Comment to article 159. Monopolistic activity The Code of the Republic of Kazakhstan on Administrative Offences

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1. Anticompetitive agreements of market entities prohibited by the Business Code of the Republic of Kazakhstan, if these actions do not contain signs of a criminal offense, -

A fine of three per cent is imposed on small or medium-sized businesses or non-profit organizations, and five per cent on large businesses of the income (revenue) received as a result of monopolistic activities, with confiscation of the monopoly income received as a result of monopolistic activities for no more than one year.

2. Anticompetitive coordinated actions of market entities prohibited by the Business Code of the Republic of Kazakhstan, if these actions do not contain signs of a criminally punishable act, -

3. Abuse by market entities of their dominant or monopolistic position by establishing, maintaining monopolistically high (low) or monopsonally low prices, prohibited by the Business Code of the Republic of Kazakhstan, if these actions do not contain signs of a criminally punishable act, -

3-1. Abuses by market entities of their dominant or monopolistic position, with the exception of establishing and maintaining monopolistically high (low) or monopsonally low prices, prohibited by the Business Code of the Republic of Kazakhstan, if these actions do not contain signs of a criminally punishable act., -

They impose a fine on small or medium-sized businesses or non-profit organizations in the amount of three, and on large businesses in the amount of five percent of the income (revenue) received as a result of monopolistic activities.

4. The actions provided for in parts one, two, three and 3-1 of this Article, committed repeatedly within a year after the imposition of an administrative penalty, -

A fine of five per cent is imposed on small or medium-sized businesses or non-profit organizations, and ten per cent on large businesses of income (revenue) received as a result of monopolistic activities, with confiscation of monopoly income received as a result of monopolistic activities for no more than one year.

5. Coordination by individuals and (or) legal entities of the economic activities of market entities, capable of leading, leading or leading to any form of anticompetitive agreements of market entities prohibited by the Business Code of the Republic of Kazakhstan, -

entails a fine for individuals in the amount of one hundred and fifty, for small businesses or non-profit organizations - in the amount of three hundred and fifty, for medium-sized businesses - in the amount of five hundred, for large businesses - in the amount of one thousand monthly calculation indices.

6. The action provided for in part five of this article, committed repeatedly within a year after the imposition of an administrative penalty, -

entails a fine for individuals in the amount of two hundred, for small businesses or non-profit organizations - in the amount of three hundred and fifty, for medium-sized businesses - in the amount of seven hundred, for large businesses - in the amount of one thousand five hundred monthly calculation indices.

Note.

A market entity that has committed an administrative offense in the form of an anticompetitive agreement or anticompetitive concerted actions is exempt from administrative liability if the following conditions are met::

1) by the time a market entity informs the antimonopoly authority about anticompetitive agreements or anticompetitive concerted actions, the antimonopoly authority has not received information about these anticompetitive agreements or anticompetitive concerted actions from other sources;

2) a market entity takes urgent measures to terminate its participation in anticompetitive agreements or anticompetitive concerted actions;

3) the market entity provides full information on the facts of anticompetitive agreements or anticompetitive concerted actions throughout the investigation from the moment of the application.;

4) a market entity voluntarily compensates consumers for damage caused as a result of anticompetitive agreements or anticompetitive concerted actions.

The commented article establishes administrative responsibility for monopolistic activities.

Monopolistic activity, according to paragraph 1 of Article 167 of the PC RK, is the activity of market entities whose position makes it possible to control the relevant commodity market, including allowing them to exert significant influence on the general conditions of circulation of goods in the relevant commodity market.

Monopolistic activities limited by the Business Code of the Republic of Kazakhstan include: 1) anticompetitive agreements of market entities; 2) anticompetitive concerted actions of market entities; 3) abuse of a dominant or monopolistic position.

Each of the above-mentioned types of monopolistic activity forms independent structures of administrative offenses provided for in parts 1, 2, 3 and 3-1 of the commented article.

