State re-registration of a legal entity - a natural monopoly entity, as well as registration of the termination of its activities
In accordance with part 4 of Article 164 of the Administrative Code, administrative liability is provided for non-compliance by a natural monopoly entity with the obligations established by the legislation of the Republic of Kazakhstan on natural monopolies, with the exception of the obligation to provide information, reports, and notifications to the authorized body responsible for managing natural monopolies. Special subject - the subject of a natural monopoly, the range of circumstances to be established: 1) assigned to the subject by the legislation of the Republic of Kazakhstan. duties, 2) conditions, procedure, methods and terms of performance of duties, 3) whether or not the duties are fulfilled by the subject. The state re-registration of a legal entity that is a natural monopoly entity, as well as the registration of the termination of its activities, is carried out by the registering authority only with the prior consent of the authorized body. By the resolution of the Department of CRE in Kostanay region (hereinafter referred to as the Department) dated September 8, 2017, JSC "T" (hereinafter referred to as the Company) was held liable under part 4 of Article 164 of the Administrative Code. By a resolution of the CAC of the city of Kostanay dated September 22, 2017, the Department's resolution was canceled, the proceedings were terminated due to the absence of an administrative offense in the actions of the Company. By a resolution of the Supreme Court dated February 22, 2018, the resolution of the CAC of Kostanay city dated September 22, 2017 regarding JSC "T" was canceled, the resolution of the Deputy Head of the Department of the Committee for Regulation of Natural Monopolies and Protection of Competition of the Ministry of National Economy of the Republic of Kazakhstan for Kostanay region dated September 8, 2017 was upheld. It follows from the case file that by letter dated August 14, 2017, the Company notified the authorized body of the re-registration in connection with the renaming of JSC "E" to JSC "T". It was established that the Company, being a natural monopoly entity, was re-registered without the prior consent of the authorized body. This fact became the basis for bringing the Company to administrative responsibility under part 4 of Article 164 of the Administrative Code.
State re-registration of a legal entity - a natural monopoly entity, as well as registration of the termination of its activities
The Court of first instance, terminating the proceedings in the case, concluded that the provision on the consent of the authorized body for the re-registration of a natural monopoly entity is required only in the case of reorganization or liquidation of a legal entity. The company has passed the state re-registration for a different reason, due to the name change. According to paragraph 2 of Article 18-3 of the Law of the Republic of Kazakhstan "On Natural Monopolies", the state re-registration of a legal entity - the registration of a natural monopoly entity, as well as the registration of the termination of its activities, are carried out by the registering authority only with the prior consent of the authorized body, which is provided to the natural monopoly entity in the form of an electronic document through an electronic document management system or on paper, requiring the consent of the authorized body in charge of natural monopolies, Article 14 of the Law of the Republic of Kazakhstan "On State Registration of Legal Entities and Registration of Branches and representative Offices" is also provided for state re-registration of natural monopoly entities. The fulfillment of the requirements for the mandatory consent of the authorized body responsible for management in the fields of natural monopolies for re-registration is necessary to ensure proper state regulation of the activities of natural monopoly entities, regardless of the grounds for re-registration of a legal entity. In connection with the above, the board concluded that the ruling of the court of first instance did not comply with the principle of legality. The receipts presented to consumers for payment do not indicate the imposition of conditions for access to a regulated service or discrimination against consumers, but an error in charging for the services (goods) provided. By the resolution of the Department of CRE for the South Kazakhstan Region (hereinafter referred to as the Department) dated May 22, 2018, the South Kazakhstan Production Branch of K Joint Stock Company (hereinafter referred to as the Branch) was brought to administrative responsibility under part 4 of Article 164 of the Administrative Code with the imposition of an administrative fine in the amount of 1,600 monthly calculation indices (hereinafter referred to as the MCI) in the amount of 3,848,000 tenge. By a resolution of the Shymkent City Council of Civil Protection dated June 14, 2018, the Department's resolution remained unchanged.
By the resolution of the South Kazakhstan Regional Court dated July 13, 2018, the decision of the court of first instance remained unchanged. By the decision of the Supreme Court, the resolutions were canceled, the proceedings were canceled due to the absence of an administrative offense. According to the case file, the Department, based on the statements of a group of citizens, conducted an unscheduled audit of the Branch's activities, which established that consumer R. was unreasonably transferred by the Branch to a regulatory charge, which led to an increase in her accounts receivable to 78 496 tenge, and consumer E. An additional payment of 184,499 tenge has been unreasonably demanded. These actions of the Branch were regarded by the authorized body as the commission by a natural monopoly entity of the imposition of conditions for access to regulated services (goods) and other actions leading to discrimination against consumers, that is, violations of subparagraph 5) of paragraph 1 of Article 5 of the Law of the Republic of Kazakhstan "On Natural Monopolies" dated July 9, 1998 No. 272-I SAM. This norm prohibited a natural monopoly entity from imposing conditions of access to regulated services (goods, works) of natural monopoly entities or from performing other actions leading to consumer discrimination. In the current Law of the Republic of Kazakhstan "On Natural Monopolies" dated December 27, 2018, No. 204-VI SAM, this provision partially corresponds to subparagraph 5) of paragraph 2 of Article 26 of the Law on the obligation to provide consumers with equal conditions of access to regulated services. In accordance with the List of Regulated Services (goods, works) of natural Monopoly entities, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated December 30, 2014 No. 186, the regulated activity of Joint Stock Company "K" as a natural monopoly entity is the transportation of commercial gas through connecting, main gas pipelines and gas distribution systems for consumers of the Republic of Kazakhstan. Violations of the Branch were detected in the retail sale of commercial gas, an activity regulated by the Law of the Republic of Kazakhstan "On Gas and Gas Supply", as well as by Order of the Minister of Energy of the Republic of Kazakhstan dated November 3, 2014 No. 96 "On Approval of the Rules for the Retail Sale and Use of Commercial and Liquefied Petroleum Gas" (hereinafter referred to as the Rules for Retail Sale).
Thus, state regulation of prices in accordance with subparagraph 3) Paragraph 1 of Article 124-5 of the PC applies to goods (works, services) of subjects of socially significant markets in the retail sale of marketable gas, retail sale of liquefied petroleum gas through group tank installations. At the time of receipt of the receipt and inspection, consumers used gas and had full access to the services of the natural monopoly entity without any restrictions, as a result of which there is no imposition of access conditions. The receipts presented to consumers for payment under the stated circumstances do not indicate the imposition of conditions for access to a regulated service or discrimination against consumers, but an error in charging for the services (goods) provided. This error in relation to consumer E. was corrected by the Branch and did not result in the collection of funds. The Supreme Court concluded that the authorized body had not provided evidence of the presence of signs of an administrative offense in the actions of the Branch, provided for in part 4 of Article 164 of the Administrative Code, and therefore the decisions were canceled with the subsequent termination of proceedings in the absence of an administrative offense.
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