The legislative competence of the National Assembly for Wales is expressly limited by section 108(5) of the Government of Wales Act 2006 (GOWA 2006) to provisions that are compatible with EU law. In other words no provision of an Act of the Assembly may breach EU law.
Similarly section 80(8) of GOWA 2006 provides that the Welsh Ministers may not exercise their functions (including the function of making subordinate legislation) in so far as that would be incompatible with EU law.
This means that the Welsh Ministers’ powers must be interpreted in the light of any relevant EU laws. As an example, the Welsh Ministers have a power under section 1 of the Welsh Development Agency Act 1975 to provide grants to businesses in Wales. There are no constraints on this power in the Act itself but, by virtue of articles 107 and 108 of the Treaty on the Functioning of the European Union (the treaty provisions on State aid), the Welsh Ministers’ ability to exercise this power is limited to paying grants only in certain circumstances and on certain terms.
The Welsh Ministers also have a role in transposing EU Directives. By virtue of section 80 of GOWA 2006 the Welsh Ministers are generally responsible for the transposition (i.e. implementation) of EU Directives made in areas where legislative competence has been devolved to the National Assembly or where powers outside that competence have been transferred to them. EU Directives are implemented using subordinate legislation. The power to make such legislation may be contained either in a specific Act of Parliament or the National Assembly, or given by virtue of section 2(2) of the European Communities Act 1972 (for those subjects in relation to which Welsh Ministers have been ‘designated’ to implement EU law by Order in Council).
Implementation of EU law by Member States is monitored by the European Commission which can take national governments to the European Court of Justice (ECJ) in case of failure or breach of their implementation obligations. Such a finding at the ECJ could result in the Member State (the UK in this case) being fined. Any fine paid by the UK Government as a result of the Welsh Ministers’ failure to implement EU obligations could be reclaimed from the Welsh block funding grant.
In transposing EU Directives into Welsh law, the Welsh Ministers work within the guidance set out in the UK Government’s “Transposition guidance: how to implement European Directives into UK law effectively” and in the “Concordat on Co-ordination of European Union Policy Issues” as set out in Part 2 Section B of the Memorandum of Understanding between the UK and devolved governments.
As a legislature operating within a Member State, the National Assembly has a role in indirectly influencing the position of the UK Government and in scrutinising the Welsh Government’s strategic priorities in relation to the EU. The National Assembly has previously done this by undertaking committee inquiries on key strategic priorities at early stages in the EU policy-making process, before the European Commission publishes its legislative proposals.
Assembly Members may also ask questions to the relevant Welsh Minister at any time during the EU legislative process about the impact of a EU legislative proposal on Wales and the preparations taking place within Welsh governmental departments ahead of its implementation.
The National Assembly also has a general role in promoting Welsh interests amongst the EU institutions. This includes talking directly to the European Commission, the European Parliament (in particular the four Welsh MEPs), the representatives from Wales on the EU’s two consultative bodies - the Committee of the Regions (comprised of local and regional politicians) and the Economic and Social Committee (experts representing sectoral interests) - and through participating in formal and informal EU networks.