competence, and where appropriate provide suitable text for inclusion in the EM.

Step-by Step Guide for Policy leads

1. Receive the commissioning minute and EU documents from Europe Division.

2. If not for you, immediately return documents to EM inbox, with details of an appropriate colleague wherever possible.

3. If for you, consider whether the proposal breaches the subsidiarity principle.

4. If you think it could breach subsidiarity, reply to the EM inbox indicating this and call Europe Division immediately.

5. Contact the Whitehall lead as indicated in the covering email to advise either a) Scotland has no policy interest, or b) that you will be supplying comments for inclusion. Copy EM inbox in to your emails.

6. If you have comments to make ensure you provide them within the 10 day deadline.

7. Save the final version when you receive it from Europe Division.8. Be prepared to respond to the Scottish Parliament with an outline Scottish

Government position (see Annex A for example).

Full guidance is available on Saltire http://intranet/InExec/AboutUs/Directorates/InternationalConstitution/EuropeanAffairs/Memoranda

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CONSULTATIONS

The Scottish Government’s Action Plan on European Engagement states:

“We are committed to responding to European Commission consultations both through the UK response and, where it adds value, with a separate Scottish response.”

First Question – A separate Scottish Government response?

This depends on a number of things, but a good start is whether it will add value – will it raise Scottish Government profile in the Commission? Will it highlight a particular aspect of relevance to Scotland that might not be fully covered in the UK response? What view would your SP subject committee take?

Why?

By being pro-active we can play our part in the formation of EU policy with the ultimate outcome being better policy for Scotland. Do we need to do anything differently? Critically – how can we influence discussion to ensure a good outcome for Scotland?

What?

A Commission consultation is an integral part of policy formation – it’s an early opportunity to engage with Commission officials and help shape a proposal. The Commission’s Interactive Policy Making website explains how the consultation process works.

An EU consultation can take different forms – it might be a Green Paper (a discussion document intended to stimulate debate and launch a process of consultation, at European level, on a particular topic), a White Paper (documents containing proposals for European Union action in a specific area), or a survey of some sort.

Likewise the response will take one of 3 different approaches:

The SG position should always be represented in an agreed UK wide response – a letter/paper which fully encompasses all devolved administrations’ positions.

A slight variation to this – a separate SG response is prepared but is submitted together with the UK one – as an overall package.

Lastly – a completely separate SG response, ordinarily one that does not contradict the UK response – the UK is the Member State not Scotland – but adds additional detail such as specific Scottish achievements or strengths.

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However, if presented with a scenario where our fundamental position on an issue is evidently different, a separate SG response, directed by your Minister and non aligned to the UK response, may be required (for example, the SG CFP Reform Green paper response).

It might be a letter from your Minister or your Director which, depending on how the consultation is structured, could be addressing a paper, or answering a specific set of questions.

Where?

All open and closed consultations can be found at the YourVoice website.

How?

There is no one-size-fits-all approach, but hopefully the guidance below will help you think through the main issues:

Timing – An obvious one but make sure you know the deadline for responses. Draw up your own schedule by working back from the deadline, incorporating sufficient time to consult and for Ministerial clearance.

Liaison with UK Government – In order to decide whether a separate Scottish Government response is appropriate you will need to be aware what the UK Government are planning. Use your day-to-day contacts, or if you are unsure who will be dealing with the consultation, UK Relations Team or Europe Team should be able to help. Having ensured you have fed into the UK response you may decide a separate SG response is also appropriate. As discussed above, submitting a SG response alongside the UK one might be the most appropriate course of action. If you decide on an entirely separate SG response you should keep the UK Government informed and it is good practice to share a copy prior to submission. Likewise it will be important to work closely with the lead UK Department to ensure that they are giving proper consideration to SG views as they prepare their response and that their final version is circulated to our Ministers for formal consideration of the agreed UK position.

Industry/stakeholder consultation – It may be appropriate for you to consult with relevant external stakeholders to inform the SG response or to encourage them to consider making their own response to add weight to a common ‘Scottish’ position. The Commission’s consultation process is not limited to governments, but extends to individuals and companies/organisations, although normally submissions from the 27 Member States carry the most weight.

Ministerial Clearance – Will the content require Ministerial clearance? This is not always necessary, but is advisable on sensitive issues.

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Submitting to the Commission – Often the response can be submitted electronically (this can be followed up by a hard copy). However it may be worth considering whether a lead policy officer, Brussels Desk Officer, or even a Minister could deliver the submission in person to the relevant official or Commissioner in the Commission. Face to face contact with the policy makers is always useful.

Publication - All policy teams should publish the letter or response on their section of the Scottish Government Website (PDF form is probably best) and pass a final copy to the European and External Relations Committee of the Parliament and relevant subject committee and also to appropriate stakeholders.

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PROJECT MANAGEMENT

Consider early on how a policy proposal could be implemented in Scotland. This will help ensure that any forthcoming transposition phase is carried out in the most effective and least burdensome manner. Treat the proposal as a project which may potentially progress through to other stages (negotiation, transposition, implementation and review). As you move through the various stages, utilising this approach will allow you to pass on expertise gained from one stage to the next and make sure all relevant parties are kept involved.

Project Planning

To allow you to manage the proposal properly, set up a project team. This might include policy officials, lawyers from SGLD, officials from Europe Team/SGEUO and key delivery partners. As part of this process senior management will want to consider resource requirements, allocating sufficient time and staff to enable thorough engagement from initial consideration through to transposition and review.

The team will need a project manager to coordinate any tasks and make sure they are delivered on time. Involve your colleagues from other directorates so that all interests are covered. A senior official, to whom the project manager reports, should have oversight of the team and be ultimately responsible for delivering all the key objectives. This should help to provide a strategic focus, leadership and direction to the project, ensure that there is an effective transfer of knowledge between negotiating and transposing teams and that the transposition process is started as early as possible.

Draw up a project plan at the earliest stage to deal with policy discussions, setting out key milestones and allocated tasks. It may be helpful for you and your colleagues to undertake project management training to help you organise the work involved. A range of options will be available, and you should consult with your Development Adviser on the best ones for you. Speak to Europe Team about the support you require at an early stage.

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LOBBYING

A formal indication that the Commission is planning a proposal will be given when it appears in the Commission’s legislative work programme (published annually) or in one of the formal strategies adopted by the Commission from time to time (such as the 6th Environmental Action Programme). (See section on Horizon Scanning, page 15).

During this phase, draft legislation will be developed by the lead Directorate General (DG) in the Commission. This is therefore an important time to seek to influence the Commission

. You’ll need to: analyse the proposal to work out your priorities; assess what is negotiable and what compromises you can accept; and ensure you are included in the development of the UK line.

Key issues to consider when thinking about a negotiating line: Is EU legislation appropriate? Consider proportionality and subsidiarity. Are

there alternatives to regulation? If so, it is extremely important to lobby the Commission before it makes a proposal.

Is there competence creep? Again we should be challenging this via the UK as soon as possible so discuss with your lawyer.

What is the impact of the proposal? Has the Commission produced an adequate Impact Assessment?

Is the draft in line with Scottish objectives? What would need to be done to domestic legislation? Does Scottish legislation go beyond the EU proposal? If so, consider how to address potential goldplating.

