Guidance for policy officials: implementing EU obligations

Part 4: Notification of Transposing Measures and
Post-transposition Review

Notifying implementing measures to the European Commission

87. Once a measure transposing a Directive (whether a Scottish Statutory Instrument, an Act of the Scottish Parliament or an administrative measure) has been passed, it must be notified to the European Commission ahead of or by the transposition deadline. Failure to do so could lead to enforcement action by the European Commission for the failure to notify.

88. The European Relations Division is responsible for communicating this to the Commission using an electronic notification system - it is therefore absolutely essential that you inform the European Relations Division of transposition as soon as it is adopted ( i.e. passed or made) and before it comes into force.

89. By the transposition deadline, you should email the European Relations Division and attach a PDF version of the transposing instrument/measure, using the EU Obligations mailbox ( EUObligations@gov.scot).

90. If the Directive is particularly complex, and has multiple provisions, you may also wish to submit a transposition note for the Commission's benefit and which sets out exactly which provisions of the transposing instrument/measure transpose the corresponding parts of the Directive. The European Relations Division will notify this to the Commission along with the transposing instrument. An example of a basic transposition note is available in Annex B.

91. Once the transposing legislation has been notified to the European Commission, an automatic email will be generated, confirming the date of receipt and providing a reference number for the notification. The European Relations Division will forward this confirmation to you which should be retained with the records for transposing the Directive. It is important that you keep this for your records, as it should be cited in all correspondence with the Commission, including for infractions correspondence.

Late transposition

92. Timely transposition is essential. When a Directive is transposed late, the European Commission may launch infringement proceedings and may request that the Court of Justice of the European Union imposes fines on the Member State in question.

93. If you become aware that a Directive in a devolved area will not be transposed in accordance with the transposition deadline, you should inform the European Relations Division and also ensure that the responsible Minister writes to the Convenor of the relevant subject-matter Committee of the Scottish Parliament advising of this, explaining the reasons for late transposition, the new timescale for transposition and identifying any possible implications.

94. The correspondence with the Parliament should also be copied to the European Relations Division's mailbox ( EUObligations@gov.scot), the Clerk to the Scottish Parliament's European and External Relations Committee ( europe@scottish.parliament.uk), and the Clerk to the Scottish Parliament's Delegated Powers and Law Reform Committee ( DPLR.Committee@scottish.parliament.uk).

95. Guidance on how to deal with EU Infractions is available at: http://www.gov.scot/Topics/International/Europe/Policies/Strengthening-Relationships/Obligations/Handling-Infractions.

Impact Assessment - review of transposing legislation

96. Once a Directive has been transposed into domestic law, it is essential that lead policy team's monitor and review the effectiveness of the transposing legislation.

97. An impact review provides a useful check on how legislation is working in practice and whether actual costs and benefits are similar to those originally anticipated. Policy decisions may need to be reconsidered in light of changing political, economic, social and technological developments. Impact reviews are also helpful in terms of building up an evidence base to influence future policy making in the EU. Most new Directives have review periods built in by the European Commission. If possible, schedule the Scottish Government review to coincide with the Commission's own review.

98. Stakeholders often play a key role in reviewing the effectiveness of implementation, so it is essential to liaise with them on whether any aspect of implementation could be improved.