Administrative Cases Related to Violations of Antimonopoly Legislation
Pursuant to subparagraph 21) of Article 90-6 of the Entrepreneurial Code of the Republic of Kazakhstan (EC), the antimonopoly authority shall, in accordance with the procedure established by the laws of the Republic of Kazakhstan, request and obtain from state bodies, 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 for exercising the powers provided for by this Code, including information constituting commercial and other legally protected secrets, except for banking secrecy, insurance secrecy, and commercial secrecy in the securities market.
An analysis of this category of cases has established that there are instances where the antimonopoly authority requests certain information without sufficient grounds.
The following cases are illustrative of this category of disputes.
In the claim filed by JSC (No. 6001-22-00-6ап/715), the lower courts, dismissing the claims, referred to the competence of the antimonopoly authority, in the performance of its official duties, including when conducting analyses of the state of competition in commodity markets, to request and obtain from market entities information constituting commercial, official, and other legally protected secrets.
The Judicial Collegium for Administrative Cases of the Supreme Court of the Republic of Kazakhstan (JCAC SC), overturning the decisions of the lower courts, reasonably concluded that requests for itemized cost calculations and copies of contracts for the supply of raw materials (materials) for production were unlawful, since requesting such information was not consistent with the purposes of the powers exercised by the antimonopoly authority. This constituted a violation of subparagraph 21) of Article 90-6, subparagraph 2) of Article 90-7, subparagraphs 3) and 10) of Article 196 of the EC, as well as the provisions of the Methodology for Analyzing the Competitive Environment.
In the claim filed by LLP (No. 7599-22-00-4а/1256), the court of first instance dismissed the claim insofar as it sought to annul the requirement to provide the information specified in the order. The appellate court overturned the above decision on the grounds that the antimonopoly authority had exceeded the limits of administrative discretion for the following reasons.
Pursuant to subparagraph 1) of paragraph 1 of Article 226 of the EC, the antimonopoly authority has the right to issue market entities with orders that are mandatory for compliance, requiring them to cease violations of the provisions of this Code and/or eliminate their consequences.
Pursuant to subparagraph 3) of paragraph 1 of Article 224 of the EC, following an investigation into violations of legislation in the field of competition protection, an official of the antimonopoly authority shall prepare a conclusion, on the basis of which the antimonopoly authority shall adopt one of the following decisions, including a decision to issue an order to eliminate violations of the legislation of the Republic of Kazakhstan in the field of competition protection.
The aforementioned Article 226 of the EC falls within Chapter 21, which provides for the grounds for suppressing violations of the legislation of the Republic of Kazakhstan in the field of competition protection and reviewing orders issued by the antimonopoly authority.
REGULATORY SOURCES AND ABBREVIATIONS
The principal regulatory legal acts that courts should be guided by when considering cases involving the application of antimonopoly legislation are:
- The Constitution of the Republic of Kazakhstan dated 30 August 1995;
- The Entrepreneurial Code of the Republic of Kazakhstan dated 29 October 2015 (EC);
- The Administrative Procedural and Process-Related Code of the Republic of Kazakhstan dated 29 June 2020 No. 350-VI (APPC);
- The Code of the Republic of Kazakhstan “On Administrative Offences” dated 5 July 2014 No. 235-V ZRK (CAO);
- The Law of the Republic of Kazakhstan “On Natural Monopolies” dated 27 December 2018 No. 204-VІ ZRK (Law);
- The Judicial Collegium for Administrative Cases of the Supreme Court of the Republic of Kazakhstan (JCAC SC);
- The Agency for Protection and Development of Competition of the Republic of Kazakhstan and its territorial bodies (antimonopoly authority);
- 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 the regulation of natural monopolies).
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