OECD Peer Reviews of Competition Law and Policy: Kazakhstan 2025

9. Conclusions and recommendations

Abstract

This chapter summarises the main findings of the Peer Review and sets out first the priority recommendations and then the detailed recommendations to enhance Kazakhstan’s competition regime. Key recommendations aim to strengthen the Agency’s independence and resources, promote competitive neutrality, improve transparency and reduce the state’s role in competitive markets.

Kazakhstan’s competition law and policy has undergone many reforms and changes in the past decade following the 2016 Peer Review. OECD commends the implemented reforms and Kazakhstan’s willingness to undergo further reform to bring the competition law framework closer to international standards. This section identifies areas in which further steps should be considered to strengthen the competition regime.

9.1. Main findings from the Review

9.1.1. A dispersed legal regime, lacking a unified competition law

At present, the competition legal regime encompasses several legal instruments of which the Entrepreneur Code is the most prominent, but far from the only legal text that the Agency and the courts must consider. Uniting all competition related-provisions into a Competition Law could support the Agency’s enforcement efforts. In particular, having a special law dedicated to competition would accomplish multiple purposes:

• single out the core business of the Agency and separate it from its other functions, which hamper efficiency and consume important resources

• provide additional deterrence against amendments of the legal framework

• provide an additional opportunity to shape the independence of the Agency

• allow for an easier understanding and predictability for companies and investors and

• ease the burden for the judiciary system which has to uphold the competition law.

9.1.2. A marked shift away from enforcement towards soft-law approaches

A general remark relates to the gradual drift observed across the Agency’s enforcement record to move towards so-called soft-law approaches (notifications, warnings and in particular the “anti-monopoly compliance”). While these measures may promote compliance with the competition law using a variety of strategies other than hard enforcement, the implementation of these schemes mobilise significant resources and staff time, and impose a heavy administrative burden on the Agency staff. Kazakhstan should carefully assess the effect of this strategy which detracts resources from the core work of the Agency which should be the enforcement of the competition law. This soft-law approach may ultimately affect negatively the overall effectiveness and deterrent effect of the enforcement system. More resources should be moved to effective ex-post enforcement of Kazakhstan’s competition law.

Furthermore, the deterrent effect of the Agency’s fines appears to be questionable. Not only is the way that fines are calculated difficult to understand immediately by firms, moreover, their magnitude seems to be comparatively low. Fines should be calculated on the basis of the party’s turnover and regardless of size, legal form and other circumstances. Aggravating factors should increase the magnitude of the fine by some pre-determined percentage. The system of fines could be clear and transparent to all market players.

9.1.3. Overly short timeframes to conduct investigations

Other general concerns are reflected in the very short timeframes that the Agency appears to have self-imposed on itself when applying competition rules. These may possibly result from external pressure to be perceived as an effective agency, but the very short time-span to investigate inevitably limit the depth of the analysis that the agency can carry out. This therefore negatively impacts the results produced, especially when it comes to in-depth economic analysis of the conduct and transactions under review, and means that the Agency in most cases rely on structural presumptions in their decision-making. Ultimately, the short timeframes and rushed decisions may harm the Agency, as they lead to numerous cases being rejected by the courts on procedural or technical grounds.

9.1.4. Inefficient leniency programmes

Other points noted in the report relate to some of the Agency’s available tools, which are not used to the best effect, either for cultural reasons or because of the legal framework which hampers their effectiveness, or both. This is for example the case of the leniency programme. In addition to cultural reasons which limit the inclinations to come forward to report on illegal conduct, the legal frame stipulates that the Agency must be unaware of any infringement; this is not typical of other jurisdictions (discussed in Box 5.7)). Moreover, the leniency only applies to the administrative sanctions, but does not prevent criminal prosecution. Finally, the rules stipulate that the leniency applicant must voluntarily compensate any damages to consumers arising from the restrictive agreement or concerted practice. This final point virtually rules out all leniency applications as it can be very difficult if not impossible to adequately calculate the cost to all consumers, depending on the nature of the product subject to the illegal activity. Therefore, the OECD would strongly recommend that the final clause be abrogated fully, along with the requirement that the Agency must be fully unaware of any illegal activity having taken place already in the particular matter.

9.1.5. Inadequate use of market studies

The OECD also found that market studies were not being conducted nor used in the way usually found in other jurisdictions, and it recommends enhancing the role of market studies by shifting from a formalistic, checklist-driven approach toward more substantive, high-quality economic analysis. The current legal requirement to conduct a market study prior to initiating an enforcement case, using a fixed, legally mandated methodology, has limited the practical value of this tool. As noted throughout the report, the market studies conducted by the Agency do not comply with international standards. A well-designed market study should provide a comprehensive, forward-looking analysis of a market, covering structural parameters, regulatory conditions, potential barriers to entry, market conduct, and outcomes. It should also incorporate stakeholder engagement, including interviews with market participants and consumers. In contrast, the Agency’s current approach focuses narrowly on structural indicators, such as concentration indices, which do not provide a sufficient evidentiary basis for enforcement.

