Paper Issues of transposition and interference Table of Contents

Transposing Directives at the Subnational Level

1. Flanders

Once the directive is agreed upon, the federal service on European Affairs and Coordination located within the federal External Affairs service (DGE), indicates the authorities that are responsible for transposition as well as the authority that will take lead on the transposition process. The actual transposition takes place according to the regular internal legislative procedures, no special procedure is set up for the transposition of EU obligations.
Regional and federal law have equal states and all competences in Belgium are exclusive, meaning that only one level can be competent for a certain matter. It should be noted, however, that often policy-domains are divided into multiple partial aspects competence over which is distributed between federal and subnational authorities, leading to ‘shared’ competences (Belgische Kamer van Volksvertegenwoordigers, 2014). Under the principle of ‘in foro interno, in foro externo’ the internal competence division extends to its external implications among which the compliance with EU- obligations. One directive can thus easily demand transposition among various authorities, both federal and sub-national.
The regional authorities need to decide how to transpose the directive. In some instances the instruments to be used for transposition are set out in law, in other cases the transposing departments can use the instrument of their choice. Most common are decrees Flemish parliamentary acts) or arretés (Statutory Instruments). Other possibilities are cooperation agreements, ministerial orders, circulars, collective labor agreements or sectorial covenants. These types of legislation, however, are not recognized by the European Commission as implementing measures because of their vagueness and their not generalizable legal enforceability. They should be accompanied by a decree or arreté. Consequently, in practice directives are transposed via these latter two instruments (Dierickx et.al. 2003). The draft proposal (of decree or arreté) is prepared by the administration in the responsible department(s) in cooperation with the cabinets. Consultation and coordination takes place with the other competent ministries and policy-levels where necessary. Horizontal and vertical exchange of information and coordination of the transposition are a systematic component in the preparatory phase of transposition legislation. The legislative procedure in itself is rather lengthy. Where no obstacles are to be overcome and no delay of any kind occurs, an arreté will take five months to be finalized starting from the point where the draft proposal is put forward by the administration. For a decree the procedure takes roughly 7 months (Vlaamse Overheid, 2012).

2. Scotland

The Scottish Government is responsible for meeting the implementing obligations under EU law in the areas of devolved legislative competence of the Scottish Parliament (Section 53, Scotland Act 1998). Where appropriate this should occur in bilateral consultation with the lead Whitehall Department and other Departments and devolved administrations (MoU, 2013). There are three distinct ways in which such transposition can take place:
1: Scotland can opt to follow a policy approach separate from the rest of the UK and make own transposition legislation following its own domestic procedure.
2: Scotland can take a similar or identical policy approach to the rest of the UK through the legislation of own transposing measures following its own domestic procedure. This option is taken most regularly.
3: A third option consists of the possibility for Scotland to follow the exact policy approach the UK adopts seeking to have the directive transposed, partially or fully, through UK legislation. This option is made possible under Section 57(1) of the Scotland Act.
(Scottish Government, 2012).
For the first two options Scotland will need to amend or create its own legislation through the normal legislative procedure. Such approaches make it possible to take full account of specific Scottish circumstances. Nevertheless, it demands regular discussion with the UK and other devolved counterparts, especially when a common approach is necessary in order to transpose the directive consistently or to reach target norms. The presumption is that directives falling within a devolved area of responsibility will be implemented by the Scottish Government through its own institutions (Ibid.). Scottish government officials weigh the policy approaches for transposition and prepare the dossier after which they send drafting instructions to the their legal directorate for the actual drafting of the transposition legislation (Ibid.). Normally EU obligations are transposed in Scotland through means of secondary legislation in the form of Scottish Statutory Instruments (SSI). Occasionally they need primary legislation (in the form of Scottish Parliamentary Acts) to be enacted (Ibid.). While the former are usually adopted no later than three weeks after being laid before parliament, the latter procedure can take up to two years.
Where Scotland decides to take identical or similar measures to the UK for transposition through its own institutions (option 2), draft proposals put forward in UK counterparts may be used as a template for the Scottish act, though when waiting for such acts would delay the Scottish transposition process the Scottish officials should continue along their own path. A common policy approach across the UK does, however, not ensure an ‘easy’ transposition. The measures might be similar or identical but the Scottish measures can –due to the legal system- never be entirely the same as they are in England, Wales and Northern Ireland (Scottish Government, 2012).
As a derogation to this usual transposition procedure, use can be made of Section 57(1) of the Scotland Act where needed. An ‘opt-out’ of making specific Scottish legislation under section 57(1) can
-where the UK transposition measures seem to be the best option for Scotland as well- save the Scottish institutions a lot of work and to a certain extent therefore speed up the overall UK transposition process. It can also be used to avoid or close down infringement procedures. Allowing the UK to transpose where the Scottish Parliament could reasonably be expected to do so, however, entails political sensitivities (Scottish Government, 2012). Naturally, the Scottish Government aims to make full use of its devolved responsibilities.

