Appeal of actions on inclusion in the State Register of Subjects of Natural Monopolies
According to article 11 of the Law, the State Register of Subjects of Natural Monopolies is a list of individual entrepreneurs and legal entities providing regulated services, formed by the authorized body. The provision of regulated services by persons who are not included in the State Register of Subjects of Natural Monopolies is not allowed. An individual entrepreneur or a legal entity providing regulated services applies to the authorized body with an application for inclusion in the State Register of Natural Monopoly Entities no later than fifteen calendar days from the date of commencement of the provision of regulated services to consumers. The formation and maintenance of the State Register of Subjects of Natural Monopolies is carried out by including and excluding subjects of natural monopolies from it. The State Register of subjects of Natural Monopolies consists of republican and local sections. The republican section of the State Register of Subjects of Natural Monopolies includes subjects of natural monopolies providing regulated services on the territory of two or more regions, cities of republican significance and the capital. The local sections of the State Register of Subjects of Natural Monopolies include subjects of natural monopolies providing regulated services in the territory of one oblast or city of republican significance, or the capital. A natural monopoly entity is included in the State Register of Natural Monopoly Entities at the place of registration of an individual entrepreneur or a legal entity, with the exception of a foreign legal entity that is subject to inclusion in the State Register of Natural Monopoly Entities at the place where the regulated service is provided to them.
Appeal of actions on inclusion in the State Register of Subjects of Natural Monopolies
In the event of termination of the provision of a regulated service, the natural monopoly entity shall, no later than fifteen calendar days, submit to the authorized body an application for its exclusion from the State Register of Natural Monopoly Entities. According to subparagraph 1) of paragraph 3 of Article 2 of the Law, this Law does not apply to legal entities engaged in activities classified as natural monopolies, in the event that the activity is related to the construction and operation of facilities intended solely for their own needs. Thus, by the decision of the Council of Economic and Social Council of the Karaganda region dated May 5, 2018, the application of "K" LLP was satisfied, and the inclusion of the LLP by the Department in the local section of the State Register of Natural Monopolies on the basis of the order dated January 22, 2018 was declared illegal. By a decision of the judicial board for Civil Cases of the Karaganda Regional Court dated August 8, 2018, the court's decision was overturned, with a new decision rejecting the application. The case materials established that on March 1, 2016, an outsourcing agreement was concluded between LLP (contractor) and JSC "A" (customer), under the terms of which JSC transfers to LLP the business process for the maintenance of a liquefied gas section, as well as gas supply to the entry points and maintenance of gas pipelines, where the consumer is exclusively the customer himself. The annexes to the Agreement are an integral part of it. Appendix No. 1 establishes the composition of funds for the liquefied gas and gas filling station section, the list of which includes the gas filling station, vessels, main pipelines of liquefied gas, compressors, etc. JSC applied to the Department with a request to verify the LLP's compliance with the legislation on natural monopolies. After checking, the Department, by order dated January 22, 2018, included the LLP in the local section of the State Register of Natural Monopoly Entities in the Karaganda region for such activities as transporting liquefied natural gas through gas pipelines from a group tank installation to a crane at the consumer's entrance. The LLP's stated claim was motivated by the fact that a gas filling station was transferred to the LLP under the concluded Contract, services are provided only to the JSC on its own equipment, therefore there were no grounds for inclusion in the register, taking into account technological features and legal requirements. The court of first instance, satisfying the application, concluded that it was illegal to include the LLP in the register, since the activity is carried out for its own needs, gas is consumed exclusively by the JSC where it is a consumer. The Appellate judicial Board disagreed with the conclusions of the court of first instance.
Canceling the decision, rejecting the claim, the judicial board noted that the operation of the transferred equipment by Service LLP is a consumer of liquefied gas, that is, the LLP does not operate the equipment for its own needs. At the same time, the LLP carries out its activities on the basis of a Contract in order to receive payment from the JSC, which is the recipient of services - the consumer of liquefied gas, however, the LLP does not operate equipment for its own needs. As a result of the above, the court of appeal concluded that the LLP is subject to the Law, and therefore the Department has legitimately included the LLP's activities in the list of regulated services in the field of natural monopolies. GP Tg LLP appealed to the court with an application to the Department for the East Kazakhstan Region for the obligation to cancel the order dated February 24, 2015, stating that the Department, based on the results of an audit conducted on the basis of a request from a third party of U V LLP, by order dated November 7, 2016, the applicant was unreasonably included in the state register of Legal Entities. register of subjects of natural monopolies in the East Kazakhstan region by type of regulated services – transmission and distribution of electric energy. The application was refused by the decision of the Council of Ministers of the East Kazakhstan region dated January 17, 2017. The Court of appeal upheld the said court decision. The courts justified their conclusions with the requirements of subparagraph 3) of paragraph 1 of Article 4, subparagraph 2) of paragraph 1 of Article 14 of the Law, paragraph 12 of the Rules for Inclusion and Exclusion from the State Register of Natural Monopoly Entities, approved by Order No. 64-OD dated March 28, 2014 (hereinafter referred to as the Rules). In the case, it was established that the reason for the applicant's inclusion in the register was that the 10 kV cable line, transformer substation No. 371, etc. The Satpayevs belong to him by right of ownership. According to paragraph 10 of the Rules, when identifying the facts of the provision of regulated services by an individual entrepreneur or a legal entity and (or) in cases of their refusal to provide documents for inclusion in the Register, the authorized body includes them in the Register without providing documents. At the same time, the natural monopoly entity, after its inclusion in the Register, provides documents in accordance with paragraph 9 of these Rules.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