Furthermore, the rigid procedural requirement to complete a sequence of eight predefined steps renders the process overly formalistic; failure to comply renders any resulting enforcement action inadmissible in court. This not only limits the Agency’s flexibility but also dilutes the strategic value of market studies as a tool for identifying competition concerns and setting enforcement priorities. The OECD recommends that the Agency enhance its technical and analytical capacity to conduct meaningful market studies aligned with international best practices. At the same time, the legally binding methodology used by the Agency should be replaced with non-binding guidelines—similar to those developed by the OECD—and which would include minimum standards, that would support but not constrain the Agency’s work, thereby enabling more effective and targeted enforcement. Such a change away from the rigid procedural requirement would allow the Agency to produce deeper and more context-specific analysis without sacrificing legal certainty—strengthening the role of market studies as a strategic enforcement and advocacy instrument, aligned with international good practice.

9.1.6. Mission creep detracts from agency effectiveness

Importantly, this review has also highlighted how a gradual expansion of the Agency’s remit towards other functions than competition law enforcement, such as having the responsibility for privatisations, monitoring the public procurement of medicines and health equipment, the licensing of commodity markets or the reinstatement of effective price control in many markets, means that the Agency does not have the right resources to focus on its core activity. It is not for this Peer Review to recommend a different allocation of these functions across government, but the increasing number of different and non-competition related functions have a negative effect on the ability of the agency to deliver on its core competition mandate.

While the statistics in this report seem to indicate a well-staffed Agency, it has been impossible to determine how many of these resources are effectively devoted to the core competition functions (enforcement, merger review, advocacy) of the Agency, as opposed to delivering on the other functions such as overseeing commodity exchanges, procurement of medicines and medical equipment, price control and privatisation, to mention a few. Based on interviews of stakeholders and Agency staff, it appears that only few staff are in fact fully engaged in enforcement activities, and sometimes they are not even devoted to enforcement full time, and divide their time across different functions.

To improve the effectiveness of the Agency, more clear and tight allocation of resources across functions, as well as a clear separation of functions (and resources) between regulatory activities and competition enforcement should be put in place. A larger proportion of Agency staff should also be fully and solely engaged in competition law enforcement. Ideally, this would include a restructuring of the Agency’s departments to clarify the missions of each department and notably gather enforcement staff under the Investigations and Concentration Departments respectively.

9.1.7. Widespread state participation in the economy undermines competition and creates market distortions

Excessive state support can hinder innovation and lead to inefficiencies, yet in transition economies, some level of state control is sometimes necessary to stabilise and develop key sectors. The challenge lies in ensuring that, as these sectors mature, government advantages are gradually minimised to foster private sector competition.

Kazakhstan maintains a significant state presence across a wide range of economic sectors, including those that are typically considered open to private competition, such as IT services, real estate, agriculture, and financial services. While measures such as the "Yellow Pages Rule" and recent privatisation initiatives have aimed to reduce state involvement, exemptions, unclear criteria, and selective enforcement limit their effectiveness. Moreover, the use of state monopolies and special rights to create single operators is growing, often without sufficient justification. These practices restrict market entry and reduce competitive pressure, necessitating costly and often inefficient price regulation as a compensatory mechanism. The lack of a unified and consistently applied framework for competitive neutrality, combined with broad access of state-owned enterprises to preferential treatment (e.g. subsidies, tax benefits, and soft loans), creates an uneven playing field for private firms. This undermines market dynamics and investor confidence, calling for a more consistent application of competitive neutrality principles.

9.1.8. Weak advocacy, transparency and stakeholder engagement limit an effective competition regime

While Kazakhstan has made progress in developing its competition framework, several regulatory challenges continue to limit the effectiveness of enforcement. Stakeholder participation in the development and revision of competition-related regulations remains limited, and no formal mechanisms exist to ensure systematic public consultation. This may undermine transparency and reduce the legitimacy and predictability of regulatory decisions. In addition, the absence of published guidelines or official criteria on key areas such as abuse of dominance, merger control, and restrictive agreements creates uncertainty for market participants and may hinder consistent application of the law. Addressing these gaps would improve legal certainty, strengthen regulatory coherence and align Kazakhstan’s competition regime more closely with international good practices.

