Defense of a Lawyer in an Administrative court
Liability under part 2 of Article 159 of the Administrative Code occurs for the commission of anticompetitive coordinated actions by market participants prohibited by the PC, if these actions do not contain signs of a criminal offense. According to the disposition, the content and concept of anticompetitive coordinated actions of market participants is given in Article 170 of the PC. When considering cases in this category, courts should keep in mind that the provisions of Article 170 of the Criminal Code have been in force in a new version since January 1, 2017 (amended by the law of December 28, 2016). In accordance with paragraph 1 of Article 170 of the PC, coordinated actions of market entities engaged in the production and sale of goods aimed at restricting competition are prohibited, including those related to: 1) the establishment and (or) maintenance of prices or other conditions for the purchase or sale of goods; 2) unjustified restrictions on the production or sale of goods; 3) unjustified refusal to conclude contracts with certain sellers (suppliers) or buyers; 4) the application of discriminatory conditions to equivalent contracts with other entities. Along with establishing the commission of such actions, the courts should find out whether such actions are aimed at restricting competition. At the same time, according to paragraph 2 of Article 170 of the PC, the actions of market entities specified in paragraph 1 of Article 170 of the PC may be recognized as coordinated if they collectively meet the following conditions: 1) these actions restrict competition; 2) the result of such actions corresponds to the interests of each of the market entities; 3) the actions of market participants are known to each of them in advance in connection with a public statement by one of them or the public posting of information by one of them about the commission of such actions; 4) the actions of each of these market participants are caused by the actions of other market participants participating in coordinated actions; 5) the actions of market entities are not the result of circumstances that equally affect these market entities (changes in the tax and other legislation of the Republic of Kazakhstan, consumption dynamics, tariffs for services of natural monopolies, prices for raw materials and goods used in the production and sale of goods); 6) the total share of market entities in the relevant market The market share is thirty-five percent or more.
Defense of a Lawyer in an Administrative court
At the same time, the minimum share of one market entity in the relevant commodity market should be five percent or more. An analysis of the above norms allows us to conclude that in order to qualify the actions of a subject under part 2 of Article 159 of the Administrative Code, the courts should establish the following circumstances: 1) performing at least one of the actions provided for in paragraph 1 of Article 174 of the PC; 2) to find out whether they are agreed, that is, whether they meet the totality of the conditions for their recognition provided for in paragraph 2 of Article 174 of the PC; 3) whether the person is a subject of this market. The issues of research and evaluation of evidence are attributed to the competence of the court (authorized body), however, the burden of proving the existence of an administrative offense, including qualifying features, is assigned only to the authorized body. The generalization showed the lack of uniformity of judicial practice in the examination of evidence under the condition that these actions limit competition. The authorized body interprets this category narrowly, which the courts agree with only from the point of view of influencing consumers. The PC does not disclose the content of the concept of restriction of competition. Appendix No. 19 of the Treaty on the Eurasian Economic Union (ratified by the Law of the Republic of Kazakhstan dated October 14, 2014 No. 240-V SAM) contains signs of competition restrictions – reduction in the number of economic entities (market entities) not belonging to the same group of persons in the commodity market, an increase or decrease in the price of goods not related to corresponding changes in other general conditions of circulation of goods on the commodity market, the refusal of economic entities (market entities) not belonging to the same group of persons from independent actions in the commodity market the market, determination of the general conditions for the circulation of goods on the commodity market by agreement between business entities (market entities) or in accordance with the instructions of another person that are mandatory for them, or as a result of coordination by business entities (market entities) that are not part of the same group of persons of their actions on the commodity market, as well as other circumstances that create an opportunity for the business entity an entity (market entity) or several economic entities (market entities) can unilaterally influence the general conditions of circulation of goods on the commodity market.
Due to the absence of the concept of restriction of competition in the legislation, it is proposed to focus on the explanation given in annex 19 to the Treaty on the Eurasian Economic Union on the signs of restriction of competition when considering cases of violation of legislation in the field of competition protection of the Republic of Kazakhstan. The issues of establishing such a condition are ambiguously resolved when the actions of market participants are known to each of them in advance in connection with a public statement by one of them or the public posting of information by one of them about the commission of such actions (subparagraph 3) of paragraph 2 of Article 174 of the PC). An analysis of the above rule allows us to conclude that the courts should establish the existence of two circumstances in combination.: 1) the existence of a public statement by one of them or the public posting of information by one of them about the commission of actions; 2) early awareness of the subjects that such actions will be committed (for example: prices will be increased) . When proving this condition, the antimonopoly authority provides information about the general availability of price information and completely ignores the second condition that market participants knew in advance about the planned increase in the price of goods by one of the competitors. The facts provided by the authorized body about the availability of price information and its publication on websites or on information panels at points of sale relate to the current prices of goods. Whereas in subparagraph 3) of paragraph 2 of Article 170 of the PC, it is said that the market entity had to inform in advance about the planned behavior in the commodity market.
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