Law No. 5 of 1999 on the Prohibition of Monopoly and Unfair Business Competition Practices (Indonesian Competition Law (ICL)) was introduced in March 1999 and entered into force one year later. Prior to the adoption of this law, there was legislation containing competition rules fragmented in numerous laws or regulations but they lacked enforcement power. Thus, promulgation of the ICL as well as the establishment of the national competition agency, officially known as Komisi Pengawas Persaingan Usaha (KPPU), signifies the commitment and effort of the Indonesian government to strengthen the competitive structure of the Indonesian economy and businesses and to eliminate monopoly or unfair business practices that were widely practised between 1970 and the 1990s.
The ICL divides restrictive business practices into three sections comprising prohibited agreements, prohibited conduct and abuse of dominant position. The ICL prohibits agreement to fix prices, establishing predatory pricing, allocating markets, taking part in collective boycotts, joining in trust, engaging in cartels, creating tying-in or exclusive dealing. It also makes certain practices unlawful, such as price and non-price discrimination, refusal to deal, bid rigging, misappropriation of business secrets and other practices which constitute abuse of dominant position. The ICL has also adopted compulsory post-merger notification, which is then supplemented by voluntary pre-merger notification through government regulation. Any violation of these rules can be punished by administrative sanctions as well as criminal sanctions.
Guidelines and relevant regulations
In its early period of enforcement, this law caused controversies as to the background, title of the ICL, categorisation and wording used therein. These controversies have led to numerous complexities in the interpretation and application of the ICL. In view of the aforementioned, the KPPU has issued a number of KPPU regulations to provide guidance to the interpretation and application of specific provisions as set forth in the ICL. From 2000 to date, the KPPU has issued approximately 35 KPPU regulations, many of which deal with guidelines to the application and interpretation of the ICL. Additionally, there are government regulations on mergers and Supreme Court regulations on procedure in appealing against KPPU decisions.
Scope of the ICL
The ICL generally applies to any individual or entity engaging in business or commercial activities. The ICL uses the term ‘business participant’, which includes individuals or corporations, either incorporated or not incorporated as legal entities, established and domiciled or conducting activities within the jurisdiction of the Republic of Indonesia, either independently or jointly based on agreement, in various business activities in the economic field.
The ICL introduces the concept of the ‘group of business participants’, which is not clearly defined but interpreted as having similar elements as a single business participant. Thus, the KPPU has adopted a single economic entity doctrine in certain cases. For instance, the KPPU considers that there is a single economic entity between a parent company and its subsidiaries when subsidiaries are not independent in determining their company policy direction as they have to follow the parent company policy. The degree of autonomy of the subsidiaries can be seen from various factors, such as the control of parent company towards the management of subsidiaries, the benefit of the subsidiaries taken by the parent company and the arrangement of the subsidiaries’ policies in line with the policies of its parent company; on marketing and investment for example.
The consequence of the adoption of a single economic doctrine is that a parent company outside the territory of Indonesia can be considered as liable for the anti-competitive practice of its subsidiaries if the KPPU believes that these companies constitute a single economic entity.
The implementation of the single economic entity doctrine by the KPPU can be found in the Temasek case (2007). The KPPU argued that Temasek and its subsidiaries holding shares in Telkomsel and Indosat, as well as having actual or potential influence in the management of these two biggest cellular telecommunication providers in Indonesia, constituted a single economic entity.
The ICL has provided limited exemptions to certain anti-competitive practices. It exempts anti-competitive conduct or agreements that are intended to implement applicable laws and regulations and agreements related to intellectual property rights or regarding technical standards of a product that do not impede competition. It may also, to some extent, exempt particular agency or export-import agreements. In addition, the ICL also provides exemptions for small businesses and cooperatives aimed specifically to serving their own members and also international agreements ratified by the government.
In order to enhance effective enforcement of the ICL, KPPU has been conferred with various powers that include the power to issue internal guidelines and summon or subpoena individuals, businesses, witnesses and experts, as well as to request documents or information from relevant parties or government agencies. It may also commence investigations based on reports or upon its own initiative, and issue decisions as well as impose administrative sanctions against the responsible businesses. The KPPU, in cooperation with the national police, has the power to perform dawn raids or investigatory searches and seizures.
