Appeal of the act on the results of an unscheduled inspection

 

No.6001-22-00-6ap/2507 dated 04.04.2023

Plaintiff: JSC "K" (hereinafter - the Company)

Respondent: Russian State Institution "Department of the Committee for Regulation of Natural Monopolies of the Ministry of National Economy of the Republic of Kazakhstan"

The subject of the dispute: on the appeal of the act on the results of an unscheduled inspection dated 04/13/2022

Review of the plaintiff's cassation appeal

PLOT:

According to the results of the audit, the actions of the Communist Party of the Russian Federation revealed a violation in terms of non-compliance with the Standard Form of technical conditions, namely: the following information is missing from the issued technical conditions - the address, telephone and e-mail of the consumer, the total heated area of the premises (household consumers), the gas pressure in the connection point. Based on the results of the audit, the contested act was drawn up.

On 04/13/2022, the Department initiated administrative proceedings against the natural monopoly entity of the Communist Party of the Russian Federation based on the fourth article 164 of the Administrative Offenses Code of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code).

The plaintiff motivates the illegality of the adoption of the act, since, in accordance with paragraph 4 of Article 12 of the Law of the Republic of Kazakhstan "On Gas and Gas Supply", the technical conditions for connection to the main gas pipeline, gas distribution system or group tank installation are issued by the gas transportation and gas distribution organization operating such an object or the owner of the group tank installation. At the same time, the issued technical specifications are the basis for the design of newly built, modernized and (or) reconstructed facilities of gas supply systems. The technical conditions must contain all the necessary conditions for the implementation of the design. In addition, all of the plaintiff's violations are insignificant (omitting the contacts, area, and pressure in the pipes).

On 05/19/2022, the administrative case was sent to the Specialized Administrative Offences Court of the city for consideration, which was suspended by the court until the resolution of the present dispute.

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision remains unchanged.

Cassation: judicial acts are cancelled, the claim is returned.

Conclusions:

In accordance with subparagraph 4) The administrative act of the first part of Article 4 of the APP is a decision taken by an administrative body, an official in public law relations, exercising the rights and obligations of a certain person or an individually defined circle of persons established by the laws of the Republic of Kazakhstan.

An onerous administrative act is an act that refuses to implement, restricts, terminates, or imposes an obligation on a participant in an administrative procedure, as well as otherwise worsens his situation (subparagraph 4) of part one of Article 4 of the APPC).

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 seventh part of Article 3 of the CPC establishes that cases, the procedure for which is provided for by the legislation of the Republic of Kazakhstanob administrative offenses, are not subject to review in the order of administrative proceedings.

 

 

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