Is the drafting of the proposal sufficiently clear and unambiguous? This is important to avoid problems during the transposition and implementation phase.

Is there sufficient time allowed to transpose and implement the measure?

Consider the practicality and enforcement of the proposed legislation.

Analyse the proposal

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The Commission may adopt communications, green papers and white papers as part of the development of a formal legislative proposal – although these documents are not in themselves legally binding it is essential to influence them as they will help to set the direction for a formal proposal. Initial lines should focus on the key principles and direction of a forthcoming proposal. These lines can then be refined further as the negotiation progresses. Once a proposal has been made then a more detailed negotiating line will be required.

The process of getting agreement across 27 Member States means that the Presidency will have to seek to narrow down issues under discussion and force Member States to focus on the issues most important to them. The opportunities to influence are therefore much greater earlier in the process before positions have become entrenched.

Ensure you are included in the UK position

Early consultation with the lead UK Department and with regulators is extremely important to get a full picture of the potential impacts of a proposal. The Westminster European Affairs Committee is required to approve the UK line before the UK can sign up to an agreement in Council. Scottish Ministers should be included in any EAC write-round which relates to a matter with devolved interest. These write rounds can have tight deadlines so be prepared to get Ministerial clearance quickly. Close working with your UK counterparts can help this process go more smoothly.

This is particularly important for agriculture and fisheries matters, where the views of Scottish Ministers may differ significantly from the UK Government and these differences need to be discussed at the earliest possible stage in developing the UK position.

You should observe the Concordat on Coordination on EU Policy Issues which sets out how Whitehall departments should work with us on the negotiation and implementation of EU legislation. It is worth taking the time early in the negotiations to build good relations with all interested colleagues in the office and the other DAs so that you are able to call on them at short notice later on.

Remember that Wales and Northern Ireland can be useful allies if Scotland takes a different position on a matter to the UK Government.

One Scotland – Many Voices

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Stakeholders can be a very effective way to inform our position and promote our messages. Interested parties, such as NGOs and industry who have an interest in the proposal will be active in lobbying Member States and the Parliament. Their views and the impact of their lobbying should be taken into account in developing a negotiating strategy. It is therefore very important to provide stakeholders good quality information about the proposal.

Where their views are consistent with Scottish Government views, they can support a negotiating strategy by reinforcing direct Government lobbying as they often have excellent communication channels, particularly in the European Parliament. Positive stakeholders can be used to persuade more sceptical members.

A matrix can be a very effective tool for helping you to determine how to communicate with and use your stakeholders. Use this information to help develop an effective negotiating strategy which takes into account the dynamics of the negotiation: who are our allies? Can we use them to influence others? Who do we need to persuade and what arguments would they be most receptive to?

It’s crucial to consider opportunities outside the formal settings. Every opportunity to influence should be exploited, from informal coffees with relevant officials to participation in stakeholder events. If you can develop personal relationships, it can help later on when you look for compromises. Making our position known to a wider audience will help, even if they are not always sympathetic.

Influencing the Commission

There are many different ways to influence the Commission. Informal contacts developed by UKRep and SGEUO can gain access to draft documents before they are available officially.

The Commission often run workshops to help develop policy. These are an invaluable opportunity to develop relationships with officials, to represent Scottish views and nip proposals in the bud.

Don’t ignore other DGs. If you believe that DG Agri or DG Env are making proposals that are inconsistent with the EU Smarter Regulation run by Sec Gen, then make that point to officials in that unit.

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Influencing the Council

Building contacts with other Member States early on will help you to understand their positions and their principal concerns, and identify possible allies to work with (and perhaps use to put forward our views). It’s never too early to open these channels and, subject to resources, worth investing time to go to see colleagues in key Member States such as France, Germany, Poland and current and forthcoming Presidencies. Pan-European bodies, eg Copa Cogeca, can also carry a lot of weight, sometimes more so than a small group of Member States.

Influencing the Parliament

Influencing the European Parliament is just as important as influencing in the Council. The Parliament has the power to make proposals fall so needs to be taken seriously. Indeed, a particularly useful way of getting Scottish ideas into the final text without spending your negotiating capital is to convince influential MEPs to get them included in the EP’s opinions. You’ll need to understand the dynamics of the Parliament. SGEUO can really help with this and with setting up meetings with sympathetic MEPs. It is essential to make as much use of potentially helpful MEPs (particularly, but not exclusively, Scottish MEPs) as possible. If you can make early contact with key MEPs active in the area, you will be in a position to move quickly later in the negotiations when deals are being made with the EP. Regulators, such as SEPA, can have

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BUILDING CONCENSUS

Energy and Climate Change is a priority dossier for the UK, the Scottish Government and the other devolved administrations in taking forward policy at the EU level. Scotland has worked very closely with the UK at official level to bring together a group of 8 member states (UK, Ireland, Portugal, Spain, Denmark, France, Belgium, Netherlands), the British-Irish Council (including the devolved administrations), and Norway, with an interest in seeing marine energy (wave, tidal) supported at an EU level. The group met over a period of 15 months to agree a common position paper on Marine Energy, calling for the Commission to give the sector its full support under the EU Strategic Energy Technology Plan. The position paper was launched to coincide with the November 2011 Energy Council via a press release, and through both UK and Irish speaking contributions in Council. The Energy Ministers from the UK, Ireland and Scotland personally handed copies of the paper to the Energy Commissioner in the margins of the Council. By investing carefully in our relationship with the UK, with other member states and devolved administrations with a common interest, Scotland can position itself to influence important debates such as climate and energy within the EU.Ross Loveridge, Head of CCS and EU Energy Policy, SGEUO

high credibility with MEPs and could be used to deliver messages through face to face lobbying.

SECTION THREE: Negotiations

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JUSTICE AND HOME AFFAIRS OPT IN

Protocol No 21 relating to Title V (JHA legislation) of the Lisbon Treaty carries forward and extends the JHA opt in to criminal law, as well as to civil law and other measures where this applied under previous Treaties. This provides that the UK and Ireland are not bound in any way by Title V measures, unless they opt in, in accordance with the Protocol.

The nature of that choice varies according to whether the measure is a new proposal, or if it has already been adopted by the other Member States and the European Parliament (in co-decision dossiers). With new proposals the Protocol provides that the UK has a right to opt in, but that if it wishes to do so it must write within 3 months of the proposal being presented to the Council.

The Protocol provides that the UK may also opt in at any time to a measure which has been agreed and adopted (and to which it has not opted in initially), but in those circumstances it can only do so if the Commission issues a decision agreeing to the UK’s opt-in, or the Council if the Commission has refused. There is nothing in the Protocol to prevent the UK from attending and speaking in negotiations in the Council on a proposal which it has not opted into. However, in practice the UK’s views may be less influential and it has no vote in relation to such proposals. Once the UK has opted into a proposal or an adopted measure, that opt-in is irreversible.

The scope of the opt in should cover all the forms of legal act listed in Article 288 TFEU (ex-Article 249 EC - principally directives, regulations, decisions). This may include EU legislation, or legal acts concerning international agreements concluded by the EU. The UK position is that a measure can be adopted under combined Title V and non-Title V legal bases, if the EU institutions in doing so are prepared to accept that the UK’s opt-in applies in relation to the Title V elements of the measure.