The offender is brought to administrative responsibility under parts 1, 2, 3, 3-1 and 4 of the commented article only if there are no signs of relevant criminally punishable acts in the offender's actions. Otherwise, offenders - individuals or officials of a legal entity - are subject to criminal liability for committing criminal offenses in carrying out monopolistic activities in accordance with the norms of the Criminal Code. In this regard, the initially illegal act of a person engaged in monopolistic activities should be checked by law enforcement agencies for the presence or absence of signs of a criminal offense and grounds for bringing the perpetrator to criminal responsibility.

The generic object of offenses provided for in Article 159 of the Administrative Code is the procedure established in the legislation of the Republic of Kazakhstan and protected by the state for conducting business in the Republic of Kazakhstan.

The direct object of the offenses provided for in Article 159 of the Administrative Code is the procedure established by the legislation of the Republic of Kazakhstan for conducting business in compliance with the principle of fair competition and the prohibition of monopolistic activities in a competitive environment.

The subjects of the offense provided for in Article 159 of the Administrative Code are individuals and legal entities that have violated the legislative ban on monopolistic activities in the Republic of Kazakhstan.

The subjective side of the unlawful acts provided for in Article 159 of the Administrative Code for individual offenders is characterized by guilt in the form of intent. The guilt of a person is revealed by his mental attitude towards the illegal acts committed by him and their harmful consequences.

The subjective side of offenses, the subjects of which are legal entities, is not subject to determination due to the existence of a legal requirement to establish guilt as a condition for bringing to administrative responsibility, only in relation to individuals. According to the legislation of the Republic of Kazakhstan on administrative responsibility, legal entities are administratively liable for the mere fact that they have committed an illegal act or omission, for which administrative liability is provided for in the Administrative Code, without taking into account the guilt of the officials of the legal entity who committed this act.

The administrative offences provided for in Parts 1, 2, 3, 3-1 and 4 of Article 159 of the Administrative Code are material. To bring to administrative responsibility for their commission, it is necessary to establish the fact that the offender has caused material damage. By virtue of the direct indication in the sanctions of the commented article, fines imposed on offenders should be calculated from the amount of monopoly income extracted in connection with the implementation of monopolistic activities. In this regard, the amount of monopoly income from monopolistic activities is subject to mandatory determination when bringing the offender to administrative responsibility under the commented article. Accordingly, without establishing the fact of obtaining monopoly income from monopolistic activities and its size, a person cannot be brought to administrative responsibility under parts 1, 2, 3, 3-1 and 4 of the commented article.

Officials of the antimonopoly authority have the right to draw up protocols on administrative offenses provided for in the commented article.

Part 1 of the commented article establishes administrative responsibility for the conclusion by a market entity of anticompetitive agreements prohibited by the PC of the Republic of Kazakhstan, which entailed obtaining a monopoly income from it.

The objective side of the offense provided for in the commented article is characterized by the commission of illegal actions by a person who is a market entity, expressed in the conclusion in written or oral form of anticompetitive agreements prohibited by the Business Code of the Republic of Kazakhstan, involving the receipt of monopoly income (revenue) from this for the entire duration of the anticompetitive agreements.

The concept and types of anticompetitive agreements are defined in the PC RK. Anticompetitive agreements are divided into horizontal and vertical ones.

Horizontal anticompetitive agreements (cartels) are a type of anticompetitive agreements between market entities that are competitors (market entities selling or purchasing goods on the same commodity market). In turn, a competitor is a market entity that is in a state of competition with other entities of the relevant market due to the fact that it produces and (or) sells goods on the relevant commodity market that are similar or interchangeable with the goods of market entities. Accordingly, a potential competitor is a market entity that has the ability (owns equipment, technologies) to produce and (or) sell goods that are similar or interchangeable with a competitor's product, but does not produce or sell it on the relevant product market.

