The practice of reviewing administrative cases related to violations of antimonopoly legislation
The cassation instance considered various categories of cases related to violations of antimonopoly legislation, including cases:
The cassation instance considered various categories of cases related to violations of antimonopoly legislation, including cases;
abuse of position;
dominant or monopolistic position;
on anticompetitive agreements of market entities;
on anticompetitive coordinated actions of market entities;
requesting information in the framework of the activities of the antimonopoly authority;
Notification of the presence in actions (inaction) of signs of violation of legislation in the field of protection of competition
In accordance with paragraph 1 of Article 199 of the PC, if there are signs of unfair competition, abuse of a dominant or monopoly position, with the exception of the signs specified in subparagraph 1) of Article 174 of this Code, anticompetitive coordinated actions of market entities, anticompetitive vertical agreements of market entities specified in paragraph 2 of Article 169 of this Code, as well as signs of anticompetitive actions (inaction), agreements of state and local executive bodies, organizations, The antimonopoly authority, which is endowed by the state with the functions of regulating the activities of market entities, sends a notification to the market entity, state, local executive bodies, organizations endowed by the state with the functions of regulating the activities of market entities on the presence in actions (inaction) of signs of violation of the legislation of the Republic of Kazakhstan in the field of competition protection without conducting an investigation.
At the same time, paragraph 2 of Article 199 of the PC stipulates that the antimonopoly authority decides to conduct an investigation if the organization entrusted by the state with the function of regulating the activities of market entities, state, local executive bodies, or market entities have not terminated the actions (inaction) specified in the notification within the time limits established by paragraph 2-1 of this article.
In some cases, the notices were cancelled and declared illegal, while in others similar lawsuits were dismissed.
For example, in three court disputes with the antimonopoly authority on the claims of JSC (No. 6001-23-00-6ap/227), LLP (No. 6001-22-00 6ap/2342(2)), JSC (No. 6001-23-00-6ap/227), the courts satisfied the claims regarding the cancellation and recognition of the unlawful notification. In turn, the SCAD of the Armed Forces canceled the above-mentioned decisions.
The case of the JSC's claim is indicative, in which the courts of the first and appellate instance, satisfying the claim, indicated that the notification could not be addressed to the Company, since it was not the subject of such violations.
The SCAD of the Supreme Court, overturning the decisions of the lower courts, reasonably concluded that the claim should have been returned, since it was not subject to consideration in administrative proceedings on the following grounds.
According to the second part of Article 102 of the CPC, the courts have jurisdiction in administrative proceedings over disputes arising from public law relations provided for by this Code. The APPC establishes clear concepts of an "administrative act" and an "administrative claim" (Part 1 of art.4).
An administrative act is the main external form of administrative activity of administrative bodies and officials. It is adopted by an administrative body in public law relations, has an authoritative character and is a unilateral decision of an administrative body endowed with authority, mandatory and enforced by state coercion, and is aimed primarily at the realization of subjective public rights and obligations, addressed to a specific person or an individually defined circle of people.
It follows from this definition that an administrative act must meet a number of criteria:
- to be an authoritative measure, that is, a conscious expression of will in the form of a decision, action (inaction), through which the public authority of an administrative body is exercised;
- must come from an administrative authority (within the meaning of subparagraph 7) of the first part of Article 4 of the APPC); - to have a regulatory effect, that is, to be a measure aimed at establishing, canceling or changing any legal relationship;
- be individually defined, have a specific addressee to whom the administrative act is sent;
- accepted in the field of public law. This is due to the fact that an organ or organization can act not only as an administrative entity, but also as an economic entity. Only those acts that have been adopted in the field of public law and have a public law character can be administrative;
- external orientation, that is, the legal impact of the act should be directly external when the addressee is a person located outside the administrative body.
Notification (contested document) By its legal nature, it is not a binding act, has no external influence, does not affect the interests of the plaintiff, does not entail legal consequences and is not binding, and as a result, cannot be an independent subject of judicial appeal.
notification (contested document) By its legal nature, it is not a binding act, has no external influence, does not affect the interests of the plaintiff, does not entail legal consequences and is not binding, and as a result, cannot be an independent subject of judicial appeal.
That is, even if there is an unfulfilled notification, the antimonopoly investigation, within the meaning of Article 216 of the Criminal Code, may not be initiated. This is due to the need for the administrative authority to have a certain degree of confidence at the time of resolving the issue of initiating an investigation, that the actions of the subjects show signs of a violation of the law, which indicates that the authority has administrative discretion in this matter.
In order to classify an act contested by the plaintiff as an administrative act, it must have an authoritative, regulatory effect and be binding under the threat of liability for its non-fulfillment.
However, the contested notification is not authoritative, is not enforced by State coercion, and is not directly aimed at exercising the plaintiff's public rights and obligations. Accordingly, there is no need to protect and restore violated or disputed rights, freedoms or legitimate interests in this situation. Its assessment can be given by the court as an administrative action within the completed administrative procedure or as administrative evidence in the case.
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 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 for 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).
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