Legislation which builds on the Schengen Acquis (‘Schengen building measures’) may be adopted under a Title V legal base. However, it is in general the opt-in provisions of the Schengen Protocol which apply to such legislation rather than those of Title V because the former prevails over the latter. What is a Schengen building measure is a complex matter, even more so for the UK, which participates only in police and judicial co-operation elements, and not measures supporting the abolition of border controls. While the UK is thus automatically excluded from new measures deemed to be building on elements of the Acquis where it is not in the underlying measures, it is by contrast viewed as being automatically in new police and judicial co-operation measures, in contrast to other JHA subject matter referred to above, although there is the possibility in this case of applying to opt out.

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The UK Government normally decides on these issues at Ministerial level. The lead UKG Minister should also write at the same time to Scottish Ministers seeking SG views on devolved elements. With new measures, this normally happens close to the 3 month deadline. It is therefore important in dossiers with a strong devolved interest that policy leads are in touch with their counterparts in UKG well in advance of the formal correspondence.

For further policy advice on these matters contact the Justice EU Team, or for legal issues the SG EU Solicitors Group.

NEGOTIATIONS

The Commission has the sole right to initiate EU legislation and therefore formal negotiations always start with a proposal from the Commission.

Ordinary Legislative Procedure

EU COMMISSION

EU PARLIAMENT(citizens)

COUNCIL OF THE EU(national governments)

Proposals Proposals

ConciliationAmendments

When negotiations begin in Brussels on the legislative proposal, continue to work closely with your UK counterparts. The legislative proposal is initially discussed within the Council at the working group stage, where all Member States and the Commission are represented by officials.

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Attendance at Working Groups

You should consider the benefit of attendance at working groups if there are specific Scottish interests at stake. Speak to your UK counterpart about attendance; even if there are no Scottish-specific interests, it may be worthwhile attending a meeting to get a feel for the process. When attending a meeting for the first time, discuss protocol issues with your SGEUO desk officer. (See Annex B for practical tips on attendance)

Once a legislative proposal has been through the officials working group stage, it passes up to Ministerial Council meetings for formal sign off.

The Cabinet Secretary for Rural Affairs attends meetings of Council on a regular basis to ensure Scotland's needs are taken into account in the finalisation of agriculture and fisheries policy. Justice Ministers, including the Minister for Community Safety and the Law Officers, regularly attend the Council on Justice and Home Affairs, to protect and promote Scotland's distinct legal system.

Once negotiations have been finalised, and the Council and Parliament have agreed the legal text, it will be adopted and published in the EU’s Official Journal It then becomes law, and takes effect on the date specified within the document.

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ATTENDING WORKING GROUP MEETINGS Agriculture and Fisheries is a busy area in respect of Council Working Groups -

it would be quite possible to spend every day attending a different meeting in Brussels. UKG officials usually travel out to attend; typically it will be a UKG official from either UKRep or the home department who will take the UK seat at the table. Where the discussion is of interest to Scotland, a representative from the Scottish Government should aim to attend to support their UKG colleagues.

Coming to Working Groups not only offers the opportunity for Scotland to provide advice and technical assistance to the UK (often critical in areas such as fisheries) but it is also an opportunity for Scotland to hear first hand in a timely manner how policy is being discussed by the Commission and other Member States. The intelligence gathered during such meetings is often integral in helping us to develop our own thinking on key issues.

An additional benefit of attending Working Groups is that they provide ideal opportunities for officials to build relationships with their counterparts in both other Permanent Representations and Member State capitals. These working relationships are often invaluable when it comes to negotiating policy and the setting up of Ministerial level meetings. Becce Diggle, Ag & Fish Policy Advisor, SGEUO

Council Procedure

Working Groups• Officials

COREPER• Ambassadors/

deputy ambassadors

Council• Ministers

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STAGE FOUR - TRANSPOSITION

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TURNING EU LAW INTO SCOTTISH LAW

Europe Team monitors the EU Official Journal on a weekly basis and passes on published obligations to the appropriate policy official for action. You should also be notified through your UK contacts.

EU legal obligations usually come in one of two forms, regulations and directives.

Regulations apply across the EU immediately, as drafted, and therefore do not need any further transposition to come into force in Scotland. This means that neither the Scottish Government nor the Scottish Parliament need to do anything to transpose an EU regulation. However, you may need to produce enforcement legislation to enable Scottish courts to actually deliver the Regulation. Check the text carefully and consult with SGLD.

Directives are different. Instead of being binding as drafted, directives focus more on the intended result of legislation, leaving Member States a degree of flexibility regarding how they achieve those ends. They also come with a transposition deadline, indicating when Member States need to have brought their legislation into force.

Regulations are the same across all 27 Member States, whilst Directives achieve the same result but get there in many different ways, known as differential implementation. These differences are not just at member state level but can also be at sub-state level, meaning that Scotland can take a different approach to England or Wales if appropriate. This is why it is so important to be fully engaged in the negotiation process, and why you need to think about how you are going to implement EU proposals from the outset.

If you receive notice of the publication of a directive you will need to start work on transposing it into domestic law. Reconvene the project team and develop your next steps.

Be aware that the Westminster coalition have introduced a policy of ‘copy-out’ meaning UKG transposition will increasingly adopt the principle of simply copying the text of a directive straight into domestic legislation. This removes the element of policy development usually associated with transposition to ensure domestic legislation reflects UK, or Scottish, requirements. The Scottish Government has not adopted copy-out so we may see greater divergence in transposition in the coming months (see p34).

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TRANSPOSITION PLANNING

Although the transposition deadline may be two or three years away, you will have a number of issues to consider. Starting early allows you to balance your priorities, transpose at a steady pace and ensure all the relevant issues are taken into consideration. You may also find it helpful to attend a transposition working group in Brussels in order to tap into the thoughts of other Member States and sub-national administrations. Check the appropriate DG websites for details of such opportunities.

Reconvene your project group as soon as you know a directive has been published, and plan out how you are going to take transposition forward.

This list offers some important things to consider during the transposition process, but it is not exhaustive, each directive will bring its own issues:

Discuss all the options with SGLD at an early stage. Consider carefully what the purpose of the obligation is. What should it

achieve for Scotland and the sectors of society it affects? Do not automatically assume that legislation will be required, or that a

directive needs to be implemented word for word. Consider innovative solutions that deliver benefits while placing a minimal burden on those affected.

Check whether there is any legislation already in place that partially (or even fully) transposes the requirements of the directive. This is entirely possible, and it may save you some work.

Consider the range of domestic legislation that is currently being taken forward and ensure that your own measures combined with these other proposals are not placing an undue burden upon stakeholders.

Where there is a doubt about the precise legal route to take, submit the options to your Cabinet Secretary/Minister, explaining the advantages and risks attached to each, covering economic, social, environment and legal aspects.

Involve stakeholders such as local government or public bodies who may have responsibility for implementation and delivery 'on the ground'. They have useful practical expertise which should be harnessed.

Aim for clear national legislation, even if the wording of the obligation is unclear. Where practicable do not simply copy the text verbatim, but rather focus on legal effect, and the burden on and benefit to stakeholders.