Vertical anticompetitive agreements are a type of anticompetitive agreements between non–controlling market entities, one of which purchases a product, and the other provides the product or is its potential seller (supplier).

According to the imperative requirement of the norm of clause 1 of Article 169 of the PC RK, horizontal agreements between market entities are prohibited if such agreements lead or may lead to: 1) setting or maintaining prices (tariffs), discounts, surcharges (surcharges) and (or) margins; 2) raising, lowering or maintaining prices at auctions, distortion of the results of auctions, auctions and tenders, including by dividing by lots (including agreements between market entities belonging to the same group of persons); 3) division of the commodity market according to the territorial principle, the volume of sale or purchase of goods, the range of goods sold or the composition of sellers or buyers (customers); 4) reduction or cessation of production of goods; 5) refusal to conclude contracts with certain sellers or buyers (customers).

At the request of paragraph 2 of Article 169 of the PC RK, vertical agreements between market entities are prohibited if: 1) such agreements lead or may lead to the establishment of the resale price of the goods, except for the case when the seller sets for the buyer (customer) the maximum resale price of the goods; 2) such an agreement provides for the obligation of the buyer (customer) not to sell the goods to a market entity that is a competitor of the seller. Such a prohibition does not apply to agreements on the organization by the buyer of the sale of goods under a trademark or other means of individualization of the seller or manufacturer; 3) such an agreement provides for the obligation of the seller not to sell the goods to a market entity that is a competitor of the buyer (customer).

Also, at the request of paragraph 3 of Article 169 of the PC RK, agreements reached in any form in whole or in part between market entities that lead or may lead to restriction of competition are prohibited and invalidated, including regarding: 1) establishing or maintaining discriminatory conditions for equivalent contracts with other market entities, including the establishment of agreed terms for the purchase and (or) sale of goods; 2) economically, technologically and otherwise unjustifiably setting different prices (tariffs) for the same product by market entities; 3) unjustified restriction or termination of the sale of goods; 4) conclusion of contracts provided that the counterparties accept additional obligations that, in their content or in accordance with business practices, do not relate to the subject of these contracts (unreasonable demands for the transfer of financial resources and other property, property or non-property rights); 5) restrictions on access to the commodity market or the elimination of other market participants as sellers (suppliers) of certain goods or their buyers.

The conclusion of anticompetitive agreements by market participants in violation of the prohibitions established in the PK PK is recognized as an administrative offense under Part 1 of the commented article and entails administrative liability in accordance with it.

The offense provided for in Part 1 of the commented article is considered to have been committed at the moment when a person, after concluding anticompetitive agreements prohibited by the PK of the Republic of Kazakhstan, received the first monopoly income (revenue) from monopolistic activities.

For committing an offense under Part 1 of Article 159 of the Administrative Code, the offender is punished by a fine with mandatory confiscation of income (proceeds) received as a result of monopolistic activities.

The amount of the fine for committing an offense under Part 1 of Article 159 of the Administrative Code is differentiated depending on the legal status of the offender, and if the offender is a business entity, it also depends on which category of business entities he belongs to. In this regard, the body bringing the offender to administrative responsibility must first establish the legal status of this person and the category of entrepreneurship to which he belongs before bringing a person to justice.

Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:

- for small or medium–sized businesses or non-profit organizations - 3 percent of the income (revenue) received as a result of monopolistic activities,

- for large business entities – 5 percent of the income (revenue) received as a result of monopolistic activities.

The penalty rates are fixed and are not subject to change by the body imposing them.

Also, as an additional punishment for the commission of an offense provided for in Part 1 of the commented article, its sanction provides for the confiscation of monopoly income received as a result of monopolistic activities for no more than one year.

The period of time for which the monopoly income to be confiscated is calculated is determined at the discretion of the court, depending on the circumstances of the case under consideration, but such a period of time should not exceed one year.

