Guidance for policy officials: handling infractions

Part 1: The Role of the Scottish Government in Handling Infractions

Monitoring the application of EU law

1. The European Commission monitors the application of EU law to ensure the correct and timely transposition of EU law into the domestic law of the Member States. If the European Commission has evidence that a Member State is not fulfilling its EU obligations, it will begin legal proceedings to rectify the situation, known as infringement - or infraction - proceedings.

2. The powers which allow the European Commission to carry out infraction proceedings are provided for in Articles 258 and 260 of the Treaty on the Functioning of the European Union (" TFEU"). It is also possible for a Member State to bring infraction proceedings against another Member State under Article 259, but this is very rare.

Working with the UK Government

3. Infraction proceedings may be brought against the UK for matters in respect of which the Scottish Government has failed to properly implement or transpose EU law.

4. Paragraphs B4.23 - B4.26 of the EU Concordat of the Memorandum of Understanding (" MoU") on Devolution ^[1] set out the underlying principles governing the roles and responsibilities of the UK and Scottish Government in respect of such infraction proceedings. In particular, the MoU outlines the following:

• Where an infraction case relates solely to the implementation of EU obligations in Scotland, in relation to a matter falling within the responsibility of the Scottish Government, the draft response to the European Commission will be prepared by the Scottish Government and agreed at official, and where necessary, Ministerial level, with relevant UK Government departments.
• Where an infraction case partly concerns implementation of a devolved or non-devolved matter in the UK including Scotland, the lead Whitehall department will prepare the draft reply in consultation at official or Ministerial level, as appropriate, with the Scottish Government.
• Where an infraction case involving implementation by the Scottish Government is referred to the Court of Justice of the European Union ( CJEU), the Scottish Government will contribute to the preparation of the UK's submission to the Court. The Scottish Government would take the lead for cases wholly concerned with implementation in relation to a matter falling within its responsibility, agreed (as appropriate) with the relevant UK Government departments.

5. It is, therefore, essential that policy officials in the Scottish Government contribute to the UK Government's response to infraction cases where the matters falls within devolved competence or concerns the implementation of a non-devolved matter in Scotland.

The European Relations Division

6. The European Relations Division in the Directorate for Culture, Europe and External Affairs supports the implementation of EU obligations across the Scottish Government.

7. We monitor the progress of infractions proceedings and provide advice and support to Scottish Government policy officials on handling infractions, where appropriate.

8. Notice of new infraction cases will be sent by Cabinet Office to the European Relations Division, which will in turn contact the appropriate policy lead and advise on the next steps.

9. It is, therefore, essential that policy officials ensure that any developments regarding a particular infraction case are communicated to the European Relations Division on EUObligations@gov.scot.

10. For more information on the European Relations Division and the wider work that we do, visit www.gov.scot/topics/international/europe and read the Action Plan on European Engagement.