Legal Essence of Technical Regulating

Panova Albina S., Candidate of Law, Associate Professor, Head of the Civil and Entrepreneurial Law Department, The Institute of Economics, Management and Law, Kazan, Russia

The article is devoted to the issues of technical regulating. Technical regulating is viewed as a type of managerial activity, a form of state regulation of economy, and a specific type of legal regulation of public relations.

Key words: technical regulating; legal regulation; state regulation of economy; entrepreneurial activity; technical standards; safety of production.

Technical regulating is a well known concept. The ISO / IEC Guide 2:2004 (Standardization and Related Activities – General Vocabulary) contains the term technical regulations, which is understood as regulations establishing technical requirements (for materials, products, processes and services) that are applied directly, or used as a reference to a standard, technical specification (technical conditions), or a code of rules. Technical regulations can be supplemented with “technical guidelines” which stipulate certain means and techniques of compliance with the obligatory requirements[1]. The notion of “technical regulating” appeared in the Russian legislation on December 27, 2002, when a Federal Law No. 184-FZ  “On  Technical Regulating” was adopted (further – the Law on  Technical Regulating, the Law)[2]. The Law was adopted when the Russian Federation (further – the RF) was preparing to join the World Trade Organization (further – the WTO). The Law established the procedure of technical regulating unified with international and European technical legislation. The norms of the Law comply with the Technical Barriers to Trade Agreement of the WTO (further - the WTO TBT Agreement)[3]. The Treaty on the Eurasian Economic Union (further the EAEU), signed in Astana on May 29, 2014, by the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation[4] in order to promote the Eurasian economic integration and ensure the supply of safe products to the common Eurasian market, establishes  major rules of technical regulating within the EAEU.

Technical regulating influences national economies and systems of utilization of production resources. The process of interaction between economy and technical regulating is complex as economy is an integrated system comprising many separate elements. It is characterized by ambiguity of each element’s purposes and of the system as a whole, as well as by ambiguous connections among the elements constituting the system[5].

Entrepreneurs as the main driving force that produces and markets the goods and services in demand are most interested in sectors of material production. Material production is the process of creating material goods necessary for the functioning and developing of the society[6].

With the help of technical regulating, the state influences the activity of economic subjects engaged in industry, construction, trade and catering, in procurement and marketing, establishing technical requirements for products and circulation of goods on the market. Nowadays, such influence is largely established at the international level.  Technical regulating is an activity connected with development and approval of technical standards, codes of rules; it influences the elaboration of technical conditions related to the quality of goods. As a form of state regulation of economy, technical regulating largely determines the anti-monopoly policy. Its application does not allow a particular leading group of entrepreneurs to dictate their own technical norms in prejudice of other participants of economic relations[7].

The functioning of the system of technical regulating is caused by the necessity to protect both public and private interests. Here, the protection of private interests implies protection of interests of economic entities from actions of negligent producers who strive to use technical norms for unfair competition. Thus, one can say that “the protection of public interests is an important task that should be solved in the process of state regulation; and no less important task of state regulation is the protection of private interests, the combination of private and public interests to achieve the objectives of state regulation”[8].

 Technical regulating is a specific type of legal regulation, as “legal regulation” is the influence of legal norms (a system of legal norms) and other specific legal means on people’s behavior and on public relations in order to balance, protect and develop them in accordance with the public needs[9]. The Law on Technical Regulating (Art.2) directly states that “technical regulating is legal regulation of relations…” As a social regulator, technical regulating is aimed at providing the necessary order and development of relations in material production. That is why one can say that technical regulating is an objective need determined by the demands of social-economic development; it influences the sphere of material production by special legal means (forms and methods).

Legal regulation is a form of managing the socio-economic development. Law forms a particular order in the society, it   arbitrariness. Especially important is legal regulation in the sphere of economic relations, in particular in the sphere of production and distribution, where it serves as the main type of regulation[10]. Law is an important organizing power, a tool for putting public relations in order, one of the forms of managing the economy. It makes economic relations stable[11].   In this connection, one should remember that technical regulating should not be contrasted with legal regulation. The term “legal regulation” is broader than the term “ technical regulating”, as numerous various relations exist in the society, including those that are not associated with the necessity to provide legal means to ensure quality and safety of products, but, at the same time, require legal regulation.  Technical regulating is a part, or a branch, of legal regulation, a public-law component of legal regulation of economic (entrepreneurial) activity.  Technical regulating  involves establishing, implementing and executing  obligatory requirements to production or to the related processes of projecting (including investigations), production, construction, installing, adjustment, exploitation, storing, transportation, marketing and utilization (further – processes). The establishment and application of voluntary requirements to production, processes, works and services. The sphere of technical regulating includes also legal regulation of conformity assessment. In other words, these are relations connected with the necessity to determine the conformity of products (processes, works, services) to the requirements imposed on them. Conformity assessment implies using specific juridical means, such as proof of conformity state control (monitoring), accreditation, tests, registration, acceptance and implementation of the finished construction, etc.

The sphere of technical regulating includes three types of objects: production, processes, and works and services.

Technical requirements are set for products[12]. The products should be intended for the “…purchase as goods”[13]. The object of purchase can be not only goods for personal consumption, but also goods for industrial use. For example, there are technical requirements for machines and equipment (Technical Regulations of the Customs Union 010/2011 “On Safety of Machines and Equipment”)[14]. As buildings and constructions can be dangerous for people’s life and health, for the purposes of  technical regulating they are regarded as  production, thus coming within the purview of obligatory technical regulations (Federal Law of December 30, 2009, No. 384-FZ “Technical regulations for Safety of Buildings and Constructions”)[15].