9.2. Priority recommendations for competition policy and enforcement in the near term

The findings outlined above highlight several systemic and institutional constraints that limit the effectiveness of Kazakhstan’s competition regime. The following priority areas aim to offer a strategic roadmap for addressing these challenges in the near term. They aim to reinforce the independence and capacity of the Agency, enhance the effectiveness of enforcement tools, streamline merger control, promote competitive neutrality, and strengthen advocacy and stakeholder engagement.

9.2.1. Strengthening the Agency’s institutional capacity and resource allocation

In the near term, focus on reinforcing the Agency’s internal structure, human capital and prioritisation mechanisms to improve enforcement capabilities:

• Place more focus and allocate appropriate resources to competition enforcement (e.g. investigations) rather than other non-core competition-related responsibilities.

• Consider introducing a process for prioritising cases.

• Expand the investigations team with skilled analysts that can perform required tasks, such as data analysts and data scientists, econometricians and other technical staff.

• Consider reorganising the Agency according to enforcement area rather than by sector.

• Consider and redefine the role of the Analytical Research Centre for Competition Development (ARC) within the structure of the Agency and the possibility of establishing a fully-fledged Chief Economist Office within the Agency.

• Ensure that the employees working on competition matters are well trained, including by providing practical trainings and workshops on economic tools for competition analysis.

• Continue with the digitalisation efforts within the Agency.

9.2.2. Enhancing the Effectiveness of Antitrust Enforcement

Improve the analytical quality and substantive focus of enforcement actions:

• Improve the quality of economic analysis for anticompetitive conduct and focus on assessing economic effects, to gradually move away from an over-reliance on structural presumptions.

• Prioritise investigating and prosecuting exclusionary abuses over so-called exploitative abuses, such as “monopoly high prices”, especially when these are based solely on the observation of price increases.

Strengthen merger control to ensure it is more effective and risk-based:

• Consider abolishing the ex-post notification regime and require mandatory ex-ante notifications withs suspensory effects for all types of economic concentrations.

• Introduced simplified procedures and notification forms for reviewing economic concentrations that do not raise competition concerns.

• Make more frequent use of remedies to eliminate adverse effect of an economic concentration on competition.

Enhance legal certainty, transparency, and the deterrent effect of enforcement:

• Consider limiting, or abolishing altogether, the system of notifications.

• Ensure that all methodologies used for investigations are updated and published, but make them non-binding upon the Agency.

• Introduce a system of published guidelines for enforcers and judges.

• Consider increasing the magnitude of administrative fines for competition law violations to increase their deterrent effect.

9.2.3. Promoting Competitive Neutrality and Market Advocacy

Support a level playing field and stronger engagement with stakeholders:

• Restrict the establishment of single operators, state and natural monopolies.

• Promote competitive neutrality by applying the same rules to SOEs and private firms.

• Adopt transparent controls for state support and consider integrating best practices from the EU framework such as clearly defined criteria for state support, provisions on duration, transparency and non-discrimination.

• Continue with advocacy efforts to strengthen the understanding of competition and its benefits by market entities and the general public.

• Continue co-operating with state and local bodies, particularly sectoral regulators, on incorporating competition policy into their work.

9.3. Detailed recommendations by topic

The remainder of this chapter highlights the remaining specific recommendations divided into sections that follow the report. These recommendations build on the key priorities identified above and offer practical guidance to support implementation across the relevant areas of competition policy and enforcement. These should also be considered important, but the Agency can consider those in a second phase of reform or in the longer term.

9.3.1. Institutional framework

• Introduce clear rules on the appointment, dismissal and length of tenure of the Chair, Deputy Chairs, management board and Head of Regional Departments.

• Clarify that the Agency should set its own work plan and priority-setting of tasks.

• Develop a Human Resources strategy which may include prioritising retaining the existing staff to deal with high levels of staff leaving the Agency, introducing training programmes for existing staff and ensuring that all staff have access to the Internet through their office computer without prior permission.

• Consider ways to introduce stability of budget that would allow for long term planning of the Agency’s work as well as increase of budget to give room for investments in the Agency’s work not limited to payment of salaries.

• Consider introducing an independent source of funding to strengthen the Agency’s independence.

• Strengthen the internal audit or control function within the competition authority.

• Consider reallocating to other parts of government non-core responsibilities related to commodity markets, price regulation as well as monitoring and privatisation.

• Avoid duplication of tasks within the Agency, such as several different departments performing market analysis or supporting investigations.

• Clarify the appointment procedure of the Council of Barriers and the Public Council and set clear guidelines for their role in the functioning of the Agency.

• Clarify the appointment procedure of the Council of Barriers and the Public Council and set clear guidelines for their role in the functioning of the Agency.

• Clarify rules on conflicts of interest and ensure they are applied to all levels of staff.

