Monopolistic activity The administrative proceedings were terminated due to the lack of anticompetitive and coordinated actions

By a resolution of the specialized interdistrict Administrative Court of Astana city dated November 6, 2017, the Partnership was found guilty of committing an administrative offense under part 2 of Article 159 of the Code of Administrative Offenses of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code), with a fine of five percent of the income (revenue) of 50 150 729 tenge received as a result of monopolistic activities. activities, in the amount of 2,507,536 tenge. By the resolution of the Astana City Court dated December 21, 2017, the said resolution was left unchanged. In the submission of the Chairman of the Supreme Court of the Republic of Kazakhstan, it is proposed to review the court ruling that has entered into force due to a violation of uniformity in the interpretation and application of legal norms by courts. In the objection to the petition, the representative of the authorized body requests that the court rulings remain unchanged, and the petition of the Partnership be dismissed. The courts proved the guilt of the Partnership in committing an administrative offense under Part 2 of Article 159 of the Administrative Code, motivated by the fact that they committed anticompetitive actions coordinated with other market entities prohibited by the Business Code of the Republic of Kazakhstan (hereinafter referred to as the Code), which resulted in an unjustified increase and maintenance of the retail price for the sale of diesel fuel in the period from 7, 9, 28 September 2016, if there are remnants of diesel fuel (summer) purchased at the old purchase price. These conclusions of the courts do not comply with the law and the circumstances relevant to the case. According to part 2 of Article 159 of the Administrative Code, liability under this article is provided for anticompetitive, coordinated actions of market entities prohibited by the Code, if these actions do not contain signs of a criminal offense. The disposition of this article is a blank (reference), which clearly states that the responsibility of a market entity comes when it violates the requirements of the Code.

Monopolistic activity The administrative proceedings were terminated due to the lack of anticompetitive and coordinated actions

At the same time, in accordance with paragraph 2 of Article 170 of the Code, the actions of market entities may be recognized as coordinated if they collectively meet the following conditions:: the result of such actions corresponds to the interests of each of the market participants; the actions of market participants are known to each of them in advance; the actions of each of these market participants are caused by the actions of other market participants participating in coordinated actions, and are not the result of circumstances equally affecting these market participants; The total share of market entities participating in them in the relevant commodity market is thirty-five percent or more. In the absence of one of these conditions, there are no grounds for recognizing the actions of market participants as anticompetitive and coordinated, respectively, in this case, it cannot be argued that the actions of the Partnership constitute an administrative offense provided for in part 2 of Article 159 of the Administrative Code. As follows from the conclusion of the investigation dated August 31, 2017, on September 7, 2016, the Partnership increased the price of diesel fuel from 120 to 121 tenge. At the same time, the cost of 121 tenge of JSC "K" was set on September 2, 2016. The next price increase for the Partnership occurred on September 9, 2016 from 121 to 128 tenge. At this price, S LLP began selling diesel fuel on September 22, 2016. Thus, the increase in diesel fuel prices among market participants occurred at different times, which confirms the lack of any consistency between market participants. The conclusions of the authorized body's conclusion that the Partnership, together with other market participants, in order to satisfy its commercial interests, deliberately created a situation in which it is economically impractical for buyers to choose another retail distributor, do not correspond to the actual circumstances of the case.  Thus, at the time of the price increase for diesel fuel from 120 to 121 tenge and in the following days, the price for this type of fuel for LLP "F" was 120 tenge, for LLP "G" - 118 tenge, for LLP "S" - 117 tenge. This circumstance indicates that the buyer had the freedom of choice and the opportunity to purchase diesel fuel at a lower price from other entities. Monopoly income is income earned by a market entity as a result of monopolistic activities limited by the Code. In accordance with article 225 of the Code, monopoly income can be obtained by a market entity as a result of coordinated actions of market entities. However, according to the conclusion of the investigation, the Partnership has no monopoly income for the period under review. These circumstances indicate that there is no imputed administrative offense in the actions of the Partnership, provided for in part 2 of Article 159 of the Administrative Code, and therefore there are no legal grounds for bringing the Partnership to administrative responsibility under this article. The Specialized Judicial Board of the Supreme Court has annulled judicial acts of local courts, and proceedings in the case of an administrative offense against the limited liability partnership "I" have been terminated due to the absence of elements of an administrative offense in its actions, provided for in part 2 of Article 159 of the Code of the Republic of Kazakhstan on Administrative Offenses. The submission of the Chairman of the Supreme Court of the Republic of Kazakhstan is satisfied. 

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases