Establishment of non-compliance with the terms of anti-competitive concerted actions

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During the study of judicial acts (appeals against orders approving conclusions based on the results of investigations, orders issued, orders to appoint investigations, etc.), it was found that almost the only type of anticompetitive concerted actions encountered are the establishment and maintenance of prices or other conditions for the purchase or sale of goods (subclause 1, clause 1, Article 170 of the PC).

According to paragraph 2 of Article 170, the PCs may be recognized as agreed if they meet the following conditions in aggregate::

1) these actions limit 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 in advance to each of them 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 entities are caused by the actions of other market entities 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 commodity market is 35 percent or more. At the same time, the minimum share of one market entity in the relevant commodity market should be 5 percent or more.

The review of court cases related to anticompetitive concerted actions has shown that, in general, the courts correctly focus on compliance with the 6 above conditions.

According to the claim of LLP (No. 5594-22-00-4/640), LLP (No. 5594-22-00-4/544) LLP (No. 6001-22-00-6ap/2469) LLP (No. 7194-22-00-4/1453), according to which local courts reasonably established non-compliance with a set of conditions, the presence of which allows us to assert the commission of anticompetitive concerted actions.

At the same time, according to the claim of LLP and LLP (No. 6001-23-00-6ap/494), the local courts refused to satisfy the requirements due to the fact that the analysis conducted by the Antimonopoly Authority is legitimate, since the boundaries of the market and the time interval are reasonably determined and signs of anticompetitive concerted actions are seen in the actions of the objects of investigation.

At the same time, the SCAD of the Supreme Court disagreed with the decision of the local courts and concluded that the Antimonopoly Authority had not studied the issue of defining boundaries, because such data was missing from the analysis, and therefore it was also impossible to make an appropriate assessment of the state of the competitive environment in the commodity market. I.e., there was no information to confirm the dominance of market participants - objects of investigation.

Return of administrative cases.

The refunds fall on subparagraph 6) of the second part of Article 138 of the CPC "the plaintiff withdrew the claim" - as well as subparagraph 11) of the second part of Article 138 of the CPC "the case is not subject to consideration in administrative proceedings"

The basis (according to the second part of Article 138 of the APPC):

1) the plaintiff has not complied with the pre-trial dispute settlement procedure established by law for this category of cases and the possibility of applying this procedure has not been lost

4) the application is signed by a person who does not have the authority to sign or present it.

15) the court refused to restore the missed deadline

17) the case is beyond the jurisdiction of this court

The analysis showed that a large number of refunds based on subparagraph 11) of the second part of Article 138 of the CPC are related to errors made by plaintiffs when filing administrative lawsuits.

In accordance with the second part of Article 5 of the CPC, the task of administrative proceedings is the fair, impartial and timely resolution of administrative cases in order to effectively protect and restore violated or disputed rights, freedoms and legitimate interests of individuals, rights and legitimate interests of legal entities in public relations.

It is important to note that public law relations arise between subjects of law in connection with the exercise by one of the participants of his powers in relation to the other.

It should be noted that, in accordance with part 5 of Article 138 of the CPC, failure to provide a written response or a reasoned position is the basis for the application of a monetary penalty and does not prevent the consideration of an administrative case on its merits.

Regulatory legal acts

The main regulatory legal acts that courts should follow when considering cases related to the application of antimonopoly legislation are:

1) The Constitution of the Republic of Kazakhstan dated August 30, 1995;

2) The Business Code of the Republic of Kazakhstan dated October 29, 2015 (PC);

3) Administrative Procedural Procedure Code of the Republic of Kazakhstan dated June 29, 2020 No. 350-VI (APPC);

4) The Code of the Republic of Kazakhstan "On Administrative Offenses" dated July 5, 2014 No. 235-V SAM (Administrative Code);

5) The Law of the Republic of Kazakhstan "On Natural Monopolies" dated December 27, 2018 No. 204-VI SAM (Law);

6) Judicial Board on Administrative Cases of the Supreme Court of the Republic of Kazakhstan (SCAD VS);

7) The Agency for Protection and Development of Competition of the Republic of Kazakhstan and its territorial bodies (antimonopoly authority);

8) The Committee for Regulation of Natural Monopolies of the Ministry of National Economy of the Republic of Kazakhstan and its territorial bodies (authorized body for regulation of natural monopolies).

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