An exhaustive list of documents, data, materials and approvals in construction is being prepared for adoption
Pepeliaev Group advises that the Russian Ministry of Construction, Housing and Utilities has drafted a Resolution of the Russian Government to approve an exhaustive list of documents, data, materials and approvals for which Russian regulations provide and which are necessary for the implementation of a construction project (the “Resolution”)[1].
A specific exhaustive list of documents, data, materials and approvals is set out with respect to each measure set out in the draft list.
Please note that in a number of cases the list does contain information as to in which specific situation a specific document (data, materials or approvals) is (are) required. Neither does it contain information as to what provisions set out that specific documents, data, materials and approvals should be in place.
The draft Resolution specifies that the Russian Ministry of Construction, Housing and Utilities will provide clarifications regarding the application of the Exhaustive List[3].
If the provisions of the Exhaustive List are not in line with the provisions of primary and/or subordinate legislation owing to such primary and/or subordinate legislation having been amended, the current provisions of primary and/or subordinate legislation will apply until the list is brought into line with the specified amendments[4].
Exhaustive lists of procedures in areas of construction will apply before the Exhaustive List comes into force[5]. As soon as the Resolution is adopted the specified lists will be revoked[6].
When the draft Resolution is adopted:
The Resolution is expected to come into force on 1 March 2022[7].
For the purposes of implementing this principle the Town-Planning Code establishes[9]:
The Russian Government has approved exhaustive lists of procedures:
The introduction of the exhaustive lists made it possible to:
[1] The title of the Resolution: “On approving an exhaustive list of documents, data, materials and approvals for which regulations of the Russian Federation provide and which are necessary for the application of the measures set out in articles 5.2(3) - 5.2(7) of the Russian Town-Planning Code when implementing a project involving the construction of a capital construction facility and on repealing individual regulations of the Government of the Russian Federation”. The draft Resolution is located at the address https://regulation.gov.ru/projects#npa=119851.
[2] Article 5.2 (9) of the Town-Planning Code.
[3] Clause 2 of the draft Resolution.
[4] Clause 3 of the draft Resolution.
[5] For information about the exhaustive lists of procedures, please see the Background section below.
[6] Article 6(2) of Federal Law No. 275-FZ dated 1 July 2021 and clause 4 of the Draft Resolution.
[7] Clause 5 of the draft Resolution.
[8] Article 1(1) of Federal Law No. 80-FZ dated 20 April 2014.
[9] Article 1(2) of Federal Law No. 80-FZ dated 20 April 2014.
[10] Article 2 of Federal Law No. 80-FZ dated 20 April 2014.
[11] The Russian Government's Resolution No. 403 dated 30 April 2014.
[12] The Russian Government's Resolution No. 346 dated 28 March 2017.
[13] The Russian Government's Resolution No. 452 dated 17 April 2017.
[14] The Russian Government's Resolution No. 1138 dated 7 November 2016.
[15] The Russian Government's Resolution No. 1504 dated 27 December 2016.
[16] Since 10 January 2016 article 18.1(1) of the Law “On protecting competition” has been supplemented with powers of the antimonopoly authority to examine claims concerning the regulations and/or actions or an omission of authorities and their officials when procedures were being carried out that were entered into the exhaustive lists with respect to: a) violating the timeframes of such procedures; b) demanding that a procedure be carried out which was not included in the exhaustive lists (article 18.1(1) of the law). The antimonopoly authority was also granted the power to issue orders to eliminate violations of the procedures included in the exhaustive lists (article 23(1)(3.1) of the law as amended by Federal Law No. 250-FZ dated 13 July 2015).
Since 29 July 2018 the Law “On protecting competition” has been supplemented with powers of the antimonopoly authority to examine claims relating to the specified regulations and/or actions/an omission with respect to: unlawfully refusing to accept documents and applications; imposing on a person who is filing a claim, documents and information requirements for which federal laws, other regulations of the Russian Federation and of the constituent entities of the Russian Federation do not provide if the procedure set out in the above regulations is included in the exhaustive list of procedures.
[17] Since 10 January 2016 article 14.9.1 of the Russian Code of Administrative Offences has been in force. It provides for liability for unlawful actions/an omission of officials when procedures included in the exhaustive lists are carried out that involve violating the timeframes of the procedures or requiring a procedure to be carried out that is not included in the exhaustive list.
[18] See Federal Law No. 275-FZ dated 1 July 2021.
[19] Article 5.2 (9) of the Town-Planning Code.
[20] Article 5.2 (10) of the Town-Planning Code.