An administrative penalty under Part 1 of the commented article, by virtue of a direct indication of this in the Code of Administrative Offenses, is imposed on the offender only by the court, since the case of an administrative offense, for which the law provides for a sanction in the form of confiscation, must be considered in court.

According to the note to the commented article, a market entity that has committed administrative offenses provided for in Parts 1 and 2 of the commented article (in the form of an anticompetitive agreement or anticompetitive concerted actions) is exempt from administrative liability if the following conditions are collectively met:

2) a market entity takes urgent measures to terminate its participation in anticompetitive agreements or anticompetitive concerted actions;

3) the market entity provides full information on the facts of anticompetitive agreements or anticompetitive concerted actions throughout the investigation from the moment of the application.;

4) a market entity voluntarily compensates consumers for damage caused as a result of anticompetitive agreements or anticompetitive concerted actions.

Part 2 of the commented article establishes administrative liability for anticompetitive coordinated actions of market entities prohibited by the Business Code of the Republic of Kazakhstan, if these actions do not contain signs of a criminal offense.

The objective side of the offense provided for in Part 2 of the commented article is characterized by the commission by a market entity of anticompetitive coordinated actions prohibited by the Business Code of the Republic of Kazakhstan, involving the receipt of monopoly income (revenue) from this.

The concept and types of anticompetitive concerted actions are defined in the PC RK.

According to the imperative norm of paragraph 1 of Article 170 of the PK CC, coordinated actions of market entities engaged in the production and sale of goods aimed at restricting competition are prohibited, including those related to: 1) setting and (or) maintaining prices or other conditions for the purchase or sale of goods; 2) unjustifiably restricting the production or sale of goods; 3) unjustifiably refusing to conclude contracts with certain sellers (suppliers) or buyers; 4) applying discriminatory conditions to equivalent contracts with other entities.

For committing an offense under Part 2 of Article 159 of the Administrative Code, the offender is punished by a fine with mandatory confiscation of income (proceeds) received as a result of monopolistic activities.

The amount of the fine for committing an offense provided for in Part 2 of Article 159 of the Administrative Code is differentiated depending on the legal status of the offender, and if the offender is a business entity, it also depends on which category of business entities he belongs to. In this regard, the body bringing the offender to administrative responsibility must first establish the legal status of this person and the category of entrepreneurship to which he belongs before bringing a person to justice.

Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:

- for small or medium–sized businesses or non-profit organizations - 3 percent of the income (revenue) received as a result of monopolistic activities,

- for large business entities – 5 percent of the income (revenue) received as a result of monopolistic activities.

The penalty rates are fixed and are not subject to change by the body imposing them.

Also, as an additional punishment for the commission of an offense provided for in Part 2 of the commented article, its sanction provides for the confiscation of monopoly income received as a result of monopolistic activities for no more than one year.

An administrative penalty under Part 2 of the commented article, by virtue of a direct indication of this in the Code of Administrative Offenses, is imposed on the offender only by the court, since the case of an administrative offense, for which the law provides for a sanction in the form of confiscation, must be considered in court.

Part 3 of the commented article establishes administrative liability for abuse by market entities of their dominant or monopolistic position by setting or maintaining monopolistically high (low) or monopsonally low prices, prohibited by the Business Code of the Republic of Kazakhstan, if these actions do not contain signs of a criminal offense.

The objective side of the offense provided for in Part 3 of the commented article is characterized by the commission by a person who is a market participant of illegal actions, which are expressed in the abuse of his dominant or monopolistic position prohibited by the PK by establishing and maintaining monopolistically high (low) or monopsonally low prices.

The concept of dominant, monopolistic and monopsonal position is defined in the PC RK.

A dominant or monopolistic position, according to paragraph 1 of Article 172 of the PC RK, is the position of a market entity or several market entities in the relevant commodity market, which gives the market entity or several market entities the opportunity to control the relevant commodity market, including having a significant impact on the general conditions of circulation of goods.