Where there is confusion over the precise meaning of the wording, come to a common position in consultation with legal advisers and other Member States. Avoid over-elaboration for the sake of covering all potential interpretations. Ask the Commission.

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Where the obligation provides for flexibility or derogation, the views of key stakeholders and the outcome of the regulatory impact assessment will be particularly important. In such circumstances, not using flexibility may be perceived as over-implementation, and the general principles of better regulation should be followed.

Bear in mind that it is important to ensure a level playing field for Scottish business operating in the UK economy and markets. Introducing a regulatory environment which is significantly different from the rest of the UK or fails to take into account the needs of business may potentially undermine Scotland's reputation as an excellent place to do business in Europe. Equally, consider whether there may be economic advantage to Scotland if we are able to implement legislation in a less burdensome way than others.

Have regular discussions with your UK and devolved counterparts - particularly if developing a common approach is a priority. This will also be useful in terms of sharing best practise and finding solutions to common problems. However, bear in mind that the UK Government's approach is not necessarily the best one for Scotland - be mindful of our specific circumstances, and be aware that waiting for the UK to implement may lead to a delay for us.

Examine the approaches of other Member States or sub-state regions. For example, Denmark has a good reputation in the field of environmental legislation and, being of a similar size to Scotland, may share similar issues. The Commission may set up working groups to help Member States implement the obligation which could be of interest. Speak to your SGEUO desk officer about this.

Avoid over-implementation, also known as ‘gold-plating’. The Scottish Government supports the UK Government’s Better Regulation Strategy aimed at eradicating gold-plating, with the aim of avoiding putting undue legislative burdens on the public.

In those cases where it is appropriate to go beyond the minimum requirements of the directive, the implementation plan accompanying the legislation should be absolutely clear as to the reason why this is happening. You must ensure you can link the reason to a clear domestic priority. Encourage stakeholders to make contact with you if they think unexplained or unnecessary over-implementation may be occurring.

Do not under-implement. Implementation of EU law is an obligation. Under-implementation raises a risk of infraction proceedings.

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DIFFERENT APPROACHES

There are three distinct ways in which the Scottish Government can transpose a directive:

Option 1: Scotland will take a separate policy approach from the rest of the UK, and legislate to transpose the directive through its domestic institutions.

Option 2: Scotland will take a similar or identical policy approach to the rest of the UK, and legislate to transpose the directive through its domestic institutions.

Option 3: Scotland will take an identical policy approach to the rest of the UK, and seek to have the directive transposed through the UK Parliament under Section 57(1) of the Scotland Act, either partially or fully.

Bear in mind that not all scenarios will fit easily into these three options (for example, you may find it appropriate to have the transposing legislation laid by the UK Government at Westminster while putting the implementing measures on the ground through Scottish institutions).

The Scottish Government's presumption is that where the directive falls within a devolved area of responsibility, we will implement that directive through our domestic institutions. In deciding what approach to take, consider the following:

Which approach will lead to a better outcome for Scotland? Do you have the resources to implement in a certain way? Does the directive impact on both devolved and reserved responsibilities?

If so, would a certain method of implementation cause disproportionate difficulties?

Are there strong internal or external arguments for a certain approach? For example, stakeholders may prefer to operate under a single coherent UK regulatory framework, rather than two sets of identical laws.

Agreement for implementation under Section 57(1) must always be obtained from your Cabinet Secretary. Remember the political sensitivities of allowing the UK to implement where the Scottish Parliament could reasonably be expected to do so. For political reasons, should we implement an obligation a certain way in Scotland?

Are there Scottish-specific issues which would be better dealt with by having a certain approach to implementation?

Do we agree with the approach to implementation being taken by the other UK administrations?

Is there is a legal view on how we should transpose a directive which is not shared by other administrations in the UK?

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WEIGHING UP THE OPTIONS

Option 1: Separate Policy Approach with Scotland Implementing

It may often be most appropriate for Scotland to take a separate policy approach to the rest of the UK.

In these cases:

seek clearance from Ministers on your approach; consider carefully the resources required to carry out separate

transposition and implementation; consult widely with stakeholders on your alternative policy approach; work with SGLD to develop the implementing measures; work closely with your UK counterparts to ensure that their policy and

legislative approach is compatible and will still result in a good outcome for Scotland; and

consult on the implementing measures with stakeholders.

Option 2: Similar or Identical Policy Approach with Scotland implementing

It may be most appropriate for Scotland to legislate separately but in conjunction with the UK policy approach. In these cases:

seek clearance from Ministers on your approach; work with SGLD to develop the implementing measures; work closely with your UK counterparts to ensure parity of approach; and consult on the implementing measures with stakeholders.

A close working relationship with UK counterparts will be important. It is likely that the lead UK Government Department (and possibly the other devolved administrations) will have drafted transposing legislation, and you may be able to transpose in Scotland more efficiently by drawing on such a draft as a template for a separate Scottish instrument. Always ask UK colleagues for a copy of any draft legislation they have available, although be careful to avoid unnecessary

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SEPARATE POLICY APPROACH

The Strategic Environmental Assessment (SEA) Directive has been transposed in the UK through four separate sets of legislation in Scotland, England, Northern Ireland and Wales respectively. Each set of legislation has some differences from the others but the Scottish version has diverged the most. In particular, Scottish Ministers afforded consultees much stronger levels of involvement in the decision making process and gave SEAs greater scope of application.

delay in taking forward transposition by waiting for the UK to act. Keep in close touch with UK counterparts to ensure you are aware of their approach and they are of yours.

In many cases, implementation policy will be similar or identical across the UK. However, you should note that whatever our approach, measures in Scotland will never be exactly the same as they are in England, Wales and Northern Ireland, if only because of our different legal system. Transposition in Scotland will not be 'easy' because of a common policy approach across the UK. Allow sufficient time to identify and resolve the separate Scottish implementation issues.

Option 3: Identical Policy Approach with the UK Implementing (partially or fully)

It may be most appropriate for the UK to legislate on Scotland's behalf under Section 57(1) of the Scotland Act.

In these cases:

seek clearance from Ministers on your approach; and work to ensure that Scottish-specific interests (both those of Scottish

Ministers and stakeholders) continue to be represented throughout the transposition and implementation process.

Consult appropriately with stakeholders and ensure that Scottish views continue to be fed into the process, despite the implementing legislation now being taken forward by the UK Government and the Westminster Parliament. Ensure the relevant portfolio Minister writes to the Convener of the appropriate Scottish Parliament Committee to explain the reasons for the approach.

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SIMILAR POLICY APPROACH

The Sulphur Content of Liquid Fuels (Scotland) Regulations 2007 are very similar to The Sulphur Content of Liquid Fuels (England & Wales) Regulations 2007 but Scottish Ministers used their own powers under section 2(2) of the European Communities Act to bring in the legislation.

IDENTICAL POLICY APPROACH

The Waste Electrical and Electronic Equipment (WEEE) Regulations 2006 implement certain waste collection and recycling obligations arising from the WEEE Directive. Some of these obligations are within the devolved competence of Scottish Ministers and could have been implemented separately in Scotland. However, in order for the scheme to operate more efficiently and consistently it was decided that a UK-wide approach should be taken, hence a single piece of legislation has been made which applies across the UK.

