On recognition as illegal and cancellation of the order to conduct an investigation
No. 6001-22-00-6ap/1987 dated 03/07/2023 (similar case No. 6001-22-00- 6ap/1968 dated 03/16/2023)
Plaintiff: "K" LLP
Respondent: Russian State Institution "Department of the Agency for Protection and Development of Competition of the Republic of Kazakhstan in the Karaganda region"
The subject of the dispute: the recognition of the illegal and cancellation of the order to conduct an investigation
Review of the defendant's cassation complaint PLOT:
On December 27, 2021, the Department issued Order No. 59-OD on conducting an investigation into violations of legislation in the field of protection
competition Law (hereinafter referred to as the Order) in relation to the Partnership, the investigation period is from December 27, 2021 to March 27, 2022. The period under review is February–October 2021, the subject of the investigation is the establishment of factual data confirming or refuting the commission of anticompetitive coordinated actions in setting and (or) maintaining prices aimed at restricting competition prohibited by law.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision is overturned, the claim is satisfied.
Cassation: the decision is overturned, the decision is upheld.
Conclusions:
The Court of First Instance indicated that the contested Order was issued in accordance with subparagraph 3) paragraph 2 of Article 216, paragraph 3 of Article 199 of the Business Code and no violations have been established, since there were signs of concerted actions to set and maintain prices.
The Court of Appeal concluded that the defendant did not have sufficient data indicating the presence of signs of violations of the law in the plaintiff's actions. The conclusions of the court of appeal do not correspond to the circumstances established in the case.
The order approving the conclusion based on the results of the investigation may be appealed by the object of the investigation to the court in accordance with the procedure established by the APPC.
The arguments of the Partnership about the absence of illegal actions on their part are subject to investigation as part of the investigation.
Investigation means the activities of the antimonopoly authority aimed at collecting factual data confirming or refuting the commission of violations of the legislation of the Republic of Kazakhstan in the field of competition protection, in accordance with the procedure provided for by this Code. The decision on the presence or absence of violations of the legislation of the Republic of Kazakhstan in the field of competition protection in the actions of the object of investigation is made by the antimonopoly authority based on the results of the investigation.
The Court of first instance came to the correct conclusion that the plaintiff's rights and legitimate interests were not affected by the appointed investigation, and the plaintiff was not deprived of the right to challenge in court the order approving the conclusion based on the results of the investigation.
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