A monopoly position, according to paragraph 7 of Article 172 of the PC RK, is also recognized as the position of subjects of a natural monopoly, a state monopoly, as well as market entities that occupy a one hundred percent share of dominance in the relevant commodity market (subjects occupying a monopoly position).

A monopsonal position, according to paragraph 1 of Article 176 of the PK CC, is the position of a market entity that occupies a dominant or monopolistic position as a buyer, whose share in the relevant commodity market is seventy percent or more.

A monopolistically high price of a product, according to paragraph 1 of Article 175 of the PC RK, is the price set by a market entity occupying a dominant or monopolistic position if: 1) this price exceeds the maximum price that is set in the same commodity market in a competitive environment by a market entity that is not part of the same group of persons as the dominant market entity, or exceeds the price in a comparable commodity market that was formed in a competitive environment; 2) this price exceeds the amount necessary for production and the sale of such goods costs and profits.

A monopolistically low price of a product, according to paragraph 5 of Article 175 of the PK PK, is the price set by a market entity occupying a dominant or monopolistic position if: 1) this price is lower than the price set in the same commodity market by a market entity that is not part of the same group of persons as the market entity that occupies a dominant position; 2) this price is lower than the amount of actual costs for the production and sale of such goods.

The monopolistically high (low) price of a product established for a market entity in accordance with the laws of the Republic of Kazakhstan is not recognized.

A monopsonally low price of a product, according to paragraph 2 of Article 176 of the PC RK, is the price of a product at which a market entity occupying a monopsonal position purchases a product if: 1) this price allows a market entity in a monopsonal position to receive additional income by reducing the cost of production and (or) sale at the expense of market entities selling goods to it; 2) this price is lower than the amount required by the market entity selling the goods, the cost of production and sale of such goods and profits.

For committing an offense under Part 3 of Article 159 of the Administrative Code, the offender is punished by a fine with mandatory confiscation of income (proceeds) received as a result of monopolistic activities.

The amount of the fine for committing an offense under Part 3 of Article 159 of the Administrative Code is differentiated depending on the legal status of the offender, and if the offender is a business entity, it also depends on which category of business entities he belongs to. In this regard, the body bringing the offender to administrative responsibility must first establish the legal status of this person and the category of entrepreneurship to which he belongs before bringing a person to justice.

Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:

- for small or medium–sized businesses or non-profit organizations - 3 percent of the income (revenue) received as a result of monopolistic activities,

- for large business entities – 5 percent of the income (revenue) received as a result of monopolistic activities.

The penalty rates are fixed and are not subject to change by the body imposing them.

Also, as an additional punishment for the commission of an offense provided for in Part 3 of the commented article, its sanction provides for the confiscation of monopoly income received as a result of monopolistic activities for a period of no more than one year.

An administrative penalty under Part 3 of the commented article, by virtue of a direct indication of this in the Code of Administrative Offenses, is imposed on the offender only by the court, since the case of an administrative offense, for which the law provides for a sanction in the form of confiscation, must be considered in court.

Part 3-1 was included in the commented article in accordance with the Law of the Republic of Kazakhstan dated May 24, 2018 No. 156-VI to establish administrative responsibility for other abuses by market participants of their dominant or monopolistic position (except for the establishment, maintenance of monopolistically high (low) or monopsonally low prices, responsibility for which is established in Part 3 of the commented article) prohibited by the Business Code of the Republic of Kazakhstan, if these actions do not contain signs of a criminal offense.

The objective side of the offense provided for in Part 3-1 of the commented article is characterized by the commission by a person who is a market entity of illegal actions, expressed in other abuses of his dominant or monopolistic position prohibited by the PC of the Republic of Kazakhstan, with the exception of establishing and maintaining monopolistically high (low) or monopsonally low prices.

