Paper Issues of transposition and interference Table of Contents

Complexity of the Division of Competences

Determining which government is responsible for transposition is a challenge that arises early on in the transposition process. In Belgian federated entities no competences are shared with the federal level, but the transposition competences can be ‘mixed’. In order to comply with EU directives, the right provisions need to be transposed in time and correctly by the right level of government. Unlike Scotland, the Flemish authorities cannot waive their transposition competence.
On more than one occasion transposition competence has led to procedures before the Belgian Constitutional Court. A striking example is the transposition of Directive 2008/101/EC on the inclusion of aviation activities in the European Emission Trading Scheme, where adopted regional transposition was ultimately nullified by the Constitutional Court, demanding an entirely renewed transposition process (I. Vanden Bulcke, interview, 21.05.15). Such disputes cannot only significantly delay transposition, it can additionally lead to trust issues engendering institutional jealousy and disturbed cooperation. Disputes on competence divisions rapidly turn political.
Competences need not be disputed, however, to hamper transposition. The complicated partitions of competence on policy matters, together with the multitude of policy aspects a single directive can entail, make it cumbersome to accurately identify the competent transposers throughout Belgium.¹²
We expect to see a different dynamic in Scotland. The Scotland Act very clearly delineates the powers reserved to the UK and those competences devolved to the regions, and all matters that are not explicitly reserved to the central government are devolved. In practice this means that disagreements and disputes on competences occur only rarely if at all (N. Ritchie, interview, 08.05.15). Where devolved transposition competences are ‘waived’ in favor of UK-wide legislation, this is normally not done as an answer to uncertainties or disagreements. Section 57(1) of the Scotland Actis only applied sporadically and for matters where the resulting difference for Scotland is minimal. In the studied period this ‘third option’ has been used five times on a total of 41 transposition dossiers.¹³ We do find evidence of the use of section 57(1) of the Scotland Act in order to avoid further infringement procedures for maltransposition. The transposition of Directive 2008/90/EC on the marketing of food plant propagating material was delegated to the UK whose uniform legislation could, if desirable, be
A striking example is the transposition of Directive 2006/88/EC on health requirements for aquaculture animals, where the Flemish competence on the transposition of two articles was 'discovered' long after the expiration of the transposition deadline. retracted and replaced by Scottish legislation at a later date (Lochhead, 2010). It is not a means to undermine devolved competences as it can only be invoked by the devolved authority itself. Nor is it used to resolve competence problems as such issues would be of too much a political importance for Scotland to waive its authority. Moreover, in Scotland there is one central public administration where officials (and their ministers) work with a shared agenda. Horizontal competence division on the devolved Scottish level therefore does not entail the participation of multiple separate administrations, but can occur simply by keeping ministers with related agendas in the loop (N. Ritchie, interview, 08.06.15).


We can therefore reasonably expect that the internal division of competences is more likely to be linked to the occurrence of maltransposition in Flanders than in Scotland


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