IMPLEMENTATION PLANS

Once your Project Team has had its initial planning session, and has an indicative idea about whether legislation is required, you must submit an implementation plan to the Scottish Parliament, and copy to Europe Team.

Work with SGLD to draw up an implementation plan (an example is set out at Annex C). This should be submitted to the relevant subject committee no later than 12 weeks following the publication of an obligation. This is a crucial element in improving transparency in the way we implement EU obligations.

SSI TRACKER

During your initial planning session, if you have decided that Scottish legislation may be required, you will need to ask your lawyer to enter the details onto the SSI Tracker. When they fill out the details relating to the EU measure you will receive an automatic email reminding you to submit an implementation plan to the Parliament.

You should use the SSI Tracker to record policy issues throughout the development of your transposing legislation. You can note progress or changes to your plan on the Policy Issues page which is specifically for policy officials to edit. Full guidance can be found here http://sa45eda/lcs/tracker%20guidance/Wiki%20Pages/Home.aspx

POLICY SCRUTINY

Consulting on Transposition

For all three options you will need to consult stakeholders on a variety of issues including your policy approach, any legislative proposals, and your use of administrative and enforcement provisions. Normally the aim will be to keep the regulatory burden to a minimum. Where you propose going beyond the minimum requirements of a directive, consult widely, explaining why you think there is a need to do so. Set out the benefits of your approach clearly, to encourage stakeholder backing. Proper engagement with stakeholders will help to ensure that any concerns about over or under-implementation are dealt with at an early stage.

In terms of the consultation process, refer to the official guidelines on how to consult. Consider taking an innovative approach which involves a large cross-section of partners. Methods which have proven successful in the past have included group workshops and large scale conferences.

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Business and Regulatory Impact Assessment

All policy changes, whether European or domestic, which may have an impact upon business, charities or the voluntary sector must be accompanied by a Business and Regulatory Impact Assessment (BRIA). The BRIA helps policy makers to think through and analyse the costs and benefits of the proposed legislation. It also ensures that the impact on business, particularly small enterprises, is fully considered before regulations are made.

The BRIA improves the quality of advice given to Ministers and encourages informed public debate. It is the Scottish Government's policy that departments and agencies who exercise statutory powers and who make rules with a general effect on others should produce a BRIA. A final BRIA is signed by the accountable Minister and copies are placed in SPICe (Scottish Parliament Information Centre) when the transposing legislation is presented to Parliament. Copies are also sent to the lead Committee, Parliamentary legal advisors and the Better Regulation team who publish it online.

Detailed guidance on Business and Regulatory Impact Assessments, including guidance notes, template and toolkit, can be found at http://www.scotland.gov.uk/Topics/Business-Industry/support/better-regulation/guidance.

A key point is that you should start the BRIA process as early as possible in the policy cycle and refresh the assessment as required, including in implementation and evaluation phases. For further information, you should contact the Better Regulation team within Business Directorate.

Technical Standards

If your legislation will include any technical specifications, ie water pipes need to be Xmm wide, or fishing nets need to be made of a particular type of rope, then you will need to inform the Commission. This notification needs to take place whilst your legislation is still in the draft stages, and the Commission need to be given 12 weeks to consider whether your proposals breach the terms of the Technical Standards Directive, so you need to build this into your timetable.

Consult with SGLD if you are unsure whether your regulations include Technical Standards.

The Department for Business, Innovation & Skills holds the portal for notifying such regulations to the Commission and can be contacted at 9834@bis.gsi.gov.uk.

Further information can be found on the BIS website here

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Equality Impact Assessment

The public sector equality duties for race, gender and disability require the Scottish Government to assess the impact legislation has on equality. Therefore, you must undertake an equality impact assessment (EQIA). The Scottish Government is committed to assessing its legislation and policies not only under the race, gender and disability strands but also for age, religion or belief, and sexual orientation bias. Contact the Equality Unit (x40694) for further information or refer to the EQIA toolkit on the Intranet.

Enforcement

Sanctions for breach of Community obligations need to be effective, proportionate and dissuasive. Where the directive does not specifically provide for any infringement penalty, it is at the discretion of the Member State as to what the penalty might be. In choosing a suitable range and mix of sanctions for non-compliance with any implementing legislation, you should try to ensure a fair and effective regime is put in place. Where appropriate, civil sanctions aimed at actively securing compliance should be considered, and criminal offences should not generally be applied across the board.

When implementing EU requirements, you may need to revisit the sanctions for existing domestic law. In particular, it is important that breaches of EU directives are treated as seriously as breaches of comparable ‘national’ obligations.

Consult SGLD and the appropriate Justice Directorates before you propose creating a new civil penalty or criminal offence or provisions for the investigation of offences. Whether you are considering the introduction of a criminal offence, civil penalties or right of appeal you must contact SGLD and Justice officials at an early stage in the development of your proposal to discuss and agree the consequences of your proposal for the workload of the police, courts or tribunal and for legal aid. In terms of EU competences, bear in mind that the EU has no power to determine actual criminal penalties, but may require the application of criminal penalties in certain cases (e.g. protection of the environment) for the obligation to be fully effective.

Whenever sanctions are imposed by Scottish legislation it is important that those bound by the legislation can easily understand what behavior will result in penalties. This is particularly important when the sanction imposed is by way of a criminal penalty. Legislation should therefore be clear about what constitutes a criminal offence and the sanctions which apply to that offence. If the legislation transposing an obligation is amended at any time, it is equally important that you make those bound by the law in question aware of the new rules by updating the relevant guidance on the legislation.

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DRAFTING LEGISLATION

All of the above considerations will go towards developing your drafting instructions to SGLD. When you are ready, give full policy instructions to SGLD either to draft the necessary secondary legislation themselves or, in the event that primary legislation is needed, to instruct Parliamentary Counsel. Please remember that legislation should be clear and proportionate in relation to the intended effect of the obligation.

The EU is debating making the provision of transposition tables obligatory, but at the moment this is still discretionary. It is Scottish Government policy to provide Parliament with a transposition note in all cases, clearly indicating how each element of the directive has been transposed in the Scottish legislation, except where doing so would require a disproportionate level of resources when balanced against the benefit for the reader.(Guidance on completing a transposition note is available at Annex D).

Guidance

Consider carefully with your stakeholders whether guidance for those affected by the legislation should be produced, and who should be involved in the production of such guidance. Bear in mind that the regulatory authority responsible for implementation will have a significant role, and their input into the development of guidance should reflect this. Other stakeholders may also have a significant input.

Try to keep any guidance as short, simply expressed and non-prescriptive as possible; avoid making it disproportionate in relation to the purpose and intended effect of the directive. The purpose should be to provide clear ‘signposts’ to enable those affected to follow the legislation. When drafting guidance, be careful to distinguish between statutory requirements and what is considered to be best practice. Confusion about the legal status of requirements in guidance can create additional burdens and costs. It may be helpful, where you are taking a different approach to the UK, to clearly set out the differences for the benefit of businesses that operate UK-wide. Clear practical guidance can help business and others comply with new legislation. Guidance should therefore be issued well before it comes into force.