Under other abuses of a dominant or monopolistic position in the market prohibited by the PC of the Republic of Kazakhstan, according to art. 174 of the PC RK, refers to the actions (inaction) of market entities occupying a dominant or monopolistic position that have led or are leading to restriction of access to the relevant commodity market, prevention, restriction and elimination of competition and (or) infringe on the legitimate rights of a market entity or an indefinite circle of consumers, including such actions as: 1) the application of different prices or different conditions to equivalent agreements with market participants or consumers without objectively justified reasons, except in the following cases:, when the use of different prices is due to different costs for the production, sale and delivery of goods, non-discriminatory use of a discount system that takes into account sales volumes, payment terms, and the duration of the contract; 2) the establishment of restrictions on the resale of goods purchased from him on a territorial basis, the circle of buyers, the terms of purchase, as well as quantity, price; 3) conditioning or imposing the conclusion of an agreement by accepting additional obligations by a market entity or consumer that, in their content or according to business practices, do not relate to the subject of these agreements; 4) unjustified refusal to conclude a contract or sell goods with individual buyers if, at the time of application, the possibility of producing or selling the relevant goods or evasion, expressed in failure to provide a response to the proposal to conclude such an agreement within a period exceeding thirty calendar days. In this case, refusal or evasion is considered justified if, at the time of the buyer's request, there is no required volume of goods being produced or sold, including in connection with the conclusion of contracts for the sale of the relevant goods; 5) conditioning the supply of goods by accepting restrictions on the purchase of goods produced or sold by competitors.; 6) unjustified reduction in production and (or) supply, or termination of production and (or) supply of goods for which there is demand or orders from consumers, market participants, if production or supply is possible; 7) withdrawal of goods from circulation if such withdrawal resulted in an increase in the price of the goods; 8) imposing economic or technologically unjustified terms of the contract that are not related to the subject of the contract; 9) creating obstacles to access to the commodity market or exit from the commodity market to other market entities; 10) economically, technologically or otherwise unjustifiably setting different prices (tariffs) for the same product, creating discriminatory conditions.

For committing an offense under Part 3-1 of Article 159 of the Administrative Code, the offender is punished by a fine with mandatory confiscation of income (proceeds) received as a result of monopolistic activities.

The amount of the fine for committing an offense provided for in Part 3-1 of Article 159 of the Administrative Code is differentiated depending on the legal status of the offender, and if the offender is a business entity, it also depends on which category of business entities he belongs to. In this regard, the body bringing the offender to administrative responsibility must first establish the legal status of this person and the category of entrepreneurship to which he belongs before bringing a person to justice.

Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:

- for small or medium–sized businesses or non-profit organizations - 3 percent of the income (revenue) received as a result of monopolistic activities,

- for large business entities – 5 percent of the income (revenue) received as a result of monopolistic activities.

The penalty rates are fixed and are not subject to change by the body imposing them.

Also, as an additional punishment for the commission of an offense provided for in Part 3-1 of the commented article, its sanction provides for the confiscation of monopoly income received as a result of monopolistic activities for a period of no more than one year.

An administrative penalty under Part 3-1 of the commented article, by virtue of a direct indication of this in the Code of Administrative Offenses, is imposed on the offender only by the court, since the case of an administrative offense, for which the law provides for a sanction in the form of confiscation, must be considered in court.

Part 4 of the commented article establishes a more severe penalty for repeated commission of any of the offenses provided for in Parts 1, 2, 3 or 3-1 of the commented article within a year after the imposition of an administrative penalty.

At the same time, the object, the subjective side, and the subjects of the offense provided for in Part 4 of the commented article coincide in their characteristics with the object, the subjective side, and the subjects of any of the offenses provided for in Parts 1, 2, 3, 3-1 of Article 159 of the Administrative Code.

In the description of the objective side of the offense provided for in Part 4 of Article 159 of the Administrative Code, a sign of repetition is added to any of the acts provided for in Parts 1, 2, 3, 3-1 of the commented article.

