Overview of the law and enforcement regime relating to cartels
Under Republic of Indonesia Law Number 5 of 1999 regarding Monopolistic Practices and Unfair Business Competition (the Indonesian Competition Law or "ICL"), cartels are regulated as follows.
Law No. 5 defines an "agreement" as "an action by one or more entrepreneurs to bind themselves to one or more other entrepreneurs under any name, whether entered into in writing or not".
Under the ICL, cartel behaviour falls under several articles, as follows:
|(a)||Article 5, which
prohibits price-fixing agreements between competing business
actors, and states that:
"Business actors are prohibited from entering into any agreement with competitors in order to fix prices for certain goods and/or services to be borne by the consumers or clients in the same relevant market";
Article 5 of the Anti-Monopoly Law, however, provides two exemptions to this rule: (a) that business competitors may agree on a price within the framework of a joint venture; or (b) if mandated by law.
Given its wording, Article 5 follows the so-called per se illegal doctrine, i.e. investigators from the Business Competition Supervisory Commission (KPPU) will require no further investigation into the practice's actual effect on the market or the intentions of individuals who are engaged in the practice in order to assess a violation.
Under KPPU Regulation Number 4 of 2011 regarding Guideline to Article 5, price-fixing is a violation of the ICL because it eliminates competition within the market. In a competitive market, the sales price of goods and services moves toward the marginal cost of production and the production amount of the goods and services will increase accordingly. A competitive market will be efficient and benefit consumers. Further, the effect of price-fixing is basically the same as in a monopoly. Suppliers controlling monopolies obtain monopolistic profits. Price competition is eliminated through price-fixing.
Under a price-fixing arrangement, however, a group of suppliers or suppliers and buyers together agree to maximise the selling price (to maximise income), to lower prices (as a barrier to entry) or to stabilise prices (to avoid price wars). In doing so, final consumers do not benefit from productivity gains, economies of scale, or competitive price movements.
In line with this description, price-fixing must be regarded as a form of collusion. Thus, price-fixing which is prohibited in accordance with Article 5 is price-fixing which arises from an agreement between two or more parties. Without such an agreement, any similarities in prices set between business actors in the same market cannot be regarded as a violation of Article 5.
Competitively speaking, collusion is any agreement to restrict competition between business actors which would otherwise be competitors, to exert a common effect upon a relevant market.
Under ICL Article 5, price-fixing covers not only fixing of the final price, but also covers agreements on price structures or pricing schemes. Therefore, prohibited price-fixing does not always mean the imposition of the same final price to consumers, but may take the form of an agreement on profit margins (the difference between the selling price and production cost).
In general, forms of price-fixing covered under Article 5 are, among others:
To uphold circumstantial evidence, the investigator requires additional factors ('plus factor') to differentiate parallel business conduct from illegal agreements. In other words, the KPPU cannot make a finding of violation on the basis of circumstantial evidence alone.
The best verification method is to use both direct and indirect evidence. The best use of indirect evidence is by combining communication evidence and economic evidence. Analysis of the market structure is conducted by the investigator to determine whether the relevant market would be supportive of collusive behaviour. If so, indirect evidence may be used as an initial indication of the existence of coordination in the relevant market which can be used as an indication of violation of Article 5 of Law No. 5 of 1999.
Given the above, after the KPPU investigator obtains sufficient evidence (at least two elements of proof) based on the facts found during the investigation, the question will be whether there is evidence of an agreement, either direct or indirect. If the evidence obtained by the investigator is direct evidence, the KPPU investigator will have a good chance of convincing the Commission Panel that the price-fixing has occurred. On the other hand, if the evidence obtained by the KPPU investigator is indirect, it is then necessary to analyse communications and economic evidence. Analysis of communication evidence indirectly indicates the agreement. The use of economic analysis evidence becomes one of the important keys in indirect evidence, i.e. to prove the existence of an agreement. Economic analysis plays its role to infer coordination or agreement among the business actors in the relevant market
By way of example, a KPPU decision regarding price-fixing was issued in 2003, a KPPU initiative case regarding tariff prices on the container route Jakarta-Pontianak- Jakarta. According to the KPPU, the existence of price-fixing was proven by the mutual agreement between PT Perusahaan Pelayaran Nusantara Panurjwan, PT Pelayaran Tempuran Emas, PT Tanto Intim Line and PT Perusahaan Pelayaran Wahana Barunakhatulistiwa.
According to the cartel participants, the agreement was entered into to avoid cut-throat competition between the business actors. The KPPU decided the price-fixing on tariffs on the Jakarta-Pontianak-Jakarta container route violated Article 5 and revoked the price-fixing agreement.
|(b)||Article 9, which
prohibits business actors from dividing marketing territory (market
allocation) of goods and services, states:
"Business actors are prohibited from entering into an agreement with its business competitors with the intention to divide the marketing areas or market allocation of the goods and/or services that may cause monopolistic practices and/or unfair business competition."
