Anticompetitive agreements of market entities dealing with administrative cases related to violations of antimonopoly legislation
In this category of cases, it has been established that the most common disputes are related to raising, lowering or maintaining prices at auctions, distorting the results of auctions, auctions and tenders, including by dividing by lots (subclause 2, paragraph 1, Article 169 of the PC).
The analysis showed that the practice of proving cartel agreements by the antimonopoly authority, especially in public procurement, is limited only to the presence of indirect evidence that indicates the presence of signs of violations that restrict competition.
The antimonopoly authority often cites a similar pattern of behavior of participants in public procurement (using the same IP addresses, the time of submitting applications to the public procurement portal) as indirect evidence.
Thus, the following disputes on claims are presented as indicative cases: LLP, LLP (No. 6001-23-00-6ap/20(2)), RGKP and LLP (No. 6001-23-00 6ap/173), for which the courts satisfied the claims regarding the recognition of the illegal and cancellation of the order approving the investigation.
As part of the court's consideration of the claims, questions were raised about the need to prove certain circumstances when conducting investigations into cartel agreements provided for in subparagraph 2) paragraph 1 of Article 169 of the PC, namely, to prove the fact that market participants have reached (concluded) agreements, the existence of consequences in the form of bid distortions, and the causal relationship between specific actions of the parties to the agreements and negative consequences for competition.
At the same time, according to the claim of the LLP, SCAD VS LLP (No. 6001-23-00-6ap/1441) supported the decision of the appellate instance regarding the refusal to satisfy the claim for recognition as illegal and cancellation of the order approving the conclusion based on the results of the investigation of violations of legislation in the field of protection of competition on the following grounds.
By virtue of paragraph 3) of Article 218 of the Criminal Code, the period under review is determined by the antimonopoly authority independently and is indicated in the investigation order. The only legal requirement regarding the indication of the period under review is the need for the antimonopoly authority to comply with the five-year limitation period, calculated from the date of the violation, established by subparagraph 4) of Article 223 of the Criminal Code and part two of Article 62 of the Administrative Code of the Republic of Kazakhstan. At the time of the issuance of the orders for the investigation, the aforementioned limitation period had not been missed.
Regarding the need for a separate analysis of competition in the commodity market to impute violations established by paragraph 1 of Article 169 of the PC, it does not comply with the norms of substantive law, since the provisions of the PC do not contain such a mandatory requirement.
Indeed, paragraph 11 of Article 196 of the PC stipulates that in order to identify signs of anticompetitive agreements, an analysis of the state of competition in commodity markets is carried out, which does not include the stages provided for in subparagraphs 6) and 7) of paragraph 3 of Article 196 of the PC.
At the same time, in accordance with subparagraph 8) of paragraph 3 of Article 196 of the PC, conclusions based on the results of the analysis of competition in the commodity market are reflected in the conclusion.
There are no instructions on the need to approve a separate document called the "conclusion on the analysis of the state of competition in the commodity market" in the PC.
Accordingly, the conclusions of the analysis can be reflected in the conclusion of the investigation itself. In the framework of this claim, the SCAD of the Supreme Court indicated that when establishing the existence of a cartel agreement, it is necessary to determine the boundaries of the commodity market, whether the participants in the cartel agreement are competitors or potential competitors in the commodity market, and the availability of economic evidence.:
benefits or advantages received by the parties to the agreement during the implementation of such an agreement.
Since the peculiarity of a cartel agreement is that it is absolutely prohibited, since it is assumed that such an agreement is in any case dangerous for the state of competition.
In other words, it is enough for the antimonopoly authority to prove the very fact of reaching an anticompetitive agreement between the entities, the presence or absence of consequences of such a violation have no legal significance.
There was also no confirmation regarding the violation of the procedure for suspending and resuming the investigation and the time period for its conduct.
Since, in accordance with paragraph 4 of Article 218 of the Criminal Code, an investigation of violations of the legislation of the Republic of Kazakhstan in the field of competition protection is carried out within a period not exceeding three months from the date of issuing an order to investigate violations of the legislation of the Republic of Kazakhstan in the field of competition protection.
The investigation period may be extended by the antimonopoly authority, but not for more than two months. An order is issued to extend the deadline, and copies of the order are sent to the applicant and the subject of the investigation within three working days from the date of its publication.
Taking into account the antimonopoly authority's order to extend the investigation period and the decision to suspend the investigation, the investigation period actually did not exceed four months.
The reason for suspending the investigation was subparagraph 1) of paragraph 1 of Article 222 of the Criminal Code - consideration by the court of another case relevant to the investigation.
It should be noted that paragraph 2 of Article 156 of the Criminal Code establishes a list of gross violations of the requirements of the Code, leading to the recognition of the audit as invalid.
The absence of signatures of all officials in interim acts that were not sent to the subjects of the investigation was not considered a gross violation.
Regarding the incorrect determination by the antimonopoly authority of monopoly income for the period under review, it does not entail the cancellation of the resolution, since the amount of monopoly income is important for determining the amount of the fine in the framework of proceedings on an administrative offense. Consequently, the verification of the correctness of its determination falls within the competence of the body (court) authorized to consider such a case.
In this regard, the SCAD of the Supreme Court did not see any legal grounds for canceling or changing the resolution.
A similar case was filed by LLP (No. 6001-22-00-6ap/1160), in which the SCAD of the Supreme Court supported the decisions of the lower courts and reasonably concluded that the courts had reliably established that from November 27, 2020 to June 7, 2021, the antimonopoly authority conducted an investigation into violations of legislation in the field of competition protection in relation to LLP and LLP, during which it was established that contracts were concluded between the plaintiffs, under which the sale of medicines is carried out between them, the plaintiffs have the same employees., The plaintiffs' actions to obtain a bank guarantee were completed on the same day, and the plaintiffs' warehouses are located at the same address.
These circumstances indicate that there are horizontal agreements between the plaintiffs that are aimed at pricing, which is unfair competition.
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).
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