3. Infringement Procedures and Sanctions for Maltransposition

Infringement procedures are always directed against a member state as a whole, regardless of the subnational or national responsibility for the lacking or problematic transposition. Since the Lisbon Treaty, the Court of Justice can impose a sanction for non-notification or delayed transposition in its first arrest (Art. 260 TFEU). The Commission considers notified implementing measures that do not cover the entire territory of the member state or that only cover part of the directive to fall under this category (European Commission, 2011, Art. 19).
Both in Belgium and in the United Kingdom agreements have been made between the national and subnational level ensuring the partition of financial sanctions decided upon by the Court of Justice of the EU. All responsible entities will bear a portion of the burden relative to their responsibility for the infringement.⁵ Nevertheless it should be noted that neither country has so far specified a calculation method for the partition of the fine where more than one entity can be held responsible for part of the problem.
Belgium recently received its first financial sanction for maltransposition. It concerned the transposition of the Urban Waste Water Directive⁶, an exclusive regional competence. Although (all) the regions were co-responsible for the infringement and ensuing sanction, it was the federal Belgian government who paid the fine.⁷ It can, however, retrieve the money from the responsible regions (Art.16 §3, Bijzondere wet over de hervorming der instellingen, 1980). This has not happened yet as there is no clarity on how to partition responsibility and burden. So far, the UK – and consequently Scotland – has never been convicted by the Court of Justice to payment financial sanction for maltransposition. Already the administrative burden infringement proceedings entail motivates the authorities to avoid maltransposition (N. Ritchie, interview, 08.06.15). Nevertheless, it is easy to imagine - for member states as well as their subnational entities - that as long as no (threat of) ‘real’ consequence is given to a transposition infringement, it is not necessarily regarded as poor result or high priority case.

1. 
   Overall Transposition Performance and Evolutions
   

The European Commission biannually composes an internal market scoreboard which tracks the compliance of EU law in its member states. Internal market scoreboards (IMSB) are drafted each July and December covering the six-monthly periods between November 1^st of the previous calendar-year and April 30^th, and between May 1^st and October 31^st of the concerned year respectively. These reports show a significant difference between the transposition deficits⁸ and compliance deficits⁹ for the United Kingdom and Belgium. The transposition and compliance deficits of both countries over the IMSB of May 2010 thru November 2014 are shown in the graphs below. The UK scores above average while Belgium is lagging behind though recently catching up. This is interesting as Belgium is a founding father of the European project and is characterized by a pro-European attitude, whereas the UK joined the European project later on and is known for its Eurosceptic attitude. Explaining such variation demands insights into the domestic attitude towards and the organization of the internal transposition process. The aim of this study is then, to see whether a similar dynamic exists on the sub-national level. Can we expect Scotland to deliver better transposition performances than Flanders on account of the UK scoring better than Belgium? And if these subnational transposition performances differ, how can we explain it?
As member states are seen as unitary actors by the European Commission, all infringements caused by untimely or non-conform transposition where subnational authorities were (co-)responsible for transposition are caught within the national deficit. How do the sub-national deficits fit within those of their member states: do they develop along the same lines and do they represent a portion of the national deficits comparable to their portion of transposition obligations?¹⁰