Article 9 assumes the existence of an agreement between business actors. The application of Article 9 depends on 3 (three) criteria: the parties are business actors, compete with each other and enter into a relevant arrangement. In the distribution area of the market, the business competitors allocate market share to each buyer according to local criteria, thereby limiting competition between them. Therefore, it will be easier for business actors to increase prices or reduce production to increase profits.
A market allocation agreement is made when business actors enter into a mutual agreement that ends up limiting the distribution of the same/similar/complementary goods and services in a particular area. The forms that this type of agreement can take are, among others, an obligation to supply certain goods and services and not others in certain areas and not in others, not doing advertising campaigns, refraining from aggressive trading practices, maintaining certain sales distribution channels, and maintaining particular traders in certain areas.
A market allocation agreement will only be effective if the consumers have no ability to move from one area to another area or find a substitute of the goods and/or services. Basically, market allocations between business actors will not only impose economic losses on the consumer but also on efficient business actors. The business actors will be restricted to expand their businesses and markets and will lose their opportunity to increase market share.
Article 9 subscribes to the so-called rule of reason doctrine, i.e. to prove a violation, the KPPU investigator must examine the underlying reasons for the arrangement as well as the existence of monopolistic practices or unfair business competition caused by the arrangement, or whether the business actors have an acceptable reason which increases consumer benefit, such as the certainty of the existence of supply at competitive prices. An example of a market allocation agreement handled by the KPPU in 2008 was for the market allocation for the person in charge of technical matters for the electrical installation construction business in South Sulawesi. According to the KPPU, the existence of the market allocation was proven by the agreement between Boards of Management of electricity and mechanical associations in Indonesia, particularly, between associations in South Sulawesi.
As a result of the market allocation agreement, installation companies were not able to use another person in charge, other than the one allocated to its area. According to the business actors, the market allocation agreement was entered into primarily to increase the safety and security of electrical installations and improve resources.
However, in its decision, KPPU struck down the market allocation agreement and prohibited the business actors from entering into another market allocation agreement.
|(c)||Article 11, which
prohibits business actors from establishing a cartel to control the
production and/or marketing of products, states:
"Business actors are prohibited from entering into any agreement with a competitor with the intention of infl uencing the price by determining the production and/or marketing of goods and/or services, which may cause monopolistic practices and/or unfair business competition."
For an agreement to violate Article 11, the agreement must be among competitors. Therefore, an Article 11 violation depends on three criteria: the parties must be business actors; they must be competitors; and they must have concluded a relevant agreement. Given its wording, Article 11 subscribes to the so-called rule of reason doctrine, i.e. to prove the violation, the KPPU investigator must examine the underlying reasons for the arrangement as well as the existence of monopolistic practices or unfair business competition caused by the arrangement.
Under Article 1 (2), the term 'monopolistic practices' means the centralisation of economic power by one or more entrepreneurs creating control over the production and/or marketing of certain goods and/or services, resulting in unfair business competition which can injure the public interest. Under Article 1 (6), unfair business competition means competition among entrepreneurs in their production activities and/or in marketing goods and/or services, conducted in a manner which is unfair or contradictory to the law or which hampers business competition.
Forming a cartel is a strategy where business actors will enter into a horizontal agreement to regulate production and marketing to infl uence the price of product. Cartels will be created more easily if the participants are companies of comparable size. Only then, production quota arrangements or price stipulations may be achieved because the production capacities and costs among the companies are similar.
Homogenous goods or services may not support diverse consumer preferences and therefore, pricing competition will be the primary effective competitive variable. Accordingly, the business actors in the relevant market will be more likely to be tempted to engage in cartels to avoid price wars which may jeopardise their profits. To find out the level of customers' preference and determine the degree of product homogeneity in a market, KPPU investigators will conduct surveys.
A relatively high entry barrier for newcomers will strengthen a cartel. There are few opportunities for a newcomer to fill gaps in strongly cartelised markets. Cartels in industries with high entry barriers will therefore generally survive competition from newcomers.
Under Article 30, the KPPU is responsible for the supervision of the application of the ICL, including its enforcement. Its duties include:
However, in its investigations, since the KPPU has no authority to take any action, such as summons witnesses, or conduct searches to find evidence of an agreement, or wiretap the management of a company, the KPPU investigators often face obstacles. Under Article 36 (G) of the ICL, the KPPU needs to cooperate with other authorities (e.g. the Police Force) if they need assistance because, for example, a witness is not cooperative.
