Kobrin A. The concept of the regulatory state in Ukraine

Kobrin A. The concept of the regulatory state in Ukraine // Актуальні питання державотворення в Україні: матеріали міжнародної науково-практичної конференції (23 травня 2014 року) / Редкол.: д.ю.н. І. С. Гриценко (голова), проф. П. С. Берзін (заст. голови), к.ю.н. І. С. Сахарук (відп. ред.) – К.: Прінт-Сервіс, 2014. – C. 517-519
The basic notion for the concept of the regulatory state is regulation. The doctrine defines regulation in a variety of ways, partly because it is a concept developed in many scientific areas. Also it depends on theories which are singled out by various authors (for example, Fabrizio Gilardi singles out public interest theory, economic approach, political theory of regulation [Fabrizio Gilardi Delegation in the regulatory state : independent regulatory agencies in Western Europe / Edward Elgar Publishing, 2008 — p. 14.]). Nevertheless, one of the applicable approach is presented by French regulation school which notes that regulation covers a wide range of institutional forms (including laws, informal arrangements, values and norms) coordinating the decentralized behavior of economic actors [Boyer Robert Aux origines de la théorie de la régulation’, in R. Boyer and Y. Saillard (eds). Théorie de la régulation. L’état des savoirs, Paris: La Découverte, 1995 — pp. 21-30]. But the concept of regulatory state specifies this notion, including a state as the main actor in the regulation.

To identify what a regulatory state is, it is important to describe the difference between positive and regulatory state. A positive state is more directed to spend money on its regulatory activity, whilst a regulatory state, mainly, make rule-making policy. For example, the EU is an ideal-typical case of the regulatory state. In fact, the tiny EU budget (in comparison to that of member states) has forced the Commission (one of the institution of the EU) to rely extensively on regulatory policies when carrying out its activities [Majone Giandomenico The Rise of the Regulatory State in Europe / West European Politics 17(3), 1994 — pp. 77-101].

Also it is important to mention other players in the relations connected with regulation. Regulators serve the interests of the regulated firms. In Fabrizio Gilardi’s opinion «[r]egulators and regulatees need each other: agencies tend to be understaffed and have no rely on regulated companies for information and expertise, while companies compete with each other not only for customers, but also for insider access to the regulatory process» [Fabrizio Gilardi Delegation in the regulatory state : independent regulatory agencies in Western Europe / Edward Elgar Publishing, 2008 — p. 24].

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The most important peculiarity of any regulatory state is an existing of regulatory agencies, especially independent ones, which emerged in the USA and spread among the world (for example, in UK — quangos, in Czech Republic — nezávislé správní orgány, in France – les autorités administratives indépendantes). Kenneth F. Warren defines a regulatory agency as an administrative agency which promulgates rules, regulations and orders for the purpose of controlling various socio-economic activities. Also the author on the example of the USA single out independent regulatory agencies (hereinafter — IRAs), quasi-independent regulatory agencies, executive departments and other public agencies [Warren, Kenneth F. Administrative law in the political system / Kenneth F. Warren.–2nd ed.1943 — pp. 30-35, 734].

The aim of independence of IRAs is to decrease political influence on them because they do special activities which must be beyond politics. In the USA the most important guaranties are further:

1) they are multi-headed;

2) they are appointed by the president with the consent of the Senate;

3) they can’t be removed except for cause (malfeasance, misfeasance, nonfeasance);

4) they work during a fixed term;

5) there is an enabling law which establishes an IRA.

The system of executive power of Ukraine is regulated by the Constitution of Ukraine, some laws and president’s decree on optimization of the system of central bodies of executive power. The last act establishes 18 ministries, 52 central bodies of executive power and 5 central bodies of executive power with special status. 18 ministries have almost the same status as executive departments in the USA and are directed and coordinated by The Cabinet of Ministers of Ukraine (hereinafter — CMU). 52 central bodies of executive power have almost the same status as quasi-independent regulatory agencies and are directed and coordinated by the CMU through ministries. 5 central bodies of executive power with special status (hereinafter — CBEPSCs) have almost the same status as IRAs. There are further CBEPSCs:

1) anti-monopoly committee of Ukraine (hereinafter — AMCU);

2) the state committee for television and radio broadcasting of Ukraine (hereinafter — SCTRBU);

3) the state property fund of Ukraine (hereinafter — SPFU);

4) the state service of special communication and information protection of Ukraine (hereinafter — SSSCIPU);

5) the national agency of Ukraine on civil service (hereinafter — NAUCS).

But it is difficult now to say that the mentioned CBEPSCs are IRAs because of a lack of CBEPSCs’ independence in comparison with the USA and the EU. The most problematic issues in context of institutional independence in Ukraine are enabling law, dismissal and fixed-term.

CBEPSCs’ activities are regulated by either special law (AMCU, SPFU, SSSCIPU) or president’s decree (SCTRBU, NAUCS) (after law № 742-VII (21.02.2014) it can be adopted only by the CMU). So there is no unified approach to what legal act should regulate CBEPSCs’ activity. For the independence of the CBEPSCs it is better to adopt special law on CBEPSCs.

There are special provisions in law of Ukraine on central bodies of executive power (article 24) which duplicates constitutional provisions (clause 12, paragraph 1, article 85 and clause 9-2, paragraph 1, article 116 of the Constitution of Ukraine) and says only that the head of CBEPSC shall be appointed or dismissed by the prime minister of CMU with the consent of the parliament. Deputies of the head shall be appointed or dismissed by the prime minister of the CMU with the consent of the CMU. But only in law on AMCU there is a list of causes when the head can be dismissed. It is also the problem for independence because for SPFU,

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SSSCIPU, SCTRBU and NAUCS there are no such lists of causes. So it is better to include provisions in law on central bodies of executive power that the head of a CBEPSC can be dismissed only for cause. Also there is no fixed-term for SPFU, SSSCIPU, SCTRBU and NAUCS.

So it is difficult to say that there is independence of CBEPSCs, because there are no unified approach what source of law must regulate CBEPSCs’ activity and provisions on a dismissal and a fixed-term. These circumstances are obstacles to say that CBEPSCs are IRAs, but at the same time independence of CBEPSCs must be established in order to get rid of possible political element in CBEPSCs’ activity.

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