Guidance for policy officials: implementing EU obligations

Part 2: The Nature of EU Obligations

13. EU law can be divided into two classes: 'primary law' and 'secondary law'.

Primary law

14. EU primary law comprises the EU Treaties that form the legal basis that enable the EU institutions to adopt further measures, including secondary law.

15. By virtue of section 2(1) of the European Communities Act 1972, provision made by the EU Treaties has effect in the UK without any further enactment.

16. The Scottish Government does not therefore need to make any further legislative provision to implement the provisions of the EU Treaties in Scotland.

Secondary law

17. EU secondary law comprises measures adopted by the EU institutions under the powers conferred on them by the EU Treaties. There are three forms of EU secondary legislation - Regulations, Directives and Decisions.

18. The distinction between each form of EU secondary legislation is important as it affects whether further legislation is needed to implement them in Scotland.

Regulations

19. Regulations are directly applicable in the Member States of the EU and are immediately enforceable as part of Scots law by virtue of section 2(1) of the European Communities Act 1972 without the need for any further implementing measures. Regulations are, therefore, the same across all of the Member States.

20. Regulations supersede any existing law in Scotland (and in the rest of the UK) which is inconsistent with them. Steps must therefore be taken to ensure that any domestic laws are amended so as to comply with the provisions of Regulations.

21. A Regulation might also require a Member State to appoint a person or body to perform or enforce certain functions set out in the Regulation or to make provision for a breach of its provisions to be subject to a particular sanction or penalty under domestic law. In such cases, where the Regulation relates to a devolved area, the lead policy official must consider, in conjunction with the Scottish Government's Legal Directorate (" SGLD") and the lead Whitehall Department, whether additional steps are needed to ensure that Scots law is consistent with the Regulation and that the Regulation can be properly applied and enforced.

22. If you require further assistance with a particular Regulation then please contact your solicitor in SGLD or the European Relations Division.

Directives

23. Directives require Member States to achieve particular outcomes. A Directive may also set out in detail all the things that must be done, or put in place, by the Member State to ensure that those outcomes are achieved.

24. Directives often set minimum standards to be applied in all Member States but also allow individual Member States to impose more stringent standards (provided these do not conflict with the general principles of the EU and its Treaties).

25. Each Directive will, following its publication in the Official Journal of the EU, require Member States to bring into force the domestic laws, regulations and administrative provisions needed to ensure that these things are achieved within a specified period (typically two years from the date of the publication of the Directive).

26. The process of bringing these domestic provisions into force is called "transposition". If any of the provisions needed to 'transpose' the requirements of an EU Directive fall within the legislative competence of the Scottish Parliament, the Scottish Government must consider how best to transpose this EU obligation.

27. Directives focus more on the intended result of the legislation, leaving the Member States a degree of flexibility regarding how those ends are achieved. So whilst the outcomes to be achieved will be the same in all Member States, each Member State may seek to achieve these outcomes in slightly different ways.

28. Directives may be implemented in the same way throughout the whole of a Member State. Alternatively, Directives are often implemented in different ways in different parts of a Member State. For example, in devolved areas, Scotland may take a different approach to other parts of the UK if this is considered appropriate.

Decisions

29. Decisions deal with particular issues and are binding only on those Member States, organisations or individuals to which they are addressed. They are issued either by the European Commission or the Council of Ministers of the EU.

30. Since Decisions are bespoke, any measures needed to give effect to them will depend on the particular terms of the Decision in question.

31. If you require further assistance with a particular Decision then please contact your solicitor in SGLD or the European Relations Division.