Upon receipt of sufficient evidence, the KPPU investigator will examine whether sanctionable cartel behaviour has taken place. If so, the KPPU may impose a sanction according to its authority under the ICL. These include administrative, principal and additional criminal sanctions (see below for the administrative and criminal sanctions). Up until now, the cases and recommendations the KPPU has handled have been triggered by reports or undertaken at the initiative of the KPPU, based on research and studies of strategic sectors of industry, concentration and whether there is an economic aspect. The KPPU has examined, for example, an ocean freight cargo rates cartel, a cooking oil cartel, a cement cartel, a fuel surcharge cartel, a pharmaceutical drug cartel and a tire cartel.
Overview of investigative powers in Indonesia
Under the ICL, in the investigation of a potential violation, the KPPU will act as follows ("Case Handling"):
- carry out an internal study of the findings;
- carry out research;
- monitor the business actor;
- carry out a preliminary investigation;
- file the case dossier;
- hold a KPPU trial; and
- issue the KPPU's decision.
During the Case Handling, the KPPU investigator may conduct a preliminary investigation to obtain more evidence. The KPPU investigator will, among other things, request documents (hard copy or soft copy) from the relevant parties, summons witnesses, the reported party, experts and other related parties as well as conduct an on-site inspection (if necessary). The KPPU will also hold hearings and summons the relevant parties to provide the required documents and information. These hearings are part of the case handling.
The KPPU investigator will also cooperate with other authorities (e.g. the police force) if they need further assistance if, for example, a witness who has been summonsed is not cooperative. Under the ICL, if a party who has been summonsed is uncooperative, for example, he/she refuses to provide the requested documents or information and/or explanation, under Article 48 (3), the KPPU may impose a fine of from IDR 1,000,000,000 (one billion Rupiah, approximately equivalent to US$ 70,000) to IDR 5,000,000,000 (five billion Rupiah) or a prison sentence of up to 3 (three) months. It is worth noting that the fines in the draft new law are generally much higher than in the current law.
Following the preliminary investigation, the KPPU investigator will file the case dossier and decide whether the case should go to trial. Based on the evidence provided in the hearings or trial, the KPPU will decide whether the allegation has been proven and whether a sanction should be imposed.
Since the ICL does not acknowledge the concept of leniency, in its investigation of a cartel, few cartelists admit to their activities and so the KPPU must find evidence of a cartel in the documents which are provided to them. In addition, KPPU investigators must use circumstantial evidence, such as economic evidence, including the profit, turnover, production capacity and other data in financial statements.
In addition to the economic evidence in the financial statements, the KPPU investigator must also use statistical tests to prove a correlation between the cartel agreement and an increase in turnover and production during a certain period related to the cartel agreement, as well as whether there has been any increase in profit since the cartel agreement came into effect, derived from an increase in price, production, or marketing.
Overview of cartel enforcement activity during the last 12 months
So far, during 2015, the KPPU has published 14 (fourteen) decisions – 10 (ten) bid-rigging cases, 2 (two) cartel cases, 1 (one) case of vertical integration and monopoly, and 1 (one) case of a closed and monopolistic agreement. In 2014, the KPPU issued 16 decisions – 7 (seven) bid-rigging cases, 3 (three) cartel cases, 4 (four) merger/acquisition cases, and 2 (two) closed agreements, monopoly and market domination cases.
In 2015, the cartel cases handled by KPPU were price, production and marketing of vehicle tires cartel and a liquefied petroleum gas (LPG) sale price cartel in Bandung and Sumedang. The decision on the price, production and marketing of vehicle tires cartel was issued on 7 January 2015, in which the KPPU declared the existence of the price, production and marketing of vehicle tire Ring 13-16 cartel in Indonesia proven from 2009 until 2012. The KPPU imposed a fine of IDR 25,000,000,000 (twenty-five billion Rupiah – around US$ 1.8m) on each tire manufacturer, i.e. PT Bridgestone Tire Indonesia, PT Sumi Rubber Indonesia, PT Gajah Tunggal,Tbk., PT Goodyear Indonesia, Tbk., PT Elang Perdana Tyre Industry and PT Industri Karet Deli. Again, fines are likely to increase substantially when the new law is passed but the timing on this is currently uncertain.
According to the KPPU, the existence of the cartel was proven by the minutes of meetings between the president directors of the above companies and the minutes of the meetings between their respective sales directors.
The KPPU also found such economic evidence as statistical test results, including among others: the high concentration ratio of the four largest companies' market share (CR4) or the Herfindahl-Hirschman Index (HHI) for passenger car radial (PCR) tires as replacements for Ring 13 and Ring 15, while Ring 14 were characterised by a high HHI. This led to inefficiencies, resulting in losses for consumers. The inefficiency was added to by the price cost margin (PCM), which increased after the agreement between the Indonesian Tire Producers Association (ICMA) members was entered into in 2009.
