Indonesia
Answer ... Dominance is regulated under Law 5/1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition (‘Competition Law’), as amended by Law 11/2020 on Job Creation (‘Omnibus Law’). Following the Competition Law, the Commission for the Supervision of Business Competition (KPPU) - the authority responsible for enforcing the Competition Law - has issued the following commission regulations (CRs) and other instruments:
- CR 7/2009 on Guidelines for Implementing Article 26 (Interlocking Directors) under the Competition Law;
- CR 6/2010 on Guidelines for Implementing Article 25 on the Abuse of a Dominant Position of the Competition Law;
- CR 3/2011 on Guidelines for Implementing Article 19 d. (Discriminatory Practice) of the Competition Law;
- CR 5/2011 on Guidelines for Implementing Article 15 (Closed Agreements) of the Competition Law;
- CR 6/2011 on Guidelines for Implementing Article 20 (Predatory Pricing) of the Competition Law;
- CR 7/2011 on Guidelines for Implementing Article 27 (Share Ownership) of the Competition Law;
- CR 11/2011 on Guidelines for Implementing Article 17 (Monopolistic Practices) of the Competition Law;
- CR 3/2012 on the Second Amendment to CR 13/2010 on Guidelines for Mergers or Consolidations of Businesses and Taking Over Company Shares which may Result in Monopolistic Practices and Unhealthy Business Competition;
- CR 3/2019 on the Assessment of Mergers or Consolidations of Business Entities, or Acquisitions of Company Shares which May Result in Monopolistic Practices and/or Unfair Business Competition;
- CR 2/2021 on the Imposition of Sanctions for Violation of Monopoly Practices and Unfair Business Competition;
- the 2020 KPPU Guidelines for the Assessment of Mergers, Consolidations or Acquisitions; and
- Government Regulation 44//2021 on the Implementation of the Prohibition of Monopolistic Practices and Unfair Business Competition, one of the implementing regulations of the Omnibus Law.
Indonesia
Answer ... The Competition Law applies to all sectors. Some specific rules apply - for example, a higher threshold applies for merger control and filings in the banking sector.
In sectors which are classified as being for the public interest under Articles 50 and 51 of the Competition Law, several exemptions are available for:
- actions and/or agreements intended to implement applicable laws and regulations;
- agreements related to IP rights, such as licences, patents, trademarks, industrial product designs, integrated electronic circuits, trade secrets and franchise agreements;
- agreements that set technical standards for goods or services that do not inhibit or impede competition;
- agency agreements that do not require any resale price maintenance;
- cooperation agreements for research to improve the living standards of society at large;
- international agreements that have been ratified by the Indonesian government;
- agreements relating to exports of goods or services that do not disrupt domestic needs or supplies;
- agreements between small business enterprises;
- agreements made by and between cooperatives aimed specifically at serving their members; and
- monopolies and/or concentrations of activities relating to the production and/or marketing of goods and or services which control the livelihoods of the public and production branches which are important to the state and are regulated by law and administered by state-owned enterprises and/or agencies or institutions established or appointed by the government.
Indonesia
Answer ... The Indonesian competition legislation is mainly intended to protect economic interests and, according to the Competition Law, has the following aims:
- Economic development must be directed at the realisation of public welfare;
- Democracy in the economic field requires that equal opportunities be provided to all citizens to participate in the production and marketing of goods and services, in a business climate that is healthy, effective and efficient so as to promote economic growth and the operation of a fair market economy; and
- Everyone doing business in Indonesia must be in a healthy and fair competition situation, so as not to cause a concentration of economic power in certain business actors.
Indonesia
Answer ... The KPPU - the institution responsible for enforcing the Competition Law - was established in 2000 and is recognised as a state auxiliary organ that conducts administrative law enforcement. The KPPU has the following authorities:
- to accept reports from the public and business actors regarding the alleged occurrence of monopolistic practices or unfair business competition;
- to investigate allegations of monopolistic practices and unfair business competition;
- to conduct investigations into and examinations of suspected cases of monopolistic practices and unfair business competition resulting from its research;
- to summon business actors which are suspected of having violated the Competition Law;
- to summon and present witnesses, expert witnesses and anyone that is deemed to have knowledge of a Competition Law violation;
- to request information from government agencies in connection with investigations and examinations;
- to obtain, examine and assess letters, documents and other evidence for its investigations and examinations;
- to decide and determine whether any loss has been suffered by other business actors or the public;
- to convey its decisions to business actors suspected of engaging in monopolistic practices or unfair business competition; and
- to impose sanctions in the form of administrative actions against business actors that violate the Competition Law.
Indonesia
Answer ... In 2020, approximately 60% of the cases that KPPU handled were late notification cases and 13 of the 15 cases it handled were initiated by the KPPU. There were 39 active cases in 2020, only seven of which were market domination cases.
One of the most widely discussed cases in 2020 involved PT Solusi Transportasi Indonesia (‘Grab’) and PT Teknologi Pengangkutan Indonesia (TPI). The case was initiated by the KPPU based on the results of its initiatives and was taken to the investigation stage due to alleged vertical integration (Article 14 of the Competition Law) and discriminatory practices (Article 19d of the Competition law). Grab - a ride-hailing application provider - entered into an agreement with rental transportation company TPI. It is alleged that the agreement provided Grab with an opportunity to create an exclusive channel that would make it easier for Grab drivers registered with TPI to obtain customers compared to non-TPI registered drivers.
On 2 July 2020, the KPPU declared that Grab and TPI had violated Articles 14 and 19d of the Competition Law. Grab was fined IDR 7.5 billion for the Article 14 violation and IDR 22.5 billion for the Article 19d violation; while TPI was fined IDR 4 billion for the Article 14 violation and IDR 15 billion for the Article 19d violation. However, this decision was subsequently overruled by the South Jakarta District Court. The KPPU appealed unsuccessfully to the Supreme Court and Grab and TPI were thus released from the fines.