Bringing to administrative responsibility with the imposition of an administrative fine
By the resolution of the Aktobe City CAC dated February 10, 2017, which was left unchanged by the resolution of the Aktobe Regional Court dated March 9, 2017, IP "K" was brought to administrative responsibility under part 2 of Article 159 of the Administrative Code with the imposition of an administrative fine in the amount of 141,678 tenge and confiscation of monopoly income in the amount of 1,485,090 tenge. By the decision of the Supreme Court of November 16, 2017, the judicial acts were annulled with the termination of the proceedings in the absence of an administrative offense. As follows from the case file, IP "K" together with other market entities, whose combined share is 73.8%, agreed to set and maintain the retail price for liquefied petroleum gas at 44-45 tenge in the period from September 1, 2016 to November 14, 2016. The protocol was drawn up on January 9, 2017. Canceling judicial acts, the Supreme Court pointed out that the authorized body had not provided evidence indicating the coordinated actions of the subject. Thus, according to subparagraph 6) of paragraph 2 of Article 174 of the PC, the minimum share of one market entity in the relevant commodity market should be five percent or more.
Bringing to administrative responsibility with the imposition of an administrative fine
Calculations of the share of each market entity are not presented, and the share of IP "K" does not exceed two percent. Moreover, the court's qualification of the actions of IP "K" was unlawfully carried out within the framework of the provisions of paragraphs 1, 2 of Article 174 of the Criminal Code as amended before January 1, 2017, whereas the issue of bringing her to administrative responsibility in the case of an administrative offense was initiated after January 1, 2017. In order to recognize the actions of market entities as agreed upon in accordance with paragraph 2 of Article 174 of the PC, it is necessary to establish the entire set of conditions. Two criteria are used to classify business entities by category when imposing an administrative penalty.: 1) average annual number of employees and 2) average annual income. By the decision of the Aktobe City CAC dated December 15, 2016, which was left unchanged by the decision of the Judicial Board for Civil Cases of the Aktobe Regional Court dated January 20, 2016, LLP "R" was brought to administrative responsibility under part 2 of Article 159 of the Administrative Code and subjected to administrative penalties in the form of a fine of five percent of the income received as a result of monopolistic activity in the amount of 11,263,892 tenge to the state income, with confiscation of monopoly income received as a result of monopolistic activity. By a decree of the Supreme Court dated October 12, 2017, the judicial acts were annulled with the referral of the case for a new hearing in the Aktobe City CAS with a different composition of judges. The court of first instance found non-compliance with the prohibitions provided for in subparagraph 1) paragraph 1 of Article 170 of the PC. According to paragraph 1 of Article 170 of the CAC (as amended at the time of the decision of the CAC), coordinated actions of market entities engaged in the production or sale of goods aimed at restricting competition, including those related to the establishment and (or) maintenance of prices or other conditions for the purchase or sale of goods, are prohibited.
In accordance with paragraph 2 of Article 170 of the PC (as amended at the time of the decision of the CAC), the actions of market entities specified in paragraph 1 of this article may be recognized as coordinated if they collectively meet the following conditions:: 1) the result of such actions corresponds to the interests of each of the market participants; 2) the actions of market participants are known to each of them in advance; 3) the actions of each of these market entities are caused by the actions of other market entities participating in coordinated actions, and are not the result of circumstances equally affecting these market entities; 4) the total share of market entities participating in them in the relevant commodity market is thirty-five percent or more. Thus, in order to recognize the actions of market participants as coordinated, it is necessary to establish the entire set of conditions. By canceling judicial acts of local courts, the Supreme Court found that the authorized body had not provided evidence during the consideration of the case that the cumulative share of market participants in the relevant commodity market was thirty-five percent or more, and the courts had not fixed this issue as the subject of research and evaluation. Thus, the issue of committing an administrative offense has not been clarified by the court. According to part 1 of Article 55 of the Administrative Code, an administrative penalty for an administrative offense is imposed within the limits provided for in the article of the Special Part of this section for this administrative offense, in strict accordance with the provisions of this Code. The sanction of part 2 of Article 159 of the Administrative Code provides for the collection of an administrative fine depending on the category of the business entity. When imposing an administrative penalty, the courts should determine the category of the business entity and the amount of income (revenue) received as a result of monopolistic activities. In accordance with paragraph 1 of Article 24 of the PC, depending on the average annual number of employees and the average annual income, business entities belong to the following categories: small business entities, including microenterprises, medium-sized businesses, and large businesses. The Business Code also defines the goals for which the gradation of business entities by category is used.
At the same time, for the purposes of state statistics, only the criterion of the average annual number of employees is used, whereas for the application of other legal norms, which include the imposition of administrative penalties, two criteria are used.: 1) average annual number of employees and 2) average annual income. Resolution of the Government of the Republic of Kazakhstan dated December 28, 2015 No. 1091 approved the "Rules for Maintaining and Using the Register of Business Entities" (hereinafter referred to as the Rules). According to paragraph 3 of the Rules, the category of business entities is determined in accordance with the criteria and their thresholds specified in article 24 of the Code, as well as the rules for calculating the average annual number of employees and the average annual income of business entities, approved by the Government of the Republic of Kazakhstan. Initially, the register is formed by the authorized business body. In accordance with paragraph 16 of the Rules, the register is the main source of data on the category of business entities for any interested parties, including government agencies. When calculating the amount of the fine, the court classified Ramadan LLP as a large business entity. When determining the category of a subject, the courts used the data of statistical bodies, for which only the number of employees is of legal importance, the information of these bodies cannot be used by the courts when imposing an administrative penalty.
Bringing to administrative responsibility with the imposition of an administrative fine
Consequently, the courts made a mistake in applying the legislation governing the imposition of administrative penalties. Upon a new review, by a resolution of the Aktobe City CAC dated December 12, 2017, the proceedings were terminated due to the absence of an administrative offense in the actions of LLP "R". Courts should keep in mind that the provisions of article 24 of the PC regulate the following issues: 1) categories of business entities; 2) criteria that are the basis for their differentiation; 3) for what purposes gradation is used. When bringing to administrative responsibility, the assignment of a subject to a particular category is carried out taking into account the purpose of applying other norms of the legislation of the Republic of Kazakhstan. When deciding whether to classify an offender into a particular category of entities, along with the criteria specified in paragraph 3 of Article 24 of the PC, the provisions of paragraph 4 of Article 24 of the PC, which contains exceptions to the general rule for determining a small business entity engaged in a specific type of activity, including production and (or) wholesale, are of legal importance. excisable products.
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