[21] However, the legislature has specified in the Law “On protecting competition” (article 18.1 of the law) that claims relating to the regulations/actions/omissions of authorities (their officials) should be filed with respect to demanding that measures should be carried out which are not set out in article 5.2 of the Town-Planning Code. That is, the Law “On protecting competition” treats the list of measures as an exhaustive list. Possibly, the legislature wanted to establish in article 5.2 of the Town-Planning Code specifically an exhaustive list of measures in construction, but did not specify that directly in article 5.2. That an exhaustive list of measures has been established in article 5.2 of the Town-planning Code is also attested by the new article 63(18) of the Town-Planning Code (in force since 1 September 2021) whereby in cities with federal status, apart from the measures set out in article 5.2 of the Town-Planning Code, the following activities may be carried out: approval of the architectural and urban development design of a facility; issuance of an opinion as to whether the project documentation is in line with the summary plan of underground utility systems and constructions. Therefore, the list of measures included in article 5.2 of the Town-Planning Code should be considered exhaustive.
[22] Article 2 of Federal Law No. 275-FZ dated 1 July 2021.
[23] The regulations of the constituent entities of the Russian Federation and municipalities determine the content of the register of descriptions of the procedures relating to the specifics of carrying out construction activity in the constituent entities of the Russian Federation and municipalities. Part of the specified content includes lists of documents, data, materials and approvals that are necessary for carrying out specific measures in construction.
Draft Resolution
The draft Resolution is based on the provisions of the new article 5.2 of the Russian Town-Planning Code (the “Town-Planning Code”), which came into force on 1 September 2021. The specified provisions grant to the Russian Government powers to approve the exhaustive list of documents, data, materials and approvals for which regulations of the Russian Federation provide and which are necessary for the application of compulsory measures in construction (the “Exhaustive List”)[2].A specific exhaustive list of documents, data, materials and approvals is set out with respect to each measure set out in the draft list.
Please note that in a number of cases the list does contain information as to in which specific situation a specific document (data, materials or approvals) is (are) required. Neither does it contain information as to what provisions set out that specific documents, data, materials and approvals should be in place.
The draft Resolution specifies that the Russian Ministry of Construction, Housing and Utilities will provide clarifications regarding the application of the Exhaustive List[3].
If the provisions of the Exhaustive List are not in line with the provisions of primary and/or subordinate legislation owing to such primary and/or subordinate legislation having been amended, the current provisions of primary and/or subordinate legislation will apply until the list is brought into line with the specified amendments[4].
Exhaustive lists of procedures in areas of construction will apply before the Exhaustive List comes into force[5]. As soon as the Resolution is adopted the specified lists will be revoked[6].
When the draft Resolution is adopted:
- there will be one document listing all documents, data, materials and approvals that are necessary for implementing compulsory measures in construction;
- the quantity will reduce of the documents, data, materials and approvals that participants in construction are required to have in practice without there being any grounds for doing so.
The Resolution is expected to come into force on 1 March 2022[7].
Background
In 2014, with a view to simplifying the procedure for carrying out construction activity, the Town-Planning Code was supplemented with a new principle: uniform requirements for cooperation procedure between those involved in town-planning relationships[8].For the purposes of implementing this principle the Town-Planning Code establishes[9]:
- the power of the Russian Government to approve exhaustive lists of construction procedures;
- a ban on establishing obligations to carry out procedures during construction that are not set out in the specified exhaustive lists.
The Russian Government has approved exhaustive lists of procedures:
- in the construction of housing[11];
- in the construction of non-residential capital construction facilities[12];
- in the construction of heat supply networks[13];
- in the construction of water supply and water disposal facilities[14];
- in the construction of power grid facilities with a voltage level below 35 kv[15].
The introduction of the exhaustive lists made it possible to:
- exclude from the regulations of the constituent entities of the Russian Federation and municipalities requirements for which the regulations of the Russian Federation did not provide (by bringing the regulations into line with the exhaustive lists, contesting illegal regulations and coercing the bringing into line of the regulations with the exhaustive lists);
- contest before the antimonopoly authority[16] or challenge in court the actions/omission of authorities based on the exhaustive lists;
- simplify the imposition of administrative liability on officers for unlawful actions/an omission when procedures are carried out that are included in the exhaustive lists[17].
- the Russian Government’s powers to approve the exhaustive lists of procedures in construction have been excluded from the Town-Planning Code;
- the ban on establishing an obligation to carry out procedures that are not set out in the exhaustive lists of procedures has been excluded from the Town-Planning Code;
- article 5.2 has been added to the Town-Planning Code that establishes a list of measures that may be compulsory during construction;
- a power of the Russian Government has been established to approve an exhaustive list of documents, data, materials and approvals that are set out in the Russian regulatory instruments and that are necessary for carrying out the specified measures[19];
- a ban has been established on demanding that permissions, opinions, documents, data, materials and approvals not included in the list should be obtained for the purposes of the above measures[20].
Please note that the legislature has granted the city of Moscow a special power to supplement the list of measures set out in article 5.2 of the Town-Planning Code with measures that were included in the exhaustive lists of measures before 1 January 2021[22].
Further, that the Russian Government has been granted the power to approve the Exhaustive List should eliminate the following drawback of the previous regulation: the lists of documents, data, materials and approvals necessary for carrying out specific measures (procedures) in construction are currently contained in many regulatory instruments both at the level of the Russian Federation, and at the level of the constituent entities of the Russian Federation and municipalities[23].
