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Implementation of the “regulatory guillotine”
and development of the administrative law
Marina Anatolievna Shtatina11,Ivan Valerievich Shmelev1,andAlessandro Cenerelli2
1RUDN University, Institute of Law, Department of Administrative and Financial Law, Moscow,
Russia
2University of Campania Luigi Vanvitelli, Italy
Abstract. The purpose of this study is to analyse the functioning of the
“regulatory guillotine” in the context of the development of administrative
law. The authors used qualitative methods to identify the features of the
“regulatory guillotine” and determine its place among the institutions of
administrative law. Quantitative methods were applied to define the scope
and consequences of administrative reforms. The use of the legal
comparative method made it possible to describe the peculiarities of the
“regulatory guillotine” in Russia. The research results were conclusions
from the analysis of legislation and the practice of implementing
administrative and legal reforms that show the technological nature of the
“regulatory guillotine”. In terms of organisation and implementation, the
authors attributed the “regulatory guillotine” to administrative reforms, but
in terms of content, the “regulatory guillotine” goes beyond even legal
reform, as it involves assessing regulatory instruments from the point of
view of not only legality but also economic efficiency and social
feasibility. The novelty of this research should be considered the
conclusion that the “regulatory guillotine” technologies can contribute to
the improvement of administrative and legal regulation in Russia, provided
they are thoroughly and purposefully applied in conjunction with the
updated institutions of administrative procedures, administrative
responsibility, licensing, expert and evaluation activities.
Keywords: public administration, state control, administrative reform,
regulation, administrative simplification
1 Introduction
In the second half of the twentieth century, the number of entities with regulatory powers in
business is expanding [1, 2]. Therefore, the proliferation of rules and requirements, the
complication and departmental disunity of legal regulation, duplication and collision of
legal provisions [3] created excessive administrative barriers [4], restrained the social and
economic development. It is no coincidence that since the 1970s, in many countries of the
world reforms have been carried out to optimise the number of regulations and improve
their content. In 1980, such a reform in Sweden was named the regulatory guillotine, and
by 2004 it acquired the features of a special method of administrative reform.
1Corresponding author: shtatina_ma@pfur.ru
SHS Web of Conferences 118,
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03014 (2021)
https://doi.org/10.1051/shsconf/202111803014
© The Authors, published by EDP Sciences. This is an open access article distributed under the terms of the Creative
Commons Attribution License 4.0 (http://creativecommons.org/licenses/by/4.0/).
Since 1980s, in many countries of the world, in response to the expansion of
administrative law regulation of the economic activities, the “regulatory guillotine”
technologies have been used. They allowed the state to revise regulatory provisions, reduce
their number and simplify the content of regulation.
Since 1985, more than 100 states have applied the “regulatory guillotine” method in
practice, from the United States to Mexico, Croatia, Iraq, Kenya, Kyrgyzstan and Thailand.
For example, in Italy, initially, there was envisaged “administrative simplification” to
reduce bureaucratic formalities and increase the efficiency of public administration. The
Administrative Procedure Act of 1990 established some general rules on administrative
action; Statute of 1997 [5] determined that, on an annual basis, the Government would
identify the administrative procedures to be simplified and the Parliament would adopt a
statute on administrative simplification. At the next stage, the concept of “normative
simplification” was approved to coordinate the various rules adopted over the years and
eliminate those that had become obsolete. Since 2000, numerous sectoral codes have been
issued, which have grouped together the legislative and regulatory standards. At the later
stage, a sort of “legislative guillotine” has been held. The statute of 2005 [6] described the
automatic repeal of all statutes prior to 1970, excluding those considered indispensable and
expressly “saved” by specific Government decrees.
In 2019-2020, this technology was mastered in the Russian Federation.
2 Methods
The authors used qualitative methods to identify the “regulatory guillotine” as a way of
administrative reform and to determine its place in the system of administrative law.
Quantitative methods were applied to define the scope of the administrative guillotine and
to reveal socio-economic consequences of the regulatory simplification. The use of the
legal comparative method made it possible to describe the peculiarities of the “regulatory
guillotine” in Russia.
