Appeal of acts of inspection results and instructions on elimination of violations of the legislation of the Republic of Kazakhstan

             In accordance with paragraph 1 of Article 30 of the Law, the Authorized body in the field of regulation of natural monopolies exercises state control in the field of natural monopolies in accordance with the PC.

When exercising state control in the areas of natural monopolies, the authorized body issues an order to eliminate violations of the legislation on natural monopolies.

In general, the cassation instance considered 22 disputes in this category of cases. Illustrative cases in this category of disputes are: according to the claim of JSC (No. 6001-22-00-6ap/2507, No. 6001-22-00-6ap/2652).

The local courts, rejecting the claim, concluded that the act on the results of the audit was adopted within the powers of the territorial authority for regulating natural monopolies in accordance with current legislation, and there are no legal grounds for its cancellation.

The SCUD of the Supreme Court reasonably canceled and returned the claim due to the fact that the inspection act does not have legal consequences, since according to Article 156 of the PC, this inspection should have ended with an administrative act.

There is no such act in this case. According to the claim of JSC (No. 6001-23-00-6ap/1624), local courts, satisfying the requirements for the cancellation of the order, concluded that the plaintiff complied with the Standard Form of technical specifications, but at the same time supplemented with the section "Draft to provide", also the territorial authority for the regulation of natural monopolies did not analyze the technical requirements provided for in Article 81 of the PC, and in addition to the act on the results of the audit, no other document confirming the existence of signs of violation of the law was presented to the court.

SCAD VS, canceling the decisions, established that the standard form of technical specifications contains an exhaustive list of requirements for connecting consumers to the gas supply sector, established by the developers' body.

Return of administrative cases.

Refunds fall on subparagraph 6) of the second part of Article 138 of the APPC "the plaintiff withdrew the claim" - as well as on subparagraph 11) of the second part of Article 138 of the APPC "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 procedure for pre-trial settlement of the dispute 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 not within 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 APPC is associated with 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 a 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 in relation to the other of their powers.

It should be noted that, in accordance with part 5 of Article 138 of the APPC, failure to provide a written response, a reasoned position is the basis for the application of a monetary penalty and does not prevent the consideration of an administrative case on the 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 Entrepreneurial 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 (APPC);

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

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

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

7) The Agency for the 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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