What to think about and what to do
We recommend reading the draft Resolution carefully and tracking the date when it will be adopted in order to take into account the provisions of the Exhaustive List when planning and carrying out construction activity.Help from your adviser
Pepeliaev Group’s lawyers are ready to provide legal assistance to companies with respect to the application of the new Exhaustive List.[1] The title of the Resolution: “On approving an exhaustive list of documents, data, materials and approvals for which regulations of the Russian Federation provide and which are necessary for the application of the measures set out in articles 5.2(3) - 5.2(7) of the Russian Town-Planning Code when implementing a project involving the construction of a capital construction facility and on repealing individual regulations of the Government of the Russian Federation”. The draft Resolution is located at the address https://regulation.gov.ru/projects#npa=119851.
[2] Article 5.2 (9) of the Town-Planning Code.
[3] Clause 2 of the draft Resolution.
[4] Clause 3 of the draft Resolution.
[5] For information about the exhaustive lists of procedures, please see the Background section below.
[6] Article 6(2) of Federal Law No. 275-FZ dated 1 July 2021 and clause 4 of the Draft Resolution.
[7] Clause 5 of the draft Resolution.
[8] Article 1(1) of Federal Law No. 80-FZ dated 20 April 2014.
[9] Article 1(2) of Federal Law No. 80-FZ dated 20 April 2014.
[10] Article 2 of Federal Law No. 80-FZ dated 20 April 2014.
[11] The Russian Government's Resolution No. 403 dated 30 April 2014.
[12] The Russian Government's Resolution No. 346 dated 28 March 2017.
[13] The Russian Government's Resolution No. 452 dated 17 April 2017.
[14] The Russian Government's Resolution No. 1138 dated 7 November 2016.
[15] The Russian Government's Resolution No. 1504 dated 27 December 2016.
[16] Since 10 January 2016 article 18.1(1) of the Law “On protecting competition” has been supplemented with powers of the antimonopoly authority to examine claims concerning the regulations and/or actions or an omission of authorities and their officials when procedures were being carried out that were entered into the exhaustive lists with respect to: a) violating the timeframes of such procedures; b) demanding that a procedure be carried out which was not included in the exhaustive lists (article 18.1(1) of the law). The antimonopoly authority was also granted the power to issue orders to eliminate violations of the procedures included in the exhaustive lists (article 23(1)(3.1) of the law as amended by Federal Law No. 250-FZ dated 13 July 2015).
Since 29 July 2018 the Law “On protecting competition” has been supplemented with powers of the antimonopoly authority to examine claims relating to the specified regulations and/or actions/an omission with respect to: unlawfully refusing to accept documents and applications; imposing on a person who is filing a claim, documents and information requirements for which federal laws, other regulations of the Russian Federation and of the constituent entities of the Russian Federation do not provide if the procedure set out in the above regulations is included in the exhaustive list of procedures.
[17] Since 10 January 2016 article 14.9.1 of the Russian Code of Administrative Offences has been in force. It provides for liability for unlawful actions/an omission of officials when procedures included in the exhaustive lists are carried out that involve violating the timeframes of the procedures or requiring a procedure to be carried out that is not included in the exhaustive list.
[18] See Federal Law No. 275-FZ dated 1 July 2021.
[19] Article 5.2 (9) of the Town-Planning Code.
[20] Article 5.2 (10) of the Town-Planning Code.
[21] However, the legislature has specified in the Law “On protecting competition” (article 18.1 of the law) that claims relating to the regulations/actions/omissions of authorities (their officials) should be filed with respect to demanding that measures should be carried out which are not set out in article 5.2 of the Town-Planning Code. That is, the Law “On protecting competition” treats the list of measures as an exhaustive list. Possibly, the legislature wanted to establish in article 5.2 of the Town-Planning Code specifically an exhaustive list of measures in construction, but did not specify that directly in article 5.2. That an exhaustive list of measures has been established in article 5.2 of the Town-planning Code is also attested by the new article 63(18) of the Town-Planning Code (in force since 1 September 2021) whereby in cities with federal status, apart from the measures set out in article 5.2 of the Town-Planning Code, the following activities may be carried out: approval of the architectural and urban development design of a facility; issuance of an opinion as to whether the project documentation is in line with the summary plan of underground utility systems and constructions. Therefore, the list of measures included in article 5.2 of the Town-Planning Code should be considered exhaustive.
[22] Article 2 of Federal Law No. 275-FZ dated 1 July 2021.
[23] The regulations of the constituent entities of the Russian Federation and municipalities determine the content of the register of descriptions of the procedures relating to the specifics of carrying out construction activity in the constituent entities of the Russian Federation and municipalities. Part of the specified content includes lists of documents, data, materials and approvals that are necessary for carrying out specific measures in construction.