Guidance for policy officials: handling infractions

Part 3: Handling Infractions

First Steps

1. When you receive notice of an infraction relating to your policy portfolio, you must immediately notify the European Relations Division and your lawyer in SGLD.

2. You should bear in mind that the infraction proceedings are taken against the UK as the Member State. Therefore, you must liaise closely with the relevant department(s) in the UK Government to feed in the Scottish Government position.

3. You must deal with all correspondence relating to infraction proceedings promptly and by the deadline prescribed by the Commission.

4. Where the case has a particular Scottish interest it may be useful to attempt engagement with the Commission directly on the issue. This can enhance the Commission's understanding and improve the likelihood of the infraction being closed. You should bear in mind sensitivities around UK relations if you take this approach.

5. It may also be worthwhile engaging with the other devolved administrations and Member States to support any evidence given to the Commission on compliance.

Extension requests

40. Responses to infraction proceedings should always be submitted within the deadline prescribed by the Commission, which is usually two months. However, it may be appropriate to request an extension where more time is required to draft a response.

41. In such instances, you should consult with the lead UK Government Department, the European & Global Issues Secretariat (" EGIS") and the relevant UKRep desk officer, to discuss whether an extension should be requested.

42. Where an extension is required, you should provide a draft letter for the UKRep desk officer to send to the Commission, requesting an extension as soon as possible and before the deadline for response. If the extension is granted the Commission will let UKRep know in writing.

Disclosure of information relating to infractions

43. Communications between the Commission and Member States on infractions are generally confidential and should usually not be disclosed to other parties, particularly where a case is ongoing. However, there isn't any prohibition on revealing the existence of infringement proceedings to third parties, as they are published on the Commission website.

Penalties and fines

44. Under Article 260(2) the European Commission may ask the CJEU to apply financial sanctions to the Member State where, following infringement proceedings for a breach of EU law, the CJEU has found the Member State to be in breach of its obligations.

45. The CJEU has discretion to apply financial sanctions consisting of a daily penalty to induce the remedy of the breach, a figure which is then multiplied by the duration of the breach and/or a lump sum, based on an assessment of the effects of the breach.

46. The CJEU will have regard to the duration of the infringement, its degree of seriousness and the ability of the Member State to pay. It also has regard in particular to the effects of failure to comply on private and public interests and to the urgency of getting the Member State concerned to fulfill its obligations.

47. The Scottish Government would be required to pay a percentage of any fine imposed on the UK (potentially up to 100%) if the infringement related to a devolved matter, depending on the extent of our involvement.

48. However, fines are extremely rare and the European Commission works hard with Member States to avoid financial penalties wherever possible. Scotland and the UK as a whole has never received a fine from the CJEU.

49. For further information on how the Commission calculates fines, visit the Financial Sanctions page of the European Commission website.

Duration of infraction proceedings

50. The duration of the process of each case depends on the type of breach involved.

51. For non-notification infractions, it can take as little as six months for a case to go from the Article 258 Letter of Formal Notice to being referred to the CJEU. It may then take a further 6-12 months for the CJEU to hear the case, depending on how busy the Court is and the severity of the breach.

52. The Commission aims to have dealt with infringement proceedings for non-notification cases within a year by either resolving the case, with the Member State fully transposing and notifying the legislation, or by referring the case to the CJEU. It will then of course take time for the matter to be brought before the CJEU.

53. For cases other than non-notification cases, the process will usually be longer. It usually takes between six months and a year for a case to be referred to the CJEU for the first time, and it can take anywhere from six months to a few years for the matter to be referred to the CJEU for a second time.