Paper Issues of transposition and interference Table of Contents

Administrative Capacity: Expertise and Workload

Flanders¹⁴ and Scotland¹⁵ have each drawn up internal guidelines for the transposition of EU directives. Such guidelines serve to ensure the regional officials have sufficient knowledge about the EU legislative procedure, internal transposition rules and practices, and coordination and transparency requirements. The overall expertise concerning the procedures - regarding both the shaping (negotiations) and the taking (transposition) phases of EU legislation - should therefore be good in all three subnational entities. Expertise regarding the matter at hand can be more complicated. The officials responsible for transposition should be aware of not only the wording, but also the background and meaning of the directive’s provisions in order to ensure its timely and correct transposition within the internal order. A continuous stream of information between the actors involved in the negotiations and those involved in the transposition is therefore critical. Flanders seems to have an advantage here as regional representatives always attend the Council working group meetings where EU law concerning regional competences is discussed, though in most matters the rotation system alternates this advantage between regions.¹⁶ As discussed above, Scottish representatives do not always attend the negotiations. They are kept informed by the UK-delegation. The extent to which the transposers are knowledgeable of the directives thus largely depends on the communication with the central level and their proactive follow-up of the negotiations. Additionally transposers should be able to clearly identify the existing internal rules and practices that are affected by the directive. Sectorial expertise is likely to be consulted for more technical and specialized matters. A good working relation with sectorial experts could be an asset. Flanders and Scotland all three have organized practices to involve sectorial experts and stakeholders early in the drafting process, through sectorial advise committees and regulation-specific consultations.
With regard to administrative and drafting capacity the regions noticeably differ. The Scottish government holds one central administration and legal directorate charged with the drafting of implementation measures (N. Ritchie, interview, 08.05.15). In the update reports the Scottish Government send biannually to the European and External Relations Committee of the Scottish Parliament (EERC), officials frequently explicitly indicate the lack of resources as determining factor for delays in the transposition procedure.¹⁷ Preliminary interviews with Flemish officials do not point to a systematic challenge regarding administrative capacity, though high workloads are sometimes mentioned . Earlier studies have indicated administrative capacity to be a challenge in Flanders (Bursens & Helsen, 2000; Dierickx et. al., 2003; De Coninck, 2015).
Contrary to the English tradition, Scottish transposition rarely occurs via copy-out of the directive. As more generally with other legislation frames coming ‘from above’ – Scotland rather fits the (transposing) regulations as close as possible to its specific situation and needs, looking for ‘Scottish solutions for Scottish problems’ (N. Ritchie, interview, 08.06.15). Nevertheless, in the past few years, Scotland has revisited a small number of transposition measures in response to the European
Vlaamse Regering (2005). Draaiboek voor de implementatie van Europese regelgeving in Vlaanderen, Ministerie van de Vlaamse Gemeenschap, Administratie Buitenlands Beleid, Afdeling Buitenlands Beleid binnen Europa; The guidance document is currently under revision.
¹⁵ Europe Team (2012). Influencing and Implementing EU Obligations. A Guide for Scottish Government Officials. 3^rd Ed, 2012, Europe Team, International and Constitution Directorate, Scottish Government.
¹⁶ Except for fisheries where Flanders is the only competent authority, and agriculture where both Flemish and Walloon representatives are always present next to the federal ones.
Commission’s concern on the use of copy-out.¹⁸ Overall, elaboration seems to be the preferred transposition strategy in Scotland. Where directives are very detailed and technical (or similarly when transposing lists included as annexes to directives) and little to no marge de manouevre is left to the transposing entity, a (nearly) ‘copy-paste’ transposition is most adequate. This is a common practice in transposing particularly technical directives, also in Flanders.


Taking these elements into account, we expect administrative capacity to play a larger role in explaining transposition difficulties in Scotland than in Flanders.