3 Results and discussion
“Regulatory guillotine” as a method of administrative reform. The “regulatory
guillotine” was established in the context of liberal new public management reforms and its
ultimate goal was to limit government intervention in business affairs. Like any
administrative reform, the “regulatory guillotine” is organised by the central government
and is carried out in a self-reforming format [7]. Usually, a specialised body is created to
implement it (Office of Information & Regulatory Affairs of the Executive Office of the
President of the United States, Agency for Administrative Procedural Control in Vietnam,
Egyptian Commission on Administrative Reform and Development). Business
representatives often act as the deregulation reform initiators.
The “regulatory guillotine” model as a method of administrative reform was developed
by Jacobs, Cordova & Associates [8], and then confirmed by international organisations,
primarily the Organisation for Economic Co-operation and Development [9]. Its elements
are 1) clearly defined goals and objectives; 2) principles [10]; 3) special legal regulation
[11-14]; 4) organisers (the administrative regulatory bodies) and the reforming participants
(representatives of business and the public); 5) a phased and clearly established algorithm
for the preparation and implementation of changes.
The “regulatory guillotine” is characterised by completeness of the inventory; the
presumption of redundancy of regulatory provisions and the imposition of the burden of
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proving their necessity on the state body; short timeframes (from 9 to 30 months); the use
of modern scientific methods [15].
The successful implementation of the “regulatory guillotine” can have a positive effect
on the economic development of the country by stimulating business and contributing to
economic growth [3]. At the same time, it can increase economic inequality and lead to
stagnation of real incomes of the population [16, 17].
The “regulatory guillotine” mechanism aimed at reducing administrative rules is itself
an object of administrative and legal regulation. The breadth and focus of changes are
conditioned by the status of administrative legislation, and their successful implementation
depends on the development of administrative law institutions.
Features of the “regulatory guillotine” in Russia. In Russia, the “regulatory
guillotine” has become a logical follow-up of the reform of the control / supervisory
activities of public authorities which was enshrined in the federal laws “On Mandatory
Requirements in the Russian Federation” [18] and “On State Control (Supervision) and
Municipal Control in the Russian Federation” [19].
The goals were set, on the one hand, to revise the subordinate legal regulation, and on
the other hand, to completely replace the requirements mandatory for business and checked
during the state control (supervision).
The revision of the mandatory requirements was attended by the Subcommission for
Improving the Control, Supervisory and Licensing Functions of Federal Executive Bodies
under the Government Commission on Administrative Reform (hereinafter referred to as
the Subcommission); 40 federal executive bodies (of which 17 are ministries); 43 working
groups of experts and business representatives.
The Russian Federation Government has determined the principles of regulation in the
respective area: the least regulatory impact; one control body; legal and regulatory
soundness; risk orientation; transparency and consensus with controlled entities; feasibility;
dealing with only external risks; priority of the legislative level of regulation;
proportionality [20].
An algorithm for revising regulatory instruments was developed and applied: federal
bodies elaborate proposals for taking inventory – working groups evaluate these proposals
– the Subcommission removes the differences that have arisen.
By the beginning of 2021, a new structure of legal regulation in each area of public
administration, subject to state control and supervision, was actually established.
Table 1 Results of the “regulatory guillotine” by January 1, 2021.
Mandatory requirements revised
49,000
Subordinate regulations abolished
In total over 12000
Russian Federation Government acts abolished
577 decrees,
15 orders
Departmental acts abolished
2411
Mandatory requirements in every area abolished
30%
Russian Federation Government acts adopted
106 decrees,
2 orders
Departmental acts adopted
339
As a comparison, it should be pointed out that successful administrative deregulation
reforms in South Korea led to the abolition of 48.8% and simplification of 21.7% of 11,125
regulatory acts [16], in Vietnam – 8.8 and 77% of regulatory acts, respectively [21], that is
reforms in those countries were carried out on a smaller scale than in Russia.
The transition to risk-based control and supervision [22], as well as the use of the
“regulatory guillotine” made it possible to reduce the types of control / supervisory
activities. So, in the area of education, instead of three types of control and supervision, one
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supervision over the observance of legislation by educational organisations has been
created. The “regulatory guillotine” mechanism is extended to the requirements that are
mandatory during not only control and supervision but also licensing, appraisal and expert
activities, bringing to administrative sanctions [23].