Rules on procedures or case handling
The KPPU issued KPPU Regulation No. 1 of 2010 on Case Handling Procedures (KPPU Regulation No. 1 of 2010) on 5 April 2010 to supersede KPPU Regulation No. 1 of 2006 on Case Handling Procedures applicable in KPPU (KPPU Regulation No. 1 of 2006). There are several fundamental differences between KPPU Regulation No. 1 of 2010 and KPPU Regulation No. 1 of 2006. KPPU Regulation No. 1 of 2010 has adopted a strict separation of functions within the KPPU institution. In this newly implemented system, there will be a clear separation between the Commission Council, which comprises commissioners of the KPPU whose task is, among others, to examine and make a decision on a case, with the investigators, comprising the KPPU secretariat, acting as plaintiff or prosecutor during the adjudication process before the KPPU. In consequence, the defendant has to go face-to-face with the investigators during a proceeding and the Commission Council stands as ‘the judge’. In general, it is the duty of the investigators of the KPPU to present the case or evidence of any violation. However, KPPU Regulation No. 1 of 2010 also provides an opportunity for an injured business or party seeking for compensatory damages to be the plaintiff before the KPPU’s proceedings. In this case, the plaintiff or its counsel bears the burden of proof. This resembles private litigation generally recognised in the civil court but, in this case, under the KPPU’s roof. The newly adopted system also differs from that of the previous one as it removes the provisions on change upon the behaviour, which allows the KPPU to discontinue the investigation or examination at the preliminary stage if the defendant succeeds in convincing the KPPU on its commitments as well as providing measures to bring to an end the alleged violation, or to pay compensation as a result of the violation.
As of mid-2010, the KPPU had received more than 3,000 reports on alleged violation of the ICL. More than 80 per cent of the reports involved allegation of collusive tendering or bid rigging but most dealt with vertical collusion in several state-owned enterprises. From these reports, the KPPU initiated investigation into approximately 240 cases and issued 189 decisions. To date, the KPPU has also investigated more than 30 cases that derive from its own initiative.
The type and limitation of evidence that may be used by the KPPU to establish the existence of an infringement are stipulated under the ICL. They can be categorised into five types of evidence, comprising witness testimonies; expert testimonies; letters or documents; indications and leads; and testimonies from the alleged responsible businesses:
- witness testimonies: the term witness refers to any person who knows about the alleged infringement and gives testimony before the KPPU hearing;
- expert testimony is information or a statement provided or made by an expert before the KPPU hearing regarding certain aspects or issues with which he or she has expertise and that can be used as evidence in the KPPU proceedings;
- letters or documents that may be accepted as evidence before the KPPU hearing may include authentic documents, privately executed documents, government-issued or public documents, documents containing the business activities of any relevant parties such as financial reports, and other letters or documents that may relate to the case under investigation;
- indications or leads, according to KPPU Regulation No. 1 of 2010, means the knowledge of the Commission Council that is accepted as fact and truth. This definition is somewhat different from the definition under the Indonesian criminal procedural code, which is supposed to have similar legal principles with the case procedural regulations in the KPPU. Under the code, the term ‘indications or leads’ shall be referred to as acts, events or circumstances that have relation either with each other or with the criminal act indicating the act and its perpetrator;
- testimonies from the alleged responsible businesses: KPPU Regulation No. 1 of 2010 does not provide the definition nor the scope of the term testimonies from the alleged responsible businesses, and only specifies that the information reported (to the KPPU) cannot be withdrawn except on good and clear reason and has approval from the Commission Council. Referring to Indonesian criminal procedural code, the defendant’s testimony can be considered as evidence if it is stated during the hearing and comes from what the defendant has carried out, has knowledge of or has personally experienced.
Application of circumstantial evidence
In recent cartel cases, the KPPU has not only used hard evidence such as cartel agreements or statement and testimonies from companies participating in a cartel, but also used circumstantial evidence. Based on KPPU Regulation No. 4 of 2010 on Cartel, circumstantial evidence can be used as evidence indicating the existence of an unwritten agreement to cartel practice among the suspected businesses.
The KPPU and its guidelines describe circumstantial evidence as including evidence of communications (that may not be properly considered as agreement) and also economic evidence. The use of circumstantial evidence requires additional analysis. This includes analysis of the cause or purpose of the pricing policy as well as market structure, such as product homogeneity, existence of close substitutes, readily observed price adjustments, standardised prices, excess capacity, number of sellers and barriers to entry. The analysis may also cover analysis of the market performance data, which may indicate a high level of profits or excessive pricing that cannot be explained by the change in input cost and analysis of facilitating devices, such as resale price maintenance, most highly favoured country and meeting-competition clauses. The application of this rule by the KPPU in certain cases, however, is sometimes unclear and can trigger public debate. Some district courts have rejected the application of this evidence by the KPPU, but these cases are now pending in the Supreme Court.
The KPPU has power to impose administrative sanctions against cartels in the following forms:
- terminating anti-competitive agreements;
- ordering an end to the anti-competitive practices;
- awarding compensatory damages; and
- imposing fines from a minimum of 1 billion rupiahs to a maximum of 25 billion rupiahs.
In addition to administrative sanctions, the ICL has also provided for criminal sanctions against violation of the ICL. Depending on the gravity of the offence, criminal penalties range from 1 billion rupiahs
to 100 billion rupiahs or imprisonment that ranges from three months to six months. There are also additional sanctions which include:
- revocation of business licences;
- prohibition of assuming the position of director or commissioner for at least two years and for no longer than five years against the responsible individual; or
- orders to put an end to certain activities or conduct.
The ICL provides that criminal proceedings will be imposed against those who have committed:
- an obstruction of justice during the investigation process. The ICL has imposed an obligation on businesses to provide information required for investigation or examination by the KPPU;
- failure to comply with the request or summons from the KPPU, which may result in criminal investigation. The investigation will be carried out against failure to comply with the KPPU request as well as against the underlying anti-competitive conduct; and
- failure to comply with the KPPU decision, which will be deemed as an offence that is punishable by criminal sanctions.
Precedent of administrative and criminal sanctions in cartel cases
The most recent case of the imposition of administrative sanctions in a cartel case was for collusive tendering in the Donggi-Senoro case (2010). In this case, the KPPU maintained that three firms - two of which were Indonesian oil companies and the other, which was a Japanese investment company - had engaged in an illegal conspiracy against PT LNG EU through fabricated competition, discriminatory and exclusive practices as well as exploitation of confidential information and beauty contest procedure. The total fines imposed by the KPPU amounted to 31 billion rupiahs. As yet, however, there is no precedent of the imposition of criminal sanctions in a cartel case.
Restricted agreements (cartels)
The provisions on the prohibition of restrictive agreements or cartels are mainly laid down in several articles in chapter 3 of the ICL. The prohibition of cartels under the ICL covers horizontal agreements that include price fixing, market allocation, group boycott, bid rigging and other arrangements and conspiracy or concerted practices that may restrict competition in the market or may cause harm to consumers. The ICL also covers vertical agreements that are generally reviewed under abuse of dominant position cases, such as resale price maintenance, refusal to deal, tying-in and discriminatory practices.
The ICL, like the KPPU, adopts two different approaches in cartel enforcement. Some of the provisions apply a per se illegal approach while the other applies a rule-of-reason approach. The first approach refers to provisions that do not include the phrase ‘which may result in the occurrence of monopoly or unfair business practices’. With this approach, the KPPU does not have to analyse the effect of an agreement on the market as it is considered sufficient to only establish the existence of the prohibited agreement. This is similar to the application of the ‘per se illegality’ rule as applied in other jurisdictions. This applies for price fixing and group boycott. The second approach refers to provisions that include the phrase ‘which may result in the occurrence of monopoly or unfair business practices’. Thus, the ICL seems to require the KPPU to carry out an in-depth analysis as to the effect of the agreements on the market or to competition so as to determine a violation of these provisions.
This approach applies for market allocation, bid rigging and other arrangements, and conspiracy or concerted practices.
Recent updates to cartel cases
As of November 2011, there are a number of updates to several major cartel cases.
Cooking Oil (Case No. 24/KPPU-I/2009)
The case was initiated upon the KPPU claim that the market structure of cooking oil is an oligopoly and the participants had entered into restricted agreement of cartel. This decision has been overturned by the district court and is in proceedings at the Supreme Court.
