On the recognition of illegal actions to submit a submission to the Prosecutor's Office of the Agency for Protection and Development of Competition

No.6001-23-00-6ap/587 dated 1.08.2023

Plaintiffs: AF LLP, S LLP

Defendants: Regional Prosecutor's Office, District Prosecutor's Office, RSU "Department of the Agency for Protection and Development of Competition of the Republic of Kazakhstan region"

The subject of the dispute: on the recognition of illegal actions to make a submission dated February 28, 2022 regarding AF LLP and the cancellation of the submission, to conduct an investigation against AF LLP and S LLP and draw up an opinion dated February 3, 2022, to conduct an investigation against AF LLP and draw up an opinion dated February 21, 2022, the Prosecutor's Office for conducting inspections, declaring illegal the conclusions of the Department dated February 3, 2022 and the certificate dated February 21, 2022.

Review of the plaintiff's cassation appeal.

Judicial acts:

1st instance: the claim regarding the requirements to declare illegal the actions of the prosecutor's office to conduct inspections, to declare illegal the conclusions of the Department dated February 3, 2022 and the certificate dated February 21, 2022 returned.

The rest of the decision partially satisfied the claim.

Appeal: the court ruling is upheld, the court's decision is overturned, and the claim is returned.

Cassation: court rulings and the appeal ruling are upheld.

Conclusions: By overturning the decision of the court of first instance and returning the claims, the appeals board came to the correct conclusion that the requirements for declaring illegal the actions of the prosecutor's office to make a submission dated February 28, 2022, the actions of the Department to conduct an investigation and draw up an opinion dated February 3, 2022 and a certificate of audit results dated February 21, 2022 In relation to AF LLP, Invadam LLP is not subject to consideration in administrative proceedings.

In turn, the certificate and conclusion disputed by the plaintiff are not administrative acts adopted in public relations, do not impose any obligations on the plaintiff; they are interim acts preceding the issuance of an order to conduct an investigation into violations of the legislation of the Republic of Kazakhstan in the field of competition protection.

Accordingly, an administrative act subject to appeal in the framework of an investigation in the field of competition protection is an order, without which the conclusion has no legal consequences in accordance with article 224 of the Business Code.

It was established that, based on the certificate and conclusion dated February 3 and 21, 2022, the Prosecutor's Office of the Kyzylorda region submitted to the Department a submission dated February 28, 2022 on the consideration of bringing the Partnership and a number of business entities to administrative responsibility under part two of Article 159 of the Code of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code).

"On administrative offenses" According to paragraph 2 of Article 27 of the Law of the Republic of Kazakhstan "On the Prosecutor's Office", the contested representation of the Prosecutor's Office is not mandatory, it is subject to consideration by the Department with the participation of representatives of the Prosecutor's Office and the provision of a response within 30 days.

By virtue of the requirements of paragraph 2) of the seventh part of Article 3 of the CPC, cases of violations are not subject to consideration. the procedure of the Republic of Kazakhstan, which provides for administrative proceedings On the basis of the above, the conclusions of the inspectors on the presence of signs of anticompetitive concerted actions in the actions of the Partnership are the subject of verification when the court considers the case of an administrative offense.

The plaintiff's arguments about the absence of grounds and grounds for initiating an administrative offense case under Article 802 of the Administrative Code are also subject to review by the court as part of the consideration of an administrative offense case.

 

 

 

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