INFLUENCING AND IMPLEMENTING EU OBLIGATIONS
A guide for Scottish Government officials
Europe Team
International and Constitution Directorate
Scottish Government
THIRD EDITION PUBLISHED 2012
CONTENTS
Foreword4
Introduction5
Section One - Who to Talk To
SGEUO & Europe Team7
SGLD8
Stakeholders8
The Commission9
The Council10
The Parliament11
Working with the UK12
The Scottish Parliament13
Section Two - Early Opportunities
Horizon Scanning15
Explanatory Memoranda16
Consultations17
Project Management20
Lobbying21
Section Three - Negotiations
Justice and Home Affairs Opt In26
Negotiations27
Section Four - Transposition
Turning EU Law into Scottish Law31
Transposition Planning32
Different Approaches34
Weighing Up Options35
Implementation Plans37
SSI Tracker37
Policy Scrutiny37
Drafting Legislation40
Notifications41
Section Five - Impact Review
Impact Assessment43
Infractions44
Annex A - Example of subsidiarity briefing for the Scottish Parliament48
Annex B - Practical tips for attending Council Working Groups50
Annex C - Example of an Implementation Plan52
Annex D - Example of a Transposition Note55
FOREWORD
The Scottish Parliament and Government now have over 12years 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 engageand 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 HYSLOP
Cabinet Secretary for Culture and External Affairs.
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.
SECTION ONE: Who to talk to
SGEUO & EUROPE TEAM
Europe Team and the Scottish Government European Union Office (SGEUO) work hand in hand to promote Scotland's interests in Europe.
EuropeTeam
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 MemberState and sub-MemberState 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.
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 Europeand 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.
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 MemberState 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.
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 MemberState, authorised to commit his/her government and are almost all chaired by the MemberState 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 MemberState. 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 MemberState 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
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 MemberState 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.
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.
WORKING WITH THE UK
The UK is the MemberState, and will be until such time that the Scottish people vote for independence and Scotland becomes a MemberState 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 youneed help engaging with your Whitehall colleagues the UK Relations team are there to offer assistance. (x43325)