Fuel Surcharge (Case No. 25/KPPU-I/2009)
The KPPU, in its decision, asserted that it had found an agreement between 13 Indonesian airlines to fix prices based on the fact that there is tendency for a similar fuel surcharge movement between these firms and they had, through business association, entered into an agreement to fix the prices for a number of months. The district court has overturned the decision and shortly after the KPPU filed an appeal at the Supreme Court. Similar to the Cooking Oil case, the KPPU mainly based its appeal on, among other matters, the failure to interpret cartel-related articles on the ICL and the misjudgment in determining the fulfilment of ‘agreement aspects’ under the ICL. To date, the Supreme Court has not issued its decision on the Fuel Surcharge and Cooking Oil cases.
Anti-hypertension Medicine (Case No. 17/KPPU-I/2010)
In 2009, the KPPU started an investigation against two drug producers in Indonesia, one of which is a group of affiliated companies who owned a patented product and the other, which is a buyer of a patented product along with several foreign companies, upon the allegation of cartel practices. The KPPU, as derived from its decision, argued that all of the reported parties had entered into a cartel for the patented product. All of the reported parties appealed this decision to the district court, and later the court overturned it, considering, among other things, the lack of decisive proof that the KPPU had failed to provide. The case is now in the Supreme Court as the KPPU has filed an appeal because of the failure to apply the law within the district court decision.
Donggi-Senoro (Case No. 35/KPPU-I/2010)
In this case, the KPPU maintained that three firms, two of which were Indonesian oil companies and the other a Japanese company, had engaged in an illegal conspiracy against PT LNG EU through fabricated competition, discriminatory or exclusive practices and exploitation of confidential information, as well as beauty contest procedure. The reported parties, however, were not satisfied with the decision and filed an appeal. Later, the district court rejected the appeal and reiterated the KPPU decision that will have the effect of persuading the reported parties to submit an appeal to the Supreme Court.
Mergers and acquisitions
The legal basis for merger control in Indonesia is in articles 28 and 29 of the ICL. Article 28 prohibits business entities from engaging in mergers or consolidations or from acquiring shares of other companies that may lead to anti-competitive effects. Article 29 provides the basic rule on the obligation to notify a merger that meets certain criteria (post-merger notification).
These two provisions on mergers are further explained in Government Regulation No. 57 of 2010 on Mergers or Consolidations of Business Entities and Acquisitions of Shares of Other Companies that may result in a Monopoly or Unfair Business Practices (Government Regulation No. 57 of 2010). The KPPU clarifies further by adopting the KPPU Regulation No. 10 of 2010 on the (Standard) Form of Post-Merger Notification (KPPU Regulation No. 10 of 2010), KPPU Regulation No. 11 of 2010 on Pre-Merger Notification (KPPU Regulation No. 11 of 2010) and KPPU Regulation No. 10/2011 on the Amendment of the KPPU Regulation Number 13 of 2010 on the Guidelines for Mergers or Consolidation of Business Entities and Acquisition of Shares of Other Companies (KPPU Regulation No. 10 of 2011). At the present time, the Supreme Court is apparently preparing a regulation that will lay down the procedure to enforce sanctions and fines against a failure to notify a completed or executed merger. The draft regulation may require that any KPPU decision to impose sanctions against failure to notify a completed merger shall be followed by district court stipulation so as to be effectively enforced.
Since the adoption of Government Regulation No. 57 of 2010 in July 2010, there have been 41 mergers that have been notified to the KPPU. Most of the mergers were notified after their completion and there were only five mergers that followed the pre-merger notification scheme. From all the notified mergers, eight were approved, three were not reviewed as they did not meet the thresholds or were considered as not notifiable and the others are still under review. For mergers of foreign entities, the KPPU has issued its opinion for two of the mergers while three others are still under review. To date, the KPPU has not issued an objection opinion.
Consultation (pre-merger notification)
As the ICL only requires post-merger notification, Government Regulation No. 57 of 2010 provides that companies may voluntarily consult the KPPU about their proposed merger before it is concluded. This procedure is formally known as ‘Consultation’. By introducing this scheme, the KPPU believes that companies can avoid risks that the merger will be subsequently dissolved by the KPPU if it finds that the completed merger has anti-competitive effects. There are three possible KPPU decisions following the Consultation process:
- there is no anti-competitive effect;
- there is no anti-competitive effect if conditions set by the KPPU are implemented by the parties; and
- there is anti-competitive effect.
