ORDER OF THE CHAIRMAN OF THE AGENCY ON PROTECTION AND DEVELOPMENT OF THE COMPETITION OF THE REPUBLIC OF KAZAKHSTAN

of June 13, 2022 No. 15

About approval of Rules of equal access to key capacity

According to Item 3 of article 176-1 of the Entrepreneurial code of the Republic of Kazakhstan PRIKAZYVAYU:

1. Approve the enclosed Rules of equal access to key capacity.

2. In the procedure established by the legislation of the Republic of Kazakhstan to provide to management of legal regulation of the competition of the Agency on protection and development of the competition of the Republic of Kazakhstan (further – the Agency):

1) state registration of this order in the Ministry of Justice of the Republic of Kazakhstan;

2) placement of this order on Internet resource of the Agency after its official publication.

3. To impose control of execution of this order on the supervising vice-chairman of the Agency.

4. This order becomes effective after sixty calendar days after day of its first official publication.

Approved by the Order of the Chairman of the Agency on protection and development of the competition of the Republic of Kazakhstan of June 13, 2022 No. 15

Rules of equal access to key capacity

Chapter 1. General provisions

1. These rules of equal access to key capacity (further - Rules) are developed according to Item 3 of article 176-1 of the Entrepreneurial code of the Republic of Kazakhstan (further - the Code) and determine procedure for provision of equal access to subjects of the market to key capacity.

2. In Rules the following concepts are applied:

1) key capacity - goods, infrastructure facility of the subject of the market holding the dominating or monopoly position (further - the owner of key capacity) without access to which other subjects of the market cannot enable production and (or) sales of goods in the corresponding or adjacent goods market;

2) goods - the goods, work, service which are object of civil circulation;

3) the single operator on supply of oil products - the legal entity determined by authorized body in the field of production of oil products which main object of activity is providing Armed Forces of the Republic of Kazakhstan, the Border service of Committee of homeland security of the Republic of Kazakhstan, National guard of the Republic of Kazakhstan, authorized body in the field of civil protection, authorized body in the field of the state material reserve with oil products, and also provision by it of services in storage and delivery of oil products.

3. Equal access to key capacity is provided on market conditions.

4. Failure to provide equal access to key capacity according to article 174 of the Code is abuse of the dominating or monopoly position which attracts the responsibility established by part 3-1 of article 159 of the Code of the Republic of Kazakhstan about administrative offenses.

5. In case of detection of key capacity within the carried-out analysis of competitive situation in the goods markets the antimonopoly authority places on the Internet resource the conclusion by results of the carried-out analysis of competitive situation in the goods markets (further - the conclusion) and the list of owners of key capacity (further - the list).

The list includes full name of the goods market, the subject of the market, the owner of key capacity.

The owner of key capacity is determined taking into account requirements of article 165 of the Code.

6. Within five calendar days from the date of placement of the conclusion and the list the antimonopoly authority sends to the subject of the market the written notice of recognition by its owner of key capacity.

7. The owner of key capacity after sixty calendar days from the date of receipt of the notification brings the activities into accord with Rules.

8. In case of need additional time expenditure the owner of key capacity files in antimonopoly authority the reasoned statement about prolongation of the term specified in Item 7 of Rules in case of observance of one and (or) several conditions:

1) implementation of information system for order taking of partners in case of registration and the conclusion of the purchase and sale agreement or rendering service (work);

2) approval of internal procedure for receipt of access to key capacity;

3) renewal of purchase and sale agreements or rendering service (work) with receivers of access to key capacity;

4) need of one-time completion of implementation of the investment projects no more than five years financed for the income account, received from the activities connected with use of key capacity and approved with the authorized body performing regulation of the corresponding industry and antimonopoly authority and also compulsory execution upon termination of the term of delay of the requirements established by the legislation of the Republic of Kazakhstan concerning the owner of key capacity.

Prolongation of term for reduction of the activities according to Rules is performed for the term which is not exceeding one year, except for the case provided by the subitem 4) of this Item.

9. The decision on prolongation of term or on refusal in prolongation is accepted by the head of antimonopoly authority or person replacing it within thirty calendar days from the moment of receipt of the reasoned statement taking into account justification of necessary time expenditure.

Chapter 2. Procedure for provision of equal access to key capacity

10. Provision of equal access to key capacity is performed in the following sequence:

1) giving by the subject of the market to the owner of key capacity of the request about provision of access to key capacity (further - the request);

2) consideration of the request by the owner of key capacity;

3) issue of result of consideration of the request by the owner of key capacity;

4) conclusion of the agreement.

11. The owner of key capacity annually not later than 2 (two) months prior to order taking places on the Internet resource the schedule of order taking (further - the schedule) with indication of the postal address, the e-mail address, and also contact information of the structural division responsible for order taking.

The owner of key capacity provide to antimonopoly authority access to information system regarding distribution and satisfaction of requests at the request of state body.

The information system of the owner of key capacity contains personal account for each receiver of access to key capacity.

The term of order taking constitutes at least one month.

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