Requesting information within the framework of the activities of the antimonopoly authority when considering administrative cases related to violations of antimonopoly legislation

          According to subparagraph 21) of Article 90-6 of the PC, the antimonopoly authority requests and receives, in accordance with the procedure established by the laws of the Republic of Kazakhstan, from government agencies, including the authorized body in the field of state statistics, state revenue authorities, market entities, as well as officials and other individuals and legal entities, information necessary to exercise the powers provided for by this law. The Code, including information constituting commercial and other legally protected secrets, with the exception of banking secrecy, insurance secrets and commercial secrets on the securities market.

During the analysis of this category of cases, it was found that there are cases when the antimonopoly authority unreasonably requests certain information.

             The following cases are indicative of this category of disputes.

According to the JSC's claim (No. 6001-22-00-6ap/715), the local courts, refusing to satisfy the claims, referred to the existing competence of the antimonopoly authority in the performance of official duties, including when conducting analyses of the state of competition in commodity markets, to request and receive information from market participants that constitutes commercial, official and other information required by law. a protected secret.

The SCAD of the Supreme Court, overturning the decisions of the lower courts, reasonably concluded that requests for article-by-article cost calculations and copies of contracts for the supply of raw materials for production are illegal, since the request for this information does not correspond to the actions of the antimonopoly authority for the purposes of authority, which was a violation of subparagraph 21) of Article 90-6, subparagraph 2) of Article 90-7, sub-paragraphs 3) and 10) of Article 196 of the SC, as well as the norms of the Methodology for analyzing the competitive environment.

According to the claim of LLP (No. 7599-22-00-4a/1256), the court of first instance refused to satisfy the claims regarding the cancellation of the provision of information specified in the order. The court of appeal overturned the above-mentioned decision, as the antimonopoly authority exceeded the limits of administrative discretion on the following grounds.

According to subparagraph 1) of paragraph 1 of Article 226 of the Criminal Code, the antimonopoly authority has the right to give binding instructions to market entities on stopping violations of the norms of this Code and (or) eliminating its consequences.

According to subparagraph 3) of paragraph 1 of Article 224 of the PC, based on the results of an investigation into violations of legislation in the field of competition protection, an official of the antimonopoly authority prepares an opinion, on the basis of which the antimonopoly authority makes one of the following decisions, including an order to eliminate violations of the legislation of the Republic of Kazakhstan in the field of competition protection.

This article, which provides for 226 PCs, refers to Chapter 21, grounds for suppressing violations of the legislation of the Republic of Kazakhstan in the field of competition protection and reviewing the regulations of the antimonopoly authority.

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.

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

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 (APPK);

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).

President    

Republic of Kazakhstan     

© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan  

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