An offense is considered to have been committed repeatedly if a person has previously committed any of the acts provided for in Parts 1, 2, 3, 3-1 of Article 159 of the Administrative Code, has been subjected to administrative punishment for it, and the one-year period during which the person is considered to have been subjected to administrative punishment has not expired yet.

The repetition of an offense is an independent qualifying feature, entailing the qualification of an unlawful act as an independent element of an offense under Part 4 of Article 159 of the Administrative Code.

Repetition as a qualifying feature is established not only in fact by identifying the number and nature of the unlawful acts committed by the violator during the year, but also legally by establishing the fact of bringing this person to administrative responsibility for the commission of any of the offenses provided for in Parts 1, 2, 3, 3-1 of art. 159 of the Administrative Code, the presence of an effective and not revoked court decisions on the imposition of administrative penalties under parts 1, 2, 3, 3-1 art. 159 of the Administrative Code, the fact of its announcement, delivery or referral to the offender and the expiration of a one-year period from the date of imposition of the penalty.

If a person has committed an illegal act repeatedly or continues to commit it after the beginning of the commission and until it is revealed, but until that moment he has not previously been brought to administrative responsibility under Parts 1, 2, 3, 3-1 of Article 159 of the Administrative Code, then bringing him to responsibility under Part 4 of Article 159 of the Administrative Code is impossible, because there is no qualifying sign of repetition. In this case, the person must be brought to administrative responsibility and punished, respectively, under Parts 1, 2, 3 or 3-1 of art. 159 of the Administrative Code, even if there are signs of repeated violations during the year and the uniformity of violations committed.

For repeated commission of any of the offenses provided for in Parts 1, 2, 3, 3-1 of Article 159 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine with mandatory confiscation of income (proceeds) received as a result of monopolistic activities.

The amount of the fine for committing an offense under Part 4 of Article 159 of the Administrative Code is differentiated depending on the legal status of the offender, and if the offender is a business entity, it also depends on which category of business entities he belongs to. In this regard, the body bringing the offender to administrative responsibility must first establish the legal status of this person and the category of entrepreneurship to which he belongs before bringing a person to justice.

Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:

- for small or medium–sized businesses or non-profit organizations - 5 percent of the income (revenue) received as a result of monopolistic activities,

- for large business entities – 10 percent of the income (revenue) received as a result of monopolistic activities.

The penalty rates are fixed and are not subject to change by the body imposing them.

Also, as an additional punishment for the commission of an offense provided for in Part 4 of the commented article, its sanction provides for the confiscation of monopoly income received as a result of monopolistic activities for a period of no more than one year.

An administrative penalty under Part 4 of the commented article, by virtue of a direct indication of this in the Code of Administrative Offenses, is imposed on the offender only by the court, since the case of an administrative offense, for which the law provides for a sanction in the form of confiscation, must be considered in court.

Part 5 of the commented article establishes administrative responsibility for the coordination by individuals and (or) legal entities of the economic activities of market entities capable of leading, leading or leading to any form of anticompetitive agreements of market entities prohibited by the PC RK.

The objective side of the offense provided for in Part 5 of the commented article is characterized by the commission by individuals and (or) legal entities of illegal actions, expressed in their coordination of the economic activities of market entities, capable of leading, leading or leading to any form of anticompetitive agreements of market entities prohibited by the PC RK.

Coordination of economic activity, according to paragraph 5 of Article 169 of the PC RK, is the coordination of actions of market entities by a third party who is not part of the same group of persons with any of these market entities and does not operate in the commodity market (commodity markets) in which the actions of market entities are coordinated.

The coordination of economic activities of market entities that may lead to, result in, or have led to the conclusion of anticompetitive agreements prohibited by the PC of the Republic of Kazakhstan is also prohibited by the PC of the Republic of Kazakhstan.

