Paper Issues of transposition and interference Table of Contents

How do Flanders and Scotland Transpose Directives?

The different subnational authorities in Belgium and the United Kingdom – here Flanders and Scotland
– are responsible for the transposition of the (parts of) EU directives that fall within their domestic competences. The transposition measures that are taken in order to do so follow the ordinary internal legislative procedures. Charged with the implementation of EU directives, the regional governments are also – to a certain extent – involved in shaping the national negotiation positions of their countries at the European level, and bear a share of the sanctions for incomplete or delayed transposition where they are co-responsible.

1. Shaping the National Negotiation Position

   1. Flanders

Belgian regional governments are competent for the international aspects of their internal competences according to the ‘in foro interno, in foro externo’-principle.² In order to guarantee that federated interests are taken into account in the negotiations, all co-competent authorities prepare their position to an EU legislative proposal and defend it in an interfederal coordination meeting. The Belgian negotiation position that will be defended at the European level is a result of this discussion and is therefore a compromise. The Belgian national negotiation position is taken by unanimity, making each authority a true veto player. There is however a gentlemen’s agreement that no (sub)national authority blocks the proposed negotiation position unless it is absolutely necessary. Where no compromise is reached, Belgium will have to abstain from voting in the Council negotiations.³
For the representation in the Council working groups, a complex system is set up based on the extent of federated competences and a rotation mechanism between the Walloon and the Flemish regions. Whether the federal of regional level leads the Belgian representation depends on who has the principal competence for the matter at hand. The Belgian delegation will often also count an assessor, representing the other policy-level.⁴ Regional representation alternates biannually between Walloon and Flemish delegates. Such rotation is not necessary in matters of fisheries, as it is an exclusive Flemish competence, and in matters of agriculture as in these matters the federal representative will always be assisted by a Flemish and Walloon delegation..

2. Scotland

When it comes to foreign policy Scotland only has a limited competence but in practice the internal devolution of competences has external implications. Especially so in the context of European integration (Duran, M., Criekemans, D., 2009, p.195). The UK representation team at the Council meetings is always led by a UK Minister. The interests of the devolved administrations are however taken into account. Where the European legislative proposals under negotiation do not directly
There are six categories, based on the policy domains treated by the different formations in the Council working groups. Regarding (1) exclusive federal competences Belgium is represented by a federal delegation. When competences are mixed Belgium will be represented (2) by a federal minister and a regional assessor when federal competences dominate, and (3) by a regional minister and a federal assessor when regional competences are predominant. (4) Exclusive regional competences demand regional representation in the EU-negotiations. Moreover, (5) the Flemish competent minister represents Belgium in matters of fisheries, and (6) a delegation of Flemish, Walloon and federal ministers shall represent Belgium in agricultural issues (VVPV,2010; Samenwerkingsakkoord van 8 maart 1994 tussen de Federale Staat, de Gemeenschappen en de Gewesten, met betrekking tot de vertegenwoordiging van het Koninkrijk België in de Ministerraad van de Europese Unie (B.S. 17 november 1994). concern devolved matters, the Secretaries of State for the devolved administrations –within the UK Government – ensure their interests are properly represented and considered. In case a devolved matter is under consideration in an EU legislative proposal, early consultation becomes essential (Scotland Office, 2009; MoU, 2013,). The representation of the devolved administrations in EU negotiations remains in law with the UK government. Nevertheless, the 2013 Concordat on coordination of EU policy foresees in the co-ordination of European policy issues and attendance of devolved Ministers to Council meetings. This concordat is, however, only binding by honor. The composition of the UK team in Council negotiations is in the hands of the lead UK minister who will decide on a case-by case basis the appropriateness of devolved assessors by taking into account the likeliness of substantive discussion in the Council groups on matters of significant importance to the devolved ministers. In rule, demands from devolved ministers to attend are accepted (Ibid.). Nevertheless, in the end Scotland has no real veto power in the shaping of the UK position.

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