There is no explanation or precedent to date as to whether or not the merging parties may negotiate the remedies with the KPPU within this procedure.
After the Consultation, the merging parties will still have to follow post-merger notification process, as required by the ICL. The KPPU, however, will not reassess the transaction if it has followed the Consultation procedure. So, as such, it is only a formality. Reassessment will only be carried out if there is material change to the information submitted when the Consultation is made, or there is material change to market condition when post-merger notification is under review. Any material change may result in a different opinion of the KPPU. There is no specific rule on the deadline to conduct a Consultation. Consultation may be carried out at any time before the merger is concluded. However, the KPPU encourages merging parties to consult their merger plan as early as possible as long as there has been certainty of the transaction and sufficient time for the KPPU to complete its pre-merger review.
With a Consultation, the KPPU has a maximum of 30 working days to complete its preliminary assessment and to decide whether a or not comprehensive assessment is necessary. It has a maximum of 60 working days to complete its comprehensive assessment. For horizontal mergers, the KPPU will begin its assessment by measuring post-merger market concentration. The KPPU usually uses the
Herfindahl-Hirschman Index (HHI) to measure concentration. When data is not available to calculate HHI, it will use another concentration measure, such as concentration ratios. In general, the KPPU divides post-merger HHI into two spectrums: Spectrum I (low concentration, with HHI below 1800) and Spectrum II (high concentration, with HHI above 1800). The KPPU will only identify horizontal competition concerns if the post-merger HHI falls within Spectrum II and the delta is more than 150 points. With regard to vertical mergers, there will be no competition concerns if none of the merging parties has a dominant position. The KPPU will not continue with a comprehensive assessment if this condition is satisfied. According to the KPPU guidelines, there will be no competition concern nor a comprehensive assessment in case of conglomerate mergers.
As soon as a merger is formally effective, the merging parties should notify the KPPU by submitting a written notification within or no later than 30 working days as from the date on which the merger becomes effective. In the case of the companies involved in a transaction being all categorised as Indonesia limited liability companies under Law No. 40 of 2007 on Limited Liability Company (Law No. 40 of 2007), the term ‘formally effective’ refers to one of the following conditions:
- approval by the competent minister upon the amendments of articles of association in the case of a merger;
- receipt by the competent minister on notification for particular amendments in articles of association as laid down in Law No. 40 of 2007; or
- legalisation by the competent minister upon the deed of establishment of the company in the case of consolidation.
- In the case of an acquisition of shares of an Indonesian public company, the post-merger notification shall be conducted within 30 working days after:
- the date of the response letter from the Indonesia Capital Market and Financial Institution Agency (Bapepam-LK) related to information disclosure on share acquisitions of the public company if the value of the material transaction is below 50 per cent of the equity of the acquired company; and
- the date of the acquired company letter to the Bapepam-LK on the general meeting of shareholders’ approval over shares acquisition with the value of material transaction of above 50 per cent of the equity of the acquired company.
As regards mergers between foreign companies or mergers involving an Indonesian company not governed by Law No. 40 of 2007, notification is mandatory within 30 working days after the closing or the approval from the competent authority, if such approval is required for the transaction to be legally effective.
Following the filing, the KPPU will issue its opinion within a period of no longer than 90 working days upon declaration by the KPPU on the completeness of all required documents and data. In post-merger notification, there is only one phase of review. It is not a two-phase process as in a Consultation. However, the substantive test method will be the same as that of a Consultation.
There are two possible opinions of the KPPU following a post-merger assessment: firstly, there is no anti-competitive effect; and secondly, there is an alleged anti-competitive effect. If the KPPU opinion is that anti-competitive effect is likely, it will open a formal investigation and decide whether or not the merger should be dissolved. In addition to the dissolution, the KPPU may impose fines on the merging parties of between 1 billion rupiahs and 25 billion rupiahs.
Government Regulation No. 57 of 2010 has set criteria or thresholds for mergers that must be notified to the KPPU. These criteria include:
- the value of total assets of the company resulting from the merger exceeds 2.5 trillion rupiahs; or
- the value of total sales (turnover) of the company resulting from merger exceeds 5 trillion rupiahs.
