Guidance for policy officials: implementing EU obligations

Annex A: Checklist

Below are listed the key considerations that you should have in mind at each stage of the transposition process, as well as important actions.

First steps (see paragraphs 32 - 37)

• Familiarise yourself with the provisions of the Directive and the existing framework in Scotland, before considering how best to achieve the Directive's objectives in Scotland.
• Allow for sufficient time to transpose the Directive before its transposition date.
• Notify the European Relations Division as soon as possible on EUObligations@gov.scot
• Consult with SGLD at an early stage and maintain regular contact throughout.

Deciding an approach (see paragraphs 38 - 47)

• Consider which approach will lead to a better outcome for Scotland.
• Would a separate form of transposition allow the Scottish Government to adopt a better form of regulation which would support sustainable economic growth?
• Or, would a UK Government transposition lead to a better outcome for Scotland?
• What are the views of representative bodies, including COSLA, and other stakeholders with an interest?
• Where there is a doubt about the precise legal route to take, submit the options to the portfolio Minister explaining the advantages and risks attached to each approach.
• Before agreeing to a UK-wide transposition under s.57(1) always seek clearance from your portfolio Minister and the Cabinet Secretary for Culture, Europe and External Affairs.

UK-wide transposition (see paragraphs 48 - 49)

• Immediately advise the European Relations Division of your approach to transposition and keep them to up to date of progress.
• Ensure the relevant portfolio Minister writes to the Convenor of the Scottish Parliament Committee within whose subject-matter the Directive falls as well as the Convenor of the European and External Relations Committee.
• Work closely with your UK counterparts to ensure that their policy and legislative approach is compatible and will still result in a good outcome for Scotland.
• Consult with stakeholders and work to ensure that Scottish-specific interests (both those of Scottish Ministers and stakeholders) continue to be represented throughout the transposition and implementation process.
• Monitor the progress of the transposing measures being taken forward by the lead UK Government Department and advise the European Relations Division.

Scottish transposition (see paragraphs 50 - 54)

• Immediately advise the European Relations Division of your approach to transposition.
• Do not automatically assume that legislation is required - administrative measures may suffice where the existing domestic legal framework already complies with the objectives of the Directive.
• Work closely with your UK counterparts to ensure that their policy and legislative approach is compatible with the Scottish legislation.
• Engage representatives of local authorities, including COSLA, , who may have responsibility for implementation and delivery 'on the ground' in order to harness their practical expertise and to gauge their thoughts on whether unexplained or unnecessary over-implementation may be occurring.
• Consult widely with stakeholders on your approach.
• Notify the European Relations Division when the transposing measures are made and when they are due to come into force.

SSI Tracker (see paragraphs 82 - 83)

• It is essential that the SSI Tracker is kept up to date with your progress, any policy issues encountered and any changes to the Implementation Plan.
• Agree with your solicitor who will update which fields. The Policy Issues page is specifically for policy officials to edit.
• Any issues which may impact on the timetable should be assessed against the risk rating on the Policy Issues screen.
• Any queries concerning the SSI process should be directed to the SSI Programme Manager ( legislation@gov.scot).

Policy Scrutiny (see paragraphs 56 - 86)

Business and Regulatory Impact Assessments ( BRIA)

• If a BRIA is required, you should start the BRIA process as early as possible in the policy cycle and refresh the assessment as required, including during the implementation and evaluation phases.
• Detailed guidance on Business and Regulatory Impact Assessments, including guidance notes, a template and a toolkit, can be found at: http://www.scotland.gov.uk/Topics/Business-Industry/support/better-regulation/guidance. For further information, you should contact the Better Regulation team ( BetterRegulation@gov.scot).

Equality Impact Assessment ( EQIA)

• If an EQIA is required, you should start the process as early as possible in the policy cycle and refresh the assessment as required, including during the implementation and evaluation phases.
• Detailed guidance including a template, checklist and FAQs, can be found here or email the Equality Unit on MainstreamingEquality@gov.scot.

Technical Standards

• If your legislation will include any technical specifications, you will need to inform the European Commission of this while the legislation is still in the draft stages.
• Once the text of a draft technical regulation has been notified to the Commission, the instrument containing it cannot be adopted until the relevant standstill period has expired. The minimum standstill period is 3 months but it might be extended to 12 or 18 months. So if you wish to include a technical regulation, you must factor this period into your timetable.
• Consult with SGLD if you are unsure whether your regulations include Technical Standards.
• The Department for Business, Innovation & Skills holds the portal for notifying a draft of any instrument containing a technical standard to the European Commission and can be contacted at 9834@bis.gov.uk. Further information can be found on the BIS website and in the BIS Guidance for policy officials.

Guidance

• Consider carefully with your stakeholders whether it will be necessary to produce guidance for those affected by the legislation and who should be involved in the producing such guidance.
• It may be helpful, where you are taking a different approach to the UK, to clearly set out the differences from the UK approach for the benefit of businesses which operate UK-wide.

Notifications (see paragraphs 87 - 95)

• Once the transposing legislation has been finalised and no later than one week before it is due to come into force, e-mail the European Relations Division ( EUObligations@gov.scot) to bring this to our attention, attaching a pdf version of the legislation to be notified to the European Commission.
• If the Directive is particularly complex and has multiple provisions, you may also wish to submit a transposition note (please see example transposition note in Annex B) for the European Relations Division to notify to the Commission and which sets out exactly which provisions of the transposing legislation implement which parts of the Directive.
• The European Relations Division will forward on to you the automatic e-mail which confirms the date of notification to the Commission and the notification reference number. It is important that you keep this e-mail for your records. You should cite this reference number and the date of notification in all correspondence with the Commission, particularly for infractions correspondence.

Impact Assessment (see paragraphs 96 - 98)

• Once a Directive has been transposed into domestic law, it is essential that you monitor and review the effectiveness of the transposing legislation.
• Liaise with your partners and stakeholders on whether any aspect of implementation could be changed or improved in some way.