Parliamentary Scrutiny

EU obligations are normally implemented through secondary legislation in the form of Scottish Statutory Instruments, but may occasionally be enacted through primary legislation. Any enforcement powers needed to fully implement an EU obligation also normally appear in secondary legislation. The relevant subject committee will scrutinise your legislation before it goes before the chamber,

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either for objections to be lodged, for it to be voted through or else debated in full session.

Details of the parliamentary processes covering Scottish Bills and statutory instruments can be found in the Scottish Government Bill Handbook and the Administrators’ Guidance on Scottish Statutory Instruments respectively.

SGLD will guide you on the type of procedure that applies, and help you choose between procedures where there is a choice.

NOTIFICATIONS

Once your legislation has been finalised you must ensure that the European Commission is aware that Scotland has transposed a directive. Europe Team is responsible for communicating this to the Commission using an electronic system, and you should get in touch to provide them with an electronic version of your legislation as soon as it comes into force. If the directive is particularly complex and has multiple provisions, you may wish to submit a correlation table (based on the transposition note) for the Commission’s benefit setting out exactly what legislation implements the relevant parts of the directive. Europe Team can notify this to the Commission along with the implementing legislation.

Failure to notify the Commission that you have transposed a directive will result in an automatic infraction from the Commission. For more details on this process see section on Infractions below.

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STAGE FIVE: IMPACT REVIEW

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IMPACT ASSESSMENT

Although the obligation has now been transposed into national law, this is not the end of the process. Implementation can have unintended consequences which, if left unattended, can sometimes lead to the Commission taking legal action against Member States. Stakeholders often play a key role in reviewing the effectiveness of implementation, initiating communication with all parties involved.

Monitoring Effectiveness

An impact review provides a useful check on how legislation is working in practice and whether actual costs and benefits are similar to those anticipated in earlier impact assessments. Policy choices which were suitable in the past may need to be reconsidered in the light of changing political, economic, social and technological developments. Risks which were considered high when the legislation was originally implemented may be down graded. Reviews are also helpful in terms of building up an evidence base to influence future policy-making in the EU. Most new directives have review periods built in by the Commission.

Ministers are committed to monitoring and reviewing the impact of legislation in order to ensure that obligations have the correct effect and are not imposing undue burdens. Factor in this requirement during the implementation stage by ensuring that a review date is incorporated into the project timetable, and refer to it in your impact assessment. If possible, schedule this to coincide with the Commission’s own review, if it intends to carry one out. You should be conscious of resources and avoid over-monitoring following implementation. Liaise with your partners and stakeholders on whether any aspect of implementation could be changed or improved in some way. It is important that even after implementation, we ensure that the laws we have introduced do not place an unacceptable burden at any stage in the future.

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INFRACTIONS

Infraction proceedings are the legal process by which the European Commission takes a Member State to the European Court of Justice for breach of its obligations under EU Treaties. This arises most commonly from improper implementation or faulty transposition of a directive. If Scotland was responsible for the UK receiving a fine HM Treasury would recover a proportion of the penalty, up to 100%, from the Scottish budget.

There are two types of infraction procedures brought by the Commission against a Member State: those brought under Article 258 and Article 260 of the EU Treaties. It is possible for one Member State to bring infraction proceedings against another under Article 259, but this is rare. Bear in mind that the Commission may initiate infraction proceedings on the basis of information received from interested parties in Scotland.

Scottish Ministers are committed to avoiding infractions whenever possible and dealing with them properly and in a timeous fashion when they do occur. They take a close interest in ongoing cases and you should ensure that they are kept informed of the risks and issues.

When handling infraction cases, consider the following:

All correspondence relating to infraction proceedings should be dealt with promptly and by the deadline prescribed by the Commission. Consult SGLD at the earliest possible opportunity.

Bear in mind that the infraction proceedings are taken against the UK as the Member State. Engage closely with the UK Department taking the lead on the infraction.

Where the case has a particular Scottish interest it may be useful to attempt engagement with the Commission directly on the issue. This can enhance the Commission’s understanding and improve the likelihood of the infraction being closed. Bear in mind sensitivities around UK relations if you take this approach.

It may be worthwhile engaging with the other devolved administrations and Member States to support any evidence given to the Commission on compliance.

Europe Team monitor the progress of infraction cases across the Scottish Government, and provide regular progress reports to Ministers. Make sure Europe Team are kept up to date on progress relating to resolution. Also update the SSI Tracker with details of your infraction (see user guidance on the SSI tracker page).

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Infraction proceedings stages

The Commission Infraction Chefs meet every month (except August & December) to consider cases, either instigating new action, progressing a case forward, or closing proceedings.

EU Pilot Project Cases

Since April 2008 the Commission has been running a pilot scheme with 15 Member States, including the UK, aimed at improving the efficiency of the infraction process by providing an early opportunity to investigate claims of breached legislation, prior to formal infraction proceedings. Member States are usually given 10 weeks in which to respond directly to the complainant (unless they prefer to remain anonymous), with a copy of that response also sent to the Commission. If the complainant is dissatisfied with the response or the Commission considers that there is a genuine case to answer, the Commission can then consider commencing infringement proceedings in the usual way. These pilot cases need to be treated with the same urgency as a formal infraction.

Article 258 Letter

An Article 258 Letter is the first formal stage in infraction proceedings. It is normally issued when the Commission has concerns about the transposition or implementation of a directive by the Member State. The Member State is normally given two months to respond.

Jumbo 258 letters simply list those directives which have not been transposed on time. These also have a 2 month deadline, and responses should provide a firm commitment to finalise transposition.

Article 258 Reasoned Opinion

The Commission will issue an Article 258 Reasoned Opinion when it considers that the Member State is still in breach of its legal obligations. The Reasoned Opinion requires the Member State to comply with its EU obligations (as opposed to merely replying) within a given time limit, usually two months. The Reasoned Opinion must be dealt with fully and quickly in the light of legal advice and input from other colleagues with an interest.

For Scottish interests, if we do not intend to comply with the Reasoned Opinion, SGLD must be consulted on the strength of the Scottish case and the prospects of the UK successfully defending our position before the ECJ. Any response needs to be agreed with the UK Government.

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ECJ Referral Under Article 258

If a Member State fails to comply with a reasoned opinion within the prescribed period the Commission can decide to refer the matter to the European Court of Justice (ECJ) for a ruling on whether the Member State is in breach of the Treaty. The Commission will also lodge the formal Article 258 correspondence, including the replies to the formal letter and the reasoned opinion, with the application. When dealing with these early stages be aware that if the matter does go to the ECJ your responses will form part of the official court proceedings.

Under the court procedure, it is usually the ECJ that informs the Member State of the Commission’s application. They make an order for defences to be lodged (this is usually within one month but may be extended to two). Following consideration of the case, the ECJ will issue a judgement which must be complied with. Consideration can be a lengthy process and you may not hear anything for several months.

If the infraction is due to late or incomplete transposition of a directive into national law, the Commission can now request that the ECJ impose financial penalties on the Member State at this first referral stage. Under the Lisbon Treaty, only infractions relating to contested implementation progress to the Article 260 stages noted below.

