On the cancellation of the order on the investigation of violations of legislation in the field of protection of competition  

No. 6001-24-00-6ap/1859 dated May 27, 2025

Plaintiff: LLP "M"

Respondent: State Institution "Agency for Protection and Development of Competition of the Republic of Kazakhstan" (hereinafter referred to as the Agency), State Institution "Department of the Agency of the Republic of Kazakhstan for Protection and Development of Competition" (hereinafter referred to as the Department).

The subject of the dispute: the cancellation of the order "On the investigation of violations of the legislation of the Republic of Kazakhstan in the field of protection of competition in relation to LLP "M".

Review of the plaintiff's cassation complaint PLOT:

On June 15, 2022, the Department issued an order contested by the plaintiff "On conducting an investigation into violations of the legislation of the Republic of Kazakhstan in the field of competition protection in relation to LLP "M". year.

The period under review is from January 1, 2020 to September 12, 2022.  

The plaintiff challenged this order in court, arguing that there were no unlawful signs of anti-competitive actions in his actions and there were no grounds for launching an investigation. The plaintiff also claimed that the Department's order was issued without sending a corresponding notification of the presence of signs of violation by the plaintiff of the antimonopoly legislation, which contradicts industry regulations.

Judicial acts:

1st instance: the claim is partially satisfied.

In essence, it was decided to cancel the order regarding the period under review from January 1, 2022 to September 12, 2022.

The rest of the claim was denied.

Appeal: the decision of the court of first instance remains unchanged.

Cassation: the decision of the appellate instance is overturned. The administrative case was sent to the court of appeal for a new hearing in a different composition of the court.

Conclusions: by canceling the disputed order only in part of the period under review (from January 1, 2022 to September 12, 2022), and rejecting the rest of the claim, the court of first instance concluded that the disputed order was issued by the defendant reasonably and within its competence, since the latter had information about the presence of signs monopolistically high prices for SMS services. The Court of appeal fully agreed with this conclusion. The circumstances of the case and the legal position of the courts of previous instances are set out in their judicial acts.

Thus, it has been established and has not been refuted by anyone that the plaintiff, M LLP, is part of the K JSC group of companies.

On March 20, 2024, the Government of the Republic of Kazakhstan and the Government of the State of Qatar signed an Agreement on establishing a long-term strategic partnership for the development of projects in priority sectors (hereinafter referred to as the Agreement).

According to paragraph 2.2 of Appendix A "Strategic Investment Projects" (hereinafter referred to as Appendix A) of the above–mentioned Agreement, company "R" (Investor), directly or through a special purpose company, acquires 100% of the share in the capital of LLP "M" from JSC "K".

Paragraph 2.3 of Appendix A explicitly states that the Government guarantees and agrees that it, as well as the state bodies of the Republic of Kazakhstan, will not take any actions that may lead directly or indirectly to any of the following actions:

interference by him or any government agency, by any actions or other means, in the commercial and/or operational activities of M LLP (subparagraph 2.3.1);

conducting antimonopoly or other investigations, as a result of which measures will be taken related to tariff regulation or the introduction of any requirements, limits and/or restrictions related to the quality of communication and connection, Internet speed, which will have a significant negative impact on the activities of M LLP until December 31, 2026. For the avoidance of doubt, after the expiration of such a period, the investor must continue to rely on the protection provided for in this Agreement (subparagraph 2.3.5).

Paragraph 1 of Article 18 of the Law of the Republic of Kazakhstan "On International Treaties of the Republic of Kazakhstan" (the Law) states that international treaties or their individual provisions are applied temporarily to the extent that they do not contradict the current law of the Republic of Kazakhstan, until their entry into force, if this is provided for by the international treaties themselves or an agreement has been reached with the parties involved in the negotiations.

Every existing international treaty of the Republic of Kazakhstan is subject to mandatory and conscientious implementation by the Republic of Kazakhstan (paragraph 1 of Article 20 of the Law).

The central state bodies of the Republic of Kazakhstan, within the limits of their competence, ensure the fulfillment of obligations and the exercise of the rights of the Republic of Kazakhstan arising from international treaties, as well as monitor the fulfillment by other parties to international treaties of their obligations (paragraph 4 of Article 20 of the Law).

The decision of the appeals board appealed by the plaintiff was issued on May 28, 2024, that is, after the conclusion of the Agreement, dated March 20, 2024. However, the Court of Appeal did not give a proper assessment of the defendant's actions in the context of the above-mentioned provisions of the Agreement and the provisions of the Law.

It should also be noted that the Agreement was ratified by the Law of the Republic of Kazakhstan dated October 30, 2024 No. 133-VIII SAM.

Taking into account the significant importance of the above circumstances, the judicial board considered it necessary to cancel the decision of the appellate instance appealed by the plaintiff and send the case to the court of appeal for a new hearing in a different composition of the court.

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