The term “process” is interpreted as a consecutive change of conditions, stages of a  system or object development[16]. The processes that are the stages of a product’s life cycle from the economic viewpoint  come within the purview of  technical regulating . According to the technical legislation, processes are material services – works and services execution of which provides production of goods, preservation of their qualities, and their transportation (GOST Р 50646-2012)[17]. These processes are directly connected with products, so there are obligatory technical requirements established for them. However, if the products do not come within the purview of a sphere   regulated by legislation, then only voluntary requirements can be established in regard to the products and the related processes.

The works not connected with products (not included in their life cycle) are not considered “processes” by the legislation on technical regulating, though they come within the purview of “material service”. For such works (“not processes”), voluntary requirements can be established, and voluntary conformity assessment can be carried out. These works are connected with rendering public services to the population. They are household works, fixing and making things, redecoration of apartments, etc.

There can be services not connected with products. Such services are “non-material services”, their result is not expressed in a material form.  In order to increase their quality, voluntary requirements can be established. For example, such services with voluntary requirements are medical, veterinary, hotel, tourist services, etc. There is a risk of doing harm when rendering them. However, such harm is not determined by the use of inferior goods, which may become inferior because of improper conditions of storage, transportation, etc. Harm may occur due to the executor’s rendering improper services.  Among legal means that promote the proper rendering of “non-material” services are, for example, standardization and classification of hotel industry venues, insurance when rendering tourist services[18]. In the medical sphere, it is quality and safety control of medical activities, compliance of medical activities to medical aid standards, licensing of medical activities, medical insurance[19], registration of specialists in the veterinary sphere who are engaged in business activities, control over the veterinarians’ activities, the exercise of state veterinary monitoring[20], etc. Voluntary certification can be conducted to assess conformity of the process of rendering “non-material” service to standards and to conditions of civil-law agreements.

Taking all the above into account, we consider the Concept of Legislation on  Technical Regulating to be efficient in the part stipulating that it is impossible to establish obligatory technical standards for works and services  not connected with products.

Technical regulating is managerial by nature.  Technical regulating includes, product safety management. Safety management can be interpreted in technological and social senses. Revealing, creating, and changing properties of an object to minimize the potential harm are features of a technological aspect of the product safety management. The managing subject is an engineer, a technologist, etc. The managerial activities are conducted in relation to objects (things, products), and their properties; technical (technological) norms are used.

If the product safety management takes place via establishing safety indicators, we can speak about the product safety management in the social sense. The managing subject is the state. The managerial impact is   made on public relations arising in connection with  the production or marketing of goods. Not all norms used in the sphere of the product safety management are merely social by nature. A large part of regulations has both technical and legal characteristics: they establish parameters, indicators and levels of production safety, rules of acceptance, methods of control and testing of products, etc. Thus, the product safety management is characterized by the implementation of technical and legal norms and rules. Through the system of technical regulating, the state controls the implementation of obligatory norms only. Observance of other norms that exist in the form of standards, technical conditions, instructions at an enterprise, is controlled by the economic entities themselves, i.e. by the producers. The core of technical regulating is technical regulations that set the requirements to products and related processes established by the state.

In technological and social senses, we can speak about product quality management. If quality management consists in changing (“inclusion”, “removal” and other “modifications”) objective properties of material things (in our case - certain products), then this is technological quality management. If quality management consists in setting indicators (single, complex, or integral, etc.), then this is something else. Here we can speak about a sort of social activity aimed at  regulating  people’s behavior. The object of such quality management is not goods or their properties, but public relations that can be formed for various reasons, can be a social means of achieving certain goals, can take certain forms, including legal ones, or have various social parameters and features.

Researching the essence and important features of technological quality management is the domain of technical and related sciences (such as merchandising). As for the social aspect of production quality management, it is of interest for a number of sciences: economics, law, statistics, etc[21].

Currently, entrepreneurs implement product  quality management within their  enterprises. They form and use mechanisms providing the proper quality of their products . In particular, they use international and regional (inter-state) standards, national standards, voluntary certification of products and quality systems, elaborate technical conditions in coordination with their customers, control implementation of voluntary requirements. The intra-company regulation of quality issues is a prospective direction of this activity.

Technical regulating is a public element in the system of inter-sectoral legal regulation of business. By means of technical regulating the state controls the sphere of production turnover.  Technical regulating is complex by nature. It is reflected in the necessity to regulate various relations and in the lack of sectoral homogeneity of norms regulating the relations in the sphere of technical regulating.

From the viewpoint of juridical theory and practice, it is most logical to refer the legal institution of technical regulating to the institutions of entrepreneurial law, as entrepreneurial law is a “complex establishment combining public-law and private-law  foundations”[22]. Under mixed economy, the institution of  technical regulating is intended for organizing and due ranking of activities  aimed at systematically obtaining profit from the use of property, selling  goods, carrying out work, rendering services by persons who have undergone special registration. Technical regulations do not apply to relations that do not include transferring goods, executing works, rendering paid systematic services (goods, works and services that “do not circulate”). That is why the goods arriving at the RF territory as humanitarian aid, or for internal use by consulates and diplomatic offices are not tested for safety and are not subject to technical regulating. For such products (their consumer and exploitation properties), technical requirements are not established.

In conclusion, we should highlight that technical regulating is a special type of legal regulation that includes using a combination of specific legal (technical and legal) means, such as technical standards, obligatory certification, compliance confirmation, etc., in order to protect consumers’ interests from harmful influence of dangerous products.  Technical regulating is also aimed at ranking and developing of entrepreneurial activity in various sectors of material production. Currently, the peculiarity of technical regulating in Russia is that it is developing as a component of supra-national system of technical regulating within the EAEU.

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