These thresholds apply for both pre-merger and post-merger notification. For a merger transaction involving banks, the threshold is much higher. Government Regulation No. 57 of 2010 sets 20 trillion rupiahs in combined assets as the threshold for notification. The thresholds are national in scope; therefore global sales or assets cannot be used in the calculation. With regard to assets, only assets located in Indonesia will be taken into account and, with regard to sales, products for export will not be included in the calculation.
The nationwide turnover or assets are determined by the calculation of assets or turnover of the merging parties as well as companies directly or indirectly controlled by the merging parties or those directly or indirectly controlling the merging parties. In the case of acquisition of shares, the KPPU will not consider the assets or turnover of the seller and only calculate the assets or turnover of the companies directly or indirectly controlled by the target. The assets or turnover of sister companies or companies within the same parent undertaking that do not control or fall under the control of the merging parties shall not be included in the calculation of the thresholds.
Sanctions for failure to notify
The KPPU has power to impose fines in the amount of 1 billion rupiahs per day, with a maximum of 25 billion rupiahs in total, if the merged entity fails to notify the merger within 30 working days after the merger is completed.
Monitoring and clarification
The KPPU carries out periodic monitoring to obtain information on whether there are merger transactions satisfying the requirements but that have not been notified to the KPPU. Information about transactions may come from public complaints, the mass media, an official letter from related institutions or other relevant sources. If during the monitoring phase the KPPU finds a merger that supposedly should be notified, it may invite the relevant companies to clarify the merger and, additionally, provide particular information or documents. The KPPU may exercise its authority to initiate a formal investigation if the relevant companies are considered as non-cooperative parties during the process.
Pursuant to the Merger Rules, a foreign merger may be simply referred to as a merger concluded between foreign companies. Therefore, if one of the merging parties is an Indonesian company (the company being duly established under Indonesian law) then such a merger will not be deemed as a foreign merger. The KPPU has emphasised that, essentially, it has the authority to control any merger that affects competition in the domestic market. The KPPU thus affirms that it has the authority to review or decide on a foreign merger, taking into account the effectiveness of such enforcement.
The KPPU has exercised its jurisdiction over foreign mergers in two cases, GDF Suez-International Power and Mitsubishi Corporation-Tomori E&P Limited, while three others are still under review. The KPPU also performs several monitoring and clarifications over foreign mergers in which, for instance, it has invited the relevant companies in the Microsoft-Skype merger to clarify the transaction before the commission.
A foreign merger shall be notified to the KPPU if it meets all of the following conditions:
- the presence of the company or companies in Indonesia: for a foreign merger, notification is required if both parties to the transaction (the purchaser or acquiring company and the target company) have operations, directly or indirectly, in Indonesia, for example, through the establishment of a subsidiary company in Indonesia. A notification is also required if at least one of the merging parties has operations in Indonesia and the other party has sales in Indonesia. The Merger Rules only describe the term ‘sale’ as ‘nationwide turnover/sales’ but they do not specify further the definition and scope of ‘nationwide turnover/sales’. This, to some extent, may cause ambiguity in determining the presence and the thresholds;
- the thresholds: the application of thresholds for foreign merger is no different to what applies to domestic mergers as explained above;
- between unaffiliated companies: it is no longer necessary to notify a foreign merger if it is concluded between affiliated companies. Under the Merger Rules, the term ‘affiliated’ means:
(a)a relationship between companies, directly or indirectly, controlling or under the control of such company;
(b)a relationship between two companies controlled, directly or indirectly, by the same party; or
(c)a relationship between the company and its main shareholder. The KPPU defines a ‘main shareholder’ as a party, directly or indirectly, owning at least 20 per cent of the voting rights or less than such amount as stipulated by the Bapepam-LK; and
- if it is concluded outside Indonesian territory.
Cooperation with other competition agencies
The KPPU has established cooperation with several foreign competition authorities such as the Japan Fair Trade Commission, the Korean Fair Trade Commission and the US Federal Trade Commission; while the Australian Competition and Consumer Commission has expressed its willingness to cooperate with the KPPU in the near future. This cooperation, however, is limited to the exchange of information on competition cases and is not specific to merger control.