Possible consequences of the “regulatory guillotine” for the Russian administrative
law development. The “regulatory guillotine” technologies have been mastered due to the
clearly expressed political will and organisational activities of the Russian Federation
Government. This was facilitated by the willingness of business to cooperate with the state
in optimising the legal regulation. In turn, the reform exposed the impermissible lacunas
and mosaic nature of administrative legislation, the unresolved theoretical problems in
Russian administrative law.
In Russia, there is no federal law on laws and regulations; therefore, a comprehensive
systematisation of regulatory rules is not yet possible. It is difficult to determine the place
of mandatory requirements in the legal regulation system. It is still unclear how mandatory
requirements relate to regulations, prohibitions and guidelines.
During the “regulatory guillotine”, there were revised the provisions adopted by the
federal executive authorities. However, the mandatory requirements for Russian business
are also contained in other instruments. In order for the measures lead to the expected
results, it is necessary to revise the content of the current federal laws, regional and local
regulatory documents and take into account the regulations of the Eurasian Economic
Union.
Rules controlling business cannot have an effective regulatory impact, if they are not
harmonised, on the one hand, with permitting rules, and, on the other, with clear rules on
administrative and criminal liability for their violation. The relevant draft laws are being
prepared, but the prospects for their passage in the State Duma are not clear. The work on
the new Code of Administrative Offences of the Russian Federation is being delayed. The
development of the bill on the fundamentals of authorization activity has been suspended
[24]. Since 2013, the State Duma has been considering a draft law on forensic
expertise [25].
Certain objects of legal regulation and types of control, including financial, customs and
currency control, which have a significant impact on business, have been removed from the
“regulatory guillotine”. This can lead to an imbalance in public administration, because in
the excluded sectors, redundancy and fragmentation of legal regulation are still evident.
The “regulatory guillotine” has become an important part of administrative deregulation
but the part should not and cannot replace the whole. There is a need to establish general
rules for the delegation of public authority, to determine the possibilities and boundaries of
outsourcing in public administration, clarify the status of self-regulatory organisations and
revise the status of state corporations.
During the implementation of the “regulatory guillotine”, the interaction of government
bodies and business, that is significant for our society, has been established. However,
unlike the overwhelming majority of countries in the world, Russia has not yet adopted a
law on administrative procedures, which could ensure the triangular participation of the
state, business and citizens in the important for society decision making process.
The short time frame and scale of the changes did not allow the stakeholders to
thoroughly study the content of the regulatory instruments that passed the inventory, track
and guarantee their consistency. When the updated rules and the Registry of Mandatory
Requirements begin to apply, gaps and inconsistencies in the legal regulation may emerge.
There are risks of making mistakes in the course of reforms at the beginning of the
twentieth century: quantitative indicators may prevail over qualitative ones; solving
complex problems may depend on the personal qualities of managers, and not legal
regulation or even professional expert assessments. In this regard, it is very important to
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professionally study the goals, objectives, key areas and content of the state regulatory
policy.
4 Conclusion
In 2019-2020, in Russia there were reviewed the legal instruments of federal executive
bodies operating in the field of control/supervisory activities. The reform was carried out in
compliance with all the basic rules, principles and technologies of the “regulatory
guillotine”. It led to the abolition of outdated rules and regulations and also completely
replaced mandatory requirements in the field of control/supervisory activities, as well as
changed the number and types of control and supervision. The conditions for the
transformation of related administrative and legal institutions have been created. At the
same time, the shortcomings of administrative legislation have clearly manifested itself, and
first of all, its cumbersomeness, fragmentation and lacunas.
“Regulatory guillotine” is just one of the modern technologies that can be used to
improve the regulation of business. If the “regulatory guillotine” in Russia becomes not the
end of the control/supervisory reform but one of the first steps of a comprehensive reform
of public governance, then the risks of fragmentation and formalisation of regulation will
be minimised. Due to the lack of contemporary legislation in related areas, there is a risk
that the deregulation reform will degenerate into another campaign of a formal and
technical nature. The “regulatory guillotine” technologies can contribute to the democratic
development and socialisation of public administration, if apply them systematically and
purposefully together with the transformation of related institutions of administrative law.
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