The concept and types of anticompetitive agreements prohibited by the PC of the Republic of Kazakhstan are defined in the PC of the Republic of Kazakhstan.

For committing an offense under Part 5 of Article 159 of the Administrative Code, the offender is punished with a fine.

The amount of the fine for committing an offense under Part 5 of Article 159 of the Administrative Code is differentiated depending on the legal status of the offender, and if the offender is a business entity, it also depends on which category of business entities he belongs to. In this regard, the body bringing the offender to administrative responsibility must first establish the legal status of this person and the category of entrepreneurship to which he belongs before bringing a person to justice.

Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:

- for individuals – 150 MCI,

- for small businesses or non–profit organizations - 350 MCI,

- for medium–sized businesses - 500 MCI,

- for large business entities – 1000 MCI.

The amounts of fines are fixed and are not subject to change by the body imposing them.

An administrative penalty under Part 5 of the commented article is imposed on the offender by the court by virtue of a direct indication of this in the Code of Administrative Offenses.

Part 6 of the commented article establishes a more severe penalty for repeated commission of the act provided for in Part 5 of the commented article within a year after the imposition of an administrative penalty.

At the same time, the object, the subjective side and the subjects of the offense provided for in Part 6 of the commented article coincide in their characteristics with the object, the subjective side and the subjects of the offense provided for in Part 5 of Article 159 of the Administrative Code.

In the description of the objective side of the offense provided for in Part 6 of Article 159 of the Administrative Code, a sign of repetition is added to any of the acts provided for in Part 5 of the commented article.

An offense is considered to have been committed repeatedly if the person has previously committed the act provided for in Part 5 of Article 159 of the Administrative Code, has been subjected to administrative punishment for it, and the one-year period during which the person is considered to have been subjected to administrative punishment has not expired yet.

The repetition of an offense is an independent qualifying feature, entailing the qualification of an unlawful act as an independent element of an offense under Part 6 of Article 159 of the Administrative Code.

Repetition as a qualifying feature is established not only in fact by identifying the number and nature of the unlawful acts committed by the violator during the year, but also legally by establishing the fact of bringing this person to administrative responsibility for committing an offense under Part 5 of Article 159 of the Administrative Code, the existence of an effective and unturned court order imposing an administrative penalty under Part 5 art . 159 of the Administrative Code, the fact of its announcement, delivery or referral to the offender and the expiration of a one-year period from the date of imposition of the penalty.

If a person has committed an illegal act repeatedly or continues to commit it after the start of the commission and until it is revealed, but until that moment he has not previously been brought to administrative responsibility under Part 5 of Article 159 of the Administrative Code, then bringing him to responsibility under Part 6 of Article 159 of the Administrative Code is impossible, since there is no qualifying sign of repetition. In this case, the person must be brought to administrative responsibility and punished under Part 5 of art. 159 of the Administrative Code, even if there are signs of repeated violations during the year and the uniformity of violations committed.

For repeated commission of an offense under Part 5 of Article 159 of the Administrative Code within a year after the imposition of the penalty, the offender is punished with a fine.

The amount of the fine for committing an offense under Part 6 of Article 159 of the Administrative Code is differentiated depending on the legal status of the offender, and if the offender is a business entity, it also depends on which category of business entities he belongs to. In this regard, the body bringing the offender to administrative responsibility must first establish the legal status of this person and the category of entrepreneurship to which he belongs before bringing a person to justice.

Depending on the legal status of the offender and the business category to which he belongs, the amount of the fine is:

- for individuals – 200 MCI,

- for small businesses or non–profit organizations - 350 MCI,

- for medium–sized businesses - 700 MCI,

- for large business entities – 1,500 MCI.

The amounts of fines are fixed and are not subject to change by the body imposing them.

An administrative penalty under Part 6 of the commented article is imposed on the offender by the court by virtue of a direct indication of this in the Code of Administrative Offenses.

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);

Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);

Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);

Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;

Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);

Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.

Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus

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