Suchergebnisse

In general term, cartel is considered as a form of agreement between competitors in a similar industry whose purpose is for maximizing profit only for the members of cartel. The competition authority of Indonesia, Commission for the Supervision of Business Competition (KPPU), is now vigorously fighting against cartel practices in various business fields. There are several principle considerations regarding the establishment of cartel, such as the mechanism of how the cartel works, how to reveal the cartel, and the impact for the competition as well as for the consumers. These understandings are needed in order to handle cartel practices appropriately, both from the aspect of prevention as well as law enforcement. Preventive action is carried out by establishing rules and policies whose purpose is for giving a limitations regarding the permissible or impermissible actions when the business actors of similar business gather, as is usually organized by any trade associations. Repressive action, as an action to make deterrent effect, can be executed by penalizing them a significant fine, even by a criminal threat. Most of all countries that are doing an action to fight against cartel will face various obstacles and challenges in order to overcome this practice. The states which are incorporated in a regional economic zone, such as Association of Southeast Asian Nations (ASEAN), have performed a cooperative action that agrees together to fight against cartel. This cooperation is executed by doing strategic steps from the level of investigation, starting from detecting, doing a pre-investigation appraisal, investigation planning and resourcing, as well as making strategies for investigation progress and preparing written recommendations. One of the efforts in order to handle cartel practices which is regarded efficient enough is called leniency program, where the Indonesian parliament is still drafting it in the amendment of its Anti-Monopoly Law

Indonesian Anti-Monopoly Law provides for the exemption of business actors which belong to the category of small scale businesses (Article 50 sub-article h of Law Number 5 Year 1999). This is the materialization of the law's objective, namely ensuring equal opportunities to do business for large-, medium-, and small-scale entrepreneurs. Further assurance for the protection of small businesses is provided for in Law Number 20 Year 2008 concerning Medium, Small, and Micro Enterprises, giving mandate for the implementation of supervision to the business competition authority, namely KPPU (Article 36 paragraph 2). Small-scale business actors which play a role in Indonesia's trading system include, among others, business actors engaging in the retail industry. The retail industry started to emerge with the proliferation of modern retail businesses in urban areas based on the franchise concept. In fact, there have been certain large retail businesses which have been proven of violating the Anti- Monopoly Law, particularly the prohibition of abusing dominant position. With their presence, modern retail businesses have gradually replaced traditional retail businesses which generally include small-scale enterprises (SMEs). The above mentioned government policy on protecting small industries has been based on juridical, political as well as economic considerations. From the juridical point of view, there is a law concerning the treatment of medium, small and micro businesses (MSMEs). At the same time, the political and economic consideration is that the government has the task of materializing a just and prosperous society based on the 1945 Constitution of the Republic of Indonesia through national economic development based on economic freedom.

Merger control in Indonesia is based on the Indonesia Anti-Monopoly Law No.5/1999 and it is specifically set forth in Government Regulation 57/2010 providing for mandatory notification to the competition authority under the threat of fines for late reporting. It is rather unique compared to merger regulations in general which tend to focus on pre-merger notification. Companies meeting certain thresholds based on assets or sales value are required to conduct notification. The process of merger review has to go through the formal (procedural) and substantive stages. The formal/procedural stage is concerned with the fulfillment of certain qualifications such as meeting the criteria as an effective merger acquisition, affiliations, and exceeding the thresholds. The substantive stage involves the assessment of entry barriers, potential anti-competition conduct, inefficiencies and the prevention of bankruptcy. The Commission's opinion issued in the final stage of assessment can be in the form of no objection, objection, or conditional no objection. Any violations of Law No.5/1999 found by the Commission are processed further through the case examination process, in compliance with the prevailing rules. GR 54/2010 also provides for voluntary pre merger notification. The incentive is that once the Commission's no objection letter is obtained, there is no need to go through examination in the mandatory post merger notification process. However, the Commission's opinion is non-binding. Therefore, business actors still prefer to conduct post merger notification despite the potential exposure to relatively high fines. Limited availability of data and a lack of awareness among business actors are some of the main challenges in the implementation of GR 54/2010. Cooperation and policy harmonization with relevant agencies such the Ministry of Law and Human Rights, the Capital Markets Supervisory Agency and Bank Indonesia need to be explored in the future.