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ORDER OF THE GOVERNMENT OF THE REPUBLIC OF KAZAKHSTAN

of June 30, 2022 No. 453

About approval of Rules of determination of the state company, joint-stock company, limited liability partnership by the subject of the special right

According to Item 3 of article 193 of the Entrepreneurial code of the Republic of Kazakhstan the Government of the Republic of Kazakhstan DECIDES:

1. Approve the enclosed Rules of determination of the state company, joint-stock company, limited liability partnership by subject of the special right.

2. This resolution becomes effective since July 1, 2022 and is subject to official publication.

Prime Minister of the Republic of Kazakhstan

A. Smailov

Approved by the Order of the Government of the Republic of Kazakhstan of June 30, 2022 No. 453

Rules of determination of the state company, joint-stock company, limited liability partnership by the subject of the special right

Chapter 1. General provisions

1. These rules of determination of the state company, joint-stock company, limited liability partnership by the subject of the special right (further – Rules) are developed according to Item 3 of article 193 of the Entrepreneurial code of the Republic of Kazakhstan (further – the Code) and determine procedure for determination of the state company, joint-stock company, limited liability partnership by the subject of the special right.

2. In these rules the following concepts are used:

1) the special right – exclusive or the privilege of the subject of the market affirmed by the law to production, realization and (or) purchase of any goods in the competitive market;

2) the candidate – joint-stock company, the limited liability partnership participating in tender by determination of the subject of the special right;

3) tender committee (further – the commission) – the collegiate organ considering the documents filed by participants of tender and the performing candidate screen for determination of the subject of the special right;

4) goods – the goods, work, service which are object of civil circulation;

5) authorized state body – the state body performing management of the corresponding industry (sphere) of public administration.

Chapter 2. Procedure for determination of the state company, joint-stock company, limited liability partnership by the subject of the special right

3. The state companies, joint-stock companies, limited liability partnerships are determined by subjects of the special right in case of set of the following conditions:

1) the special right assumes sales of goods to uncertain circle of consumers;

2) the special right gives the chance to the subject of the market to control the corresponding or adjacent goods market, including allows to exert considerable impact on general terms of the goods circulation.

Establishment of the conditions specified in subitems 1) and 2) to part one of this Item is confirmed by the conclusion of antimonopoly authority by results of the carried-out analysis of competitive situation in the goods market.

4. Provisions of Rules do not extend to activities of the single accumulation pension fund, the affiliated organizations of National Bank of the Republic of Kazakhstan promoting implementation of the functions assigned to them and (or) who are part of infrastructure of the financial market, subjects of natural monopoly.

5. In case of introduction of the special right the conditions specified in Item 11 of article 193 of the Code are complied.

6. Determination of the subject of the special right is performed according to the decision of the Government of the Republic of Kazakhstan.

The drafts of the orders of the Government of the Republic of Kazakhstan providing determination of subjects of the special right are subject to obligatory approval of antimonopoly authority.

7. In case of determination by the subject of the special right of the state company, the legal entity, hundred percent of shares (share in the authorized capital) which directly or indirectly belong to the state, the authorized state body provides adoption of the legal act according to Item 6 of these rules.

8. Determination by the subject of the special right of the legal entity, less than hundred percent of shares (share in the authorized capital) which directly or indirectly belong to the state, it is allowed only in case of impossibility of determination by the subject of the special right of the legal entity, hundred percent of shares (share in the authorized capital) which directly or indirectly belong to the state.

In the case specified in parts one of this Item, authorized state bodies at least once in five years hold competition according to the procedure, established by this Chapter.

9. The authorized state body based on the protocol on results of tender provides adoption of the legal act according to Item 6 of these rules.

10. The state company, joint-stock company, limited liability partnership, hundred percent of shares (share in the authorized capital) which directly or indirectly belong to the state, the legal entity, less than hundred percent of shares (share in the authorized capital) which directly or indirectly belong to the state, determined according to these rules the subject of the special right is subject to inclusion in the state register of subjects of the state monopoly, the special right.

Paragraph 1. Procedure for carrying out tender

11 Competition is held among the candidates who showed willingness to participate in tender and conforming to qualification requirements.

12. The following qualification requirements are imposed to candidates:

1) to have legal capacity;

2) not to have the tax debt exceeding the sixfold size of the monthly settlement indicator established for the corresponding financial year by the law on the republican budget;

3) not to be subject to insolvency proceeding or liquidation;

4) to have sufficient material, labor and financial resources according to the tender documentation.

13. The authorized state body which approves structure of the commission, the tender documentation, the place, date and time of carrying out tender acts as the organizer of tender.

14. The commission is created in number of at least 9 members from among heads and (or) deputy managers of authorized state bodies, representatives of antimonopoly authority, National chamber of entrepreneurs of the Republic of Kazakhstan of Atameken (under approval), public associations (under approval) and independent experts (under approval).

Persons having nationality of the Republic of Kazakhstan, the diploma about the higher profile education, work experience in the respective area of the special right at least 5 (five) years not affiliated with officials of authorized state body can act as independent experts.

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