• Increase transparency by publishing all decisions of the Agency in full, including details of the parties, theory of harm, legal basis and sanctions, subject to the protection of confidential information.

• Ensure that judges receive training on competition-related matters.

• Introduce specialised review courts as well as sufficient time for review.

9.3.2. Anti-competitive conduct

• Consider distinguishing between horizontal and vertical concerted practices in the application of the “de minimis” exemption.

• Make the presumption of a dominant position for market shares above 50% rebuttable, as well as the presumption of a monopsony position for market shares above 70%.

• Abolish the register for conglomerates and cease the monitoring.

• Review the system of imposing fines based on the monthly calculation index (MCI). This lacks transparency for firms, and complicates the calculation of fines, thereby diminishing the deterrent effect. Consider calculating fines as a share of turnover and raise the current percentage to create a genuine deterrent effect for firms to engage in misconduct.

9.3.3. Concentration control

• Review the criteria for merger notification, to move away from the use of the monthly calculation index and rather basing the notification requirement on objective criteria related to joint turnover, market share or transaction values. The current system lacks transparency and may lead to underenforcement.

• Extend the period for merger review to 30 days for Phase I analysis.

• Consider revising the criteria for taking a merger to Phase II investigations, which seem very loosely defined. Rather use considerations of economic effect, including in vertical mergers which may be anticompetitive, or other instances where the merging firms are not in adjacent markets, but where the merger may nonetheless be anticompetitive, for instance in relation to the merger of data bases or other uses of data.

9.3.4. Enforcement of competition law

• Abolish the strict timeframe for investigations, or at the very least extend it by up to one year, to allow for a more thorough analysis.

• Review the methodology for market studies to improve the analytical outcome by expanding and deepening the analysis. Change the current legally binding methodology into guidelines to allow for more flexibility and remove legally binding aspect which enables courts to dismiss a case.

• Consider establishing a quality-check procedure of the economic and legal arguments before presenting them to court.

• Introduce an option of a pre-trial settlement.

• Cease the practice of returning assets to state ownership as a sanction for competition law violations.

• Simplify and relax the requirements for the leniency programme, including by removing the requirement to reimburse consumers, and remove the fact that the offense be unknown to the Agency. Introduce the leniency programme within the criminal liability framework to increase its appeal.

9.3.5. Participation of state in the economy

• Consider unbundling of network infrastructure from value-added services and service operators enabling access to essential infrastructure (e.g. fibre-networks or telephone exchanges) by multiple service providers.

• Promote competitive neutrality in regulations and adhere to its principles in enforcement practice by following the steps below:

  • Enhance the understanding of competitive neutrality among policymakers. Moving toward adherence to OECD standards will not only foster a level playing field but also encourage foreign investment and entrepreneurial activity.

  • Revise national regulations to ensure that state-owned enterprises (SOEs) and private companies abide by the same fiscal, operational and procurement rules.

  • Remove automatic legitimisation clauses that shield legacy SOEs from current competitive standards.

  • Conduct a comprehensive review of subsidies, preferential tax treatments, and low-interest financing currently extended to SOEs.

  • Transition toward a transparent support mechanism based on competitive performance and market needs rather than status.

  • Mandate competitive bidding for government contracts, even when SOEs are involved.

  • Strengthen and enforce public procurement rules with independent audits and clear accountability standards.

  • Launch training programmes and workshops for policymakers, regulatory agency staff, and other relevant stakeholders to deepen understanding of competitive neutrality and its practical benefits.

  • Collaborate with international organisations (such as the OECD) to benchmark against global best practices.

  • Set up mechanisms for periodic independent evaluations of market conditions. Such reviews could be tasked with auditing compliance, assessing the competitive impact of state-led enterprises and recommending policy adjustments.

• Enhance regulatory specialisation – consider applying a more strict separation between competition enforcement and market regulation.

9.3.6. Competition advocacy

• Carry out an impact assessment of current advocacy efforts to assess their effectiveness and use the information to use a more systematic approach to advocacy.

• Adopt and publish guidelines for competition compliance for market entities.

• Establish public consultations for competition-related regulations and reforms.

• Encourage systematic use of market studies to inform enforcement and advocacy.

• Extend the timeframe to conduct market studies, and consider abolishing the time constraint altogether.

• Consider introducing a fee for submissions of acts of anti-monopoly compliance to the Agency.

9.3.7. Institutional co-operation

• Increase the staffing of the International Co-operation Unit within the Agency, to ensure that the development and follow-up of international co-operation initiatives, including cross-border enforcement, are adequate.

• Consider introducing an information gateway for the exchange of confidential information with other agencies without the need to seek a prior waiver, and include provisions allowing for investigative assistance.