Sunday, December 1, 2013

UK - Scotland is not compliant with the EU acquis communitaire for electronic communications and broadcasting

It is frequently stated that Scotland is compliant with the acquis communitaire of the European Union, which is wrong and misleading. Compliance requires the treaties, directives, recommendations, decisions and other EU legal instruments to have been transposed into national law and to have been implemented. The exceptions are the regulations, which have direct effect (e.g., Roaming III Regulation).

The United Kingdom of Great Britain and Northern Ireland is largely compliant with the acquis communitaire, but it does not follow that Scotland is compliant. At any one time most member states are not quite fully compliant, with directives not yet transposed, improperly transposed or not implemented, with the EC pressing governments to correct or to enact the necessary legislation, if necessary bringing infringement proceedings before the European Court of Justice (ECJ) to require them to do so. For example, in 2013 the EC brought four cases against HMG, all on taxation, including one relating to corporation tax in Gibraltar.

Countries which are candidates for accession to membership are required to undergo complex procedures in order to become compliant, divided into a number of “chapters”, supported by the EC and consultants (see COM(2013) 700). Representatives of the institutions also begin to participate in the complex EU systems of network governance.

Ultimately, a political judgement is made, assessing the technical evaluations of compliance, based on:

  • Political criteria;
  • Economic criteria; and
  • The ability to take on obligations of EU membership.
Sometimes a country is admitted as a member state, even if it is not wholly compliant in a small number of areas, in the expectation it will be able to catch up.

Thus when the Council of Ministers is asked to consider the admission of Scotland, all the member states will be thoroughly familiar with the process of ensuring compliance and most will have been admitted in that way. Ensuring compliance is business as usual and the demonstrably false claim of already being complaint does little to advance the case for Scotland. If the EC did not make an assessment on its own initiative it would be likely that a member state might require that it conduct that exercise.

For broadcasting and telecommunications, accession and candidate countries have been required to transpose into their national law the various EU directives and to create the necessary institutions, notably broadcasting and telecommunication regulatory authorities, a national competition authority, plus systems of appeals. The EC engaged consultants to analyse the laws, regulations and institutions in the various countries and to hold regular meetings of the regulatory authorities, covering the period 2005 to 2013. This reported in detail every nine months the progress being made to inform the teams negotiating Chapter 10 on information society and media, including:

  • legislative framework,
  • institutional framework,
  • market access conditions,
  • spectrum assignments,
  • competitive safeguards,
  • market structure and
  • outlook.
For example, on the Chapter 10 negotiations for Montenegro the EC reported progress, but expressed some concern about the legal provisions for independence of the regulator and the delays in the decision of the Constitutional Court (see SWD(2013) 411).

While it would be trivial for Scotland to adopt a single clause bill to convert all necessary EU laws into Scottish statutes that would not achieve compliance. It would be necessary to create the institutions and then to demonstrate that the systems worked effectively, for example, that the broadcasting authority, multi-sector regulator and competition authority were independent and efficient, that appeals could be handled expeditiously. Perhaps the biggest challenge would be to conduct the first market telecommunications analyses, since this requires a considerable volume of data from operators and some skill in its analysis. The data can only be provided once the operators had separated the Scottish parts of their networks from their UK networks.

The institutions could be place in eighteen months. However, testing their effectiveness could well take another year.