The cartel participants filed an appeal against the KPPU decision in the Central Jakarta District Court. However, the Central Jakarta District Court upheld the KPPU's decision, but reduced the fine from IDR 25,000,000,000 (twenty-five billion Rupiah) to IDR 15,000,000,000 (fifteen billion Rupiah) for each company.
Another cartel decision in 2015 was on the LPG price cartel in Bandung and Sumedang, issued on 1 April 2015. In this decision, the KPPU sanctioned 17 (seventeen) companies. The KPPU found evidence of a cartel in a written LPG Price-Fixing Agreement in Bandung and Sumedang from 2011 to 2013 signed by the 17 (seventeen) companies.
Based on the evidence, the KPPU concluded that price-fixing was used to maximise profits. In addition, the price-fixing agreement eliminated price competition between the business actors, which resulted in the transfer of consumer surplus to the business actors.
Given the evidence, the KPPU imposed a fine on the business actors from IDR 22,000,000 (twenty-two million Rupiah) up to IDR 10,900,000,000 (ten billion nine hundred million Rupiah) depending on their respective roles in the cartel.
Key issues in relation to enforcement policy
Since its establishment on 7 June 2000, the KPPU has already had 3 (three) management teams, each with a tenure of 5 (five) years. Even though the KPPU has the authority to handle legal enforcement in anti-monopoly issues, in the third management period, the KPPU only focused on such strategic sectors as food, health, energy, infrastructure, including logistics, and banking in 7 (seven) provinces with a high number of transactions, i.e. Jakarta, West Java, East Java, North Sumatera, Riau Island (Batam), East Kalimantan and South Sulawesi.
At the beginning of Muhammad Nawir Messi's leadership (2012-2015), and during Muhammad Syarkawi Rauf's term (2015-2017), the KPPU became more selective in selecting cases that originated from reports of bid-rigging. The plan is to restrict the focus of the KPPU's investigators to handle the cases in the 5 (five) strategic sectors.
In addition, bid-rigging also falls under criminal law, and can therefore also be investigated by other law enforcement agencies, such as the Corruption Eradication Commission, the Police, and the Attorney General. An example of this is the trans-Jakarta bid-rigging case which is also being investigated by the Attorney General.
Key issues with investigations and the decision-making procedure
Under the ICL, the KPPU has the authority to:
- accept reports from the public and/or business actors alleging monopolistic practices and/or unfair business competition;
- search for evidence and initiate preliminary investigations into the business actors to prove the existence of monopolistic practices and/or unfair business competition; and
- impose sanctions on convicted business actors.
The KPPU's investigators are expected to have independence with regard to their power and duties. KPPU investigators must be free from the infl uence of any party, including Commissioners in the KPPU's council. In order to ensure their independence, the KPPU investigators who conduct a preliminary investigation do not play a role in the prosecution of the case.
In addition, in the trial, the parties have equal access to all the documents the KPPU investigators intend to produce as evidence.
The leniency/amnesty regime
Unlike in many other jurisdictions, so far the ICL contains no provisions on leniency/amnesty.
However, in the draft amendments to the ICL, there is a leniency provision which states:
"The KPPU may grant leniency and/or a reduction in the sanction for business actors which acknowledge and/or report the alleged action, among others, cartels."
Administrative settlement of cases
As with leniency, the ICL does not cover any administrative settlement (such as plea bargain) for a cartel or other cases handled by the KPPU. Therefore, if the business actors admit participation in a cartel and submit evidence of a cartel to the KPPU investigator, the KPPU investigator will proceed to the filing and trial steps. If the trial is thereby made shorter, there might be a reduction in the sanction under the KPPU's decision.
Third party complaints
Under Article 38, anybody who knows or suspects that a business actor has violated the ICL, or has suffered a loss as a result of a violation of the ICL, may report it in writing to the KPPU, along with the identity of the reporter, the details of the violation and the damages suffered (if any). To protect the reporter, the KPPU must keep the identity of the reporter confidential.
Upon receipt of a complete report alleging a cartel (with sufficient evidence) and evidence of the damages, the KPPU investigators will go straight to trial without a preliminary investigation. In the trial, the prosecutor is replaced by the reporter.
The ICL is silent on an objection to the report. Therefore, it is important for the KPPU investigator to re-confirm the existence of the cartel before it goes to trial.
Civil penalties and sanctions
Under Article 48, the KPPU has the authority to impose administrative sanctions on business actors who violate the cartel provisions. These include a fine of from IDR 1,000,000,000 (one billion Rupiah) up to IDR 25,000,000,000