Pre-Article 260 Proceedings

In the month following an Article 258 ECJ judgement, the Commission will send a letter requesting information on the measures taken to end the infringement. The time limit for response is normally 3 months.

Article 260 Letter

This is a formal determination by the Commission that the Member State has failed to comply with the ECJ judgement. The Member State is required to take the necessary measures to comply with the judgement within a specified time period, normally 2 months. Again, the reply will be issued on behalf of the UK Government and requires clearance between Whitehall and the devolved administrations. Due to the sensitivity of Article 260 proceedings an intergovernmental meeting may be necessary.

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ECJ Referral under Article 260

This is the final stage for non-implementation cases. In the court proceedings the Commission can recommend to the ECJ that it should impose a lump sum and/or daily penalty on the Member State. The ECJ will have regard to the duration of the infringement, its degree of seriousness and the ability of the Member State to pay. It also has regard in particular to the effects of failure to comply on private and public interests and to the urgency of getting the Member State concerned to fulfil its obligations.

The maximum fine that could be imposed on the UK is currently some €703,000 (£603,000) per day or some £220 million per year. Scotland would be required to pay a percentage of any UK fine (potentially up to 100%) if the infraction related to devolved matters, depending on the extent of our involvement.

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ANNEX A

Example of subsidiarity briefing for the Scottish Parliament

Single CMO Recast - Explanatory Memoranda 5084/11 – Scottish Government Views on Subsidiarity

The Scottish Government takes a proactive approach to engaging with the EU on the development of legislation. Where the Scottish Government believes an EU proposal breaches the subsidiarity principle we will raise this with the Scottish Parliament to initiate due scrutiny as specified in the Lisbon Treaty, feeding into the UK Parliamentary processes as appropriate. In this case, the Scottish Government supports the views of the UK Government, which has consulted with the Scottish Government, as outlined in paragraph 9 of EM 5081/11, namely, that there are certain aspects of the Commission proposal in relation to the use of surplus food stock which do not appear to comply with the subsidiarity principle. We share that view for the following reasons:

Legislative basis

The Single CMO Regulation 1234/2007, is in place to regulate the market in agricultural produce within the European Union. The CMO provides for the Commission to initiate market management measures to ensure continuity of prices and availability of produce on the marketplace. Such measures include the purchase of agricultural produce at a fixed price, to provide a floor to the marketplace, or putting excess produce into cold storage until the supply and demand returns to a more balanced position. In certain limited circumstances produce coming out of cold storage may not find a commercial buyer and has in the past been utilised for surplus food schemes or humanitarian aid purposes but that it is not the primary purpose or function of the CMO. It follows that the Single CMO is not in our view the correct measure to deploy when bringing forward proposals that provide for the purchase of food to deliver social benefits.

Social Policy

The case for the distribution of food to those who are in need will be determined by a number of socio and economic factors. Such factors will vary across the Union and it should therefore be within the competence of member States, and where appropriate regional or devolved administrations, to determine the appropriate circumstances for such measures and their duration.

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Links to other relevant material.

By way of further background, we enclose links to the following:   Lords Report (European Union Committee) from 28 October 2010 on subsidiarity principle in relation to distribution of food products to deprived persons:http://www.parliament.uk/business/committees/committees-a-z/lords-select/eu-environment-and-agriculture-sub-committee-d/news/distribution-of-food-products-to-deprived-persons-should-be-a-national-activity-not-for-eu-say-lords-committee/ Commons Report (European Scrutiny Committee) from 12 November 2010 on subsidiarity principle in relation to distribution of food products to deprived persons:http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/428-vi/428vi05.htm

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ANNEX B

Practical tip for attending Council Working Groups

Location: There are number of Council buildings used for working group meetings the most important is the Justus Lipsius Building the entrance to is just off Schuman roundabout at 175 Rue de la Loi, very close to the metro stop ‘Schuman’. The other main venue is the Lex Building two doors down Rue de la Loi.

As you enter Justus Lipsius, you first go through a security scan. Then go through the huge open press area to reception straight ahead. At reception, you can get a day pass by showing a copy of the meeting agenda and your passport. If you are going to attend regularly then ask UKRep to arrange an annual pass for you (which will also give you access to the Borschette conference centre, parliament and Commission buildings).

There’s a UK delegation room on floor 70, with a meeting room space, a computer, a printer, copier and space to leave any heavy bags if you need to

Check the screens in the corridor just beyond reception for the room number of your meeting. All meeting rooms have power sockets so you can plug in your laptop (provided you have a continental power adaptor), but very few rooms have internet access.

There is a café on floor 50 (floors are unconventionally named - 20, 35, 50, etc. – this represents their height above sea level); this is a good place to take a break and meet with fellow delegates. A Caffe latte is “a Lait Russe”!

Meetings usually start at 10am, but arrive at the meeting room a bit early and use the opportunity to introduce yourself to others. There may also be some new documentation to look through on arrival.

In the meeting room, a long table will be set out with places for delegates from each Member State. There will generally be one place for each MS (indicated by the nameplate), with 2 seats behind the main table for other delegates from each country.

The Presidency will be at the head of the table, next to a member of the Council Secretariat, and possibly someone from the Council Legal ervice. The Commission will sit opposite them at the other end of the table.

Member States will be in the order that they are due to take the Presidency, and move round one place clockwise every 6 months.

The Presidency will announce at the start of the meeting what interpretation is available. Interpreters will be sat in booths all around the room. The numbers on the booths indicate the number to get interpretation in the relevant language.

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The delegate representing the Presidency will the chair the meeting, and ask MS to intervene with their comments or suggestions.

The discussion will generally be around an English version of the texts, and the chairman may ask for written drafting suggestions to be submitted either during or after the meeting

To request to speak, turn your country name plate / flag up on its end. The chairman will call on each speaker in turn.

When they call on the United Kingdom, remove your headphones, turn on your microphone at the base and speak clearly into it.

Thank the chair (address as “Chairman” or “Mr/Madam Chairman”), and if appropriate, the Commission, and try to be considerate of the simultaneous interpreters.

Keep your intervention short and to the point and make sure you turn your microphone off and replace your name plate when you’ve finished. Bear in mind that your intervention will be translated into other languages – to assist the interpreters speak slowly and repeat your key points at the end to summarise

There is not always a break for coffee, but there are reasonably good vending machines close to the meeting rooms – keep a supply of 20c coins handy and you can slip out of the meeting to use them (but chose your moment carefully!)

Make an effort to arrange lunch with colleagues from other Member States. . This is a good opportunity to build relations with other delegations.

There is a canteen in the Council (although beware there is a surcharge for non-Council Secretariat employees on some dishes). There are also lots of eateries around the Schuman roundabout – Rue Franklin is very good for pizzas.

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ANNEX C

Example of an Implementation Plan

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:280:0001:0007:EN:PDF

Deadline for transposition -  27 October 2013

Key aims and main objectives of the Directive:

to lay down common minimum rules for interpretation and translation in criminal proceedings, enhancing mutual trust among Member States;

to ensure the right of suspected or accused persons to interpretation and translation in criminal proceedings with a view to ensuring their right to a fair trial (and to provide this for those subject to a European Arrest Warrant (EAW); and

to ensure that there is free and adequate linguistic assistance, allowing suspected or accused persons who do not speak or understand the language of the criminal proceedings fully to exercise their right of defence and safeguarding the fairness of the proceedings.

Policy options and intended approach to transposition and implementation

The initial assessment of the Scottish Government, the Association of Chief Police Officers in Scotland (ACPOS), the Crown Office & Procurator Fiscal Service (COPFS) and the Scottish Court Service (SCS) is that in the main, the Scottish criminal justice system effectively already complies with the spirit of the Directive. Suspects and accused persons in Scottish criminal proceedings are given access to interpretation and translation as appropriate, in order to ensure that their right to a fair trial is not imperilled.

The intended approach is therefore to build upon existing practice by, for example, ensuring that all translators and interpreters can provide a service of an agreed standard. Legislation may be required to create a right of access to interpretation and translation and this is being considered. This is considered to be likely to involve secondary legislation, although primary legislation has not been ruled out.

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Implementation will not go beyond what is necessary to implement the directive, although stakeholder bodies will explore the scope to approach interpretation and translation from a shared position, e.g. by creating a common ‘pool’ of interpreters and translators.

The reasons for policy approach, including any Scottish-specific interests that have been considered. The approach reflects the high level of interpretation/translation provision already in place for criminal proceedings in Scotland, as compared to a number of other EU Member States.

Specific measures planned for implementation (primary or secondary legislation)

The Directive applies to criminal proceedings and proceedings for the execution of EAWs. It applies at the point a person is suspected or accused of a criminal offence through until the conclusion of proceedings including sentencing and appeal.

Secondary legislation is most likely in relation to enshrining the rights in Articles 2 (Right to interpretation) and 3 (right to translation). This is on the basis that it will be possible to use section 2(2) of the European Communities Act 1972 to implement this EU Directive by secondary legislation. However, this position is yet to be clarified with SGLD. If it is not available, then primary legislation will be required.

Specific areas where legislation appears to be needed include: (a) A right to interpretation in criminal proceedings from point of becoming a

suspect to the resolution of any appeal. (Art. 1(2) and 2(1-2)). To include assistance for persons with hearing or speech impediments (Art. 2(2)).

(b) Right to interpretation for persons subject to EAW proceedings (Art. 2(7))(c) Right to translation of essential documents, including any decision to

deprive a person of their liberty, any charge/indictment and any judgement. (Art. 3(1-2))

(d) Right to translation of a European Arrest Warrant (Art. 3(6)).(e) Right to challenge a decision that there is no need for

interpretation/translation and/or to complain if quality is insufficient (Art. 2(5) and 3(5)).

(f) All costs of interpretation & translation to be met by state. (Art. 4). Although most costs will be met by the state at present, there may be some solicitor-client consultations where the person is currently obliged to pay for interpretation/translation. This is principally where the person is not eligible for legal aid.

(g) Interpretation and translation to be of sufficient quality (Art. 2(8) and 3(9)) (h) All translators/interpreters to be obliged to respect confidentiality (Art. 5(3))

The provisions in Articles 5 (quality of interpretation) and 6 (training) of the Directive may involve secondary legislation, although they are largely issues of

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practice. It is possible that some of the issues might require revised Rules of Court.

Any other measures that may be required to implement (e.g. administrative provisions)

The following non-legislative steps are likely to be required: (a) A procedure or mechanism to establish whether persons speak and

understand the language of the proceedings and whether an interpreter is required (Art. 2(4)).

(b) Any waiver of right to translation to be adequately informed (Art. 3(8))(c) Identification of the “essential documents” to be translated (Art. 3(1-3)). (d) The taking of “concrete measures” to ensure interpretation/translation of

sufficient quality (Art. 5(1)). (e) The establishing of a register(s) of translators/interpreters (Member States

are asked to endeavour to establish a register under Art. 5(2))(f) Government to request trainers of judges, prosecutors and judicial staff

pay special attention to communicating with an interpreter. (Art. 6)(g) Recording keeping obligation where oral translation of essential

documents has occurred (Art. 7)

Options or derogations from the directive (where applicable)

No derogation is envisaged. Article 1(3) of the Directive provides that where a sanction for minor offences may be imposed by an authority other than a court but that decision may be appealed to a court, the Directive only applies to proceedings before the court. This could, for example, mean that an offer to a suspect of an alternative to prosecution such as a procurator fiscal’s letter offering a fiscal fine might not necessarily have to be translated under the Directive. However, it is understood that Crown Office practice is already to provide a translation on request.

Key milestones and timescales throughout the implementation phase

End summer 2011 - establish legislative steps/vehicle to be used for implementation

Spring to Winter 2011 - cross-stakeholder discussions to agree implementation steps required

Winter 2011 to mid 2013 - put in place structures to ensure implementation (potentially including: establishing an accreditation scheme for interpreters/translators, standardised training schemes and a ‘pooling’ arrangement to allow stakeholder bodies to access to a common body of accredited interpreters/translators).

27 October 2013 - Implementation deadline Post October 2013 - assess operation and compliance

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ANNEX D

Example of a Transposition Note

Council Directive 2006/88/EC on animal health requirements for aquaculture animals and products thereof, and on the prevention and control of certain diseases in aquatic animals.

The Aquatic Animal Health (Scotland) Regulations 2009 implement this directive. The animals covered are finfish and shellfish. The aim is to reduce disease in farming of these animals, in the wild environment, and in fish for angling. Fish kept for ornamental purposes are also covered because of their potential interactions with the target sectors.

DirectiveArticle

Objective of Article Transposition in Scotland

Chapter I of the Directive sets out subject, scope and definitions.

1 Aims of Directive:

health requirements for movement and trade in the animals to minimise risk of disease spread;

preventative measures and preparedness for disease;

control measures in the event of disease outbreaks.

The Regulations, especially:

Part 3;

Part 2;

Part 4.

2 Excludes certain types of these animals from the scope of the directive or ornamental animals if certain conditions are met.

Regulations 2 and 4.

3 and Annex I

Defines terms used in the directive. Regulation 3.

Chapter II of the directive requires authorisation of certain enterprises that keep or

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process the animals. The aim is implementation of good hygiene practice and disease surveillance to minimise introduction and spread of serious disease; and good record keeping, to aid the authorities in tracing disease in the event of an outbreak.

4 Requires authorisation of: all aquaculture production

businesses; processors who handle animals from

diseased areas.

Provides an option for Member States to derogate, so that certain classes of aquaculture production businesses can be registered instead of authorised. Registration is a simpler process.

Regulation 5.

Regulations 8-11 set out processes for application, amendment, suspension and revocation. Regulation 14 provides a transitional provision to allow for interim authorisations.

Regulation 12.

5 Requires authorised businesses to comply with conditions and cooperate with the competent authority.

Authority may not grant authorisation if there is an unacceptable risk of spreading disease.

Regulations 6, 7, 10, 11 and 39.

Regulation 6 (1) and 7(1).

6 Requires that certain information on authorised aquaculture production businesses and processing establishments is available on a public register.

Regulation 13.

7 Links supervision of aquaculture production businesses and authorised processors with the official food and feed controls established under Regulation (EC) No 882/2004.

Regulation (EC) No 882/2004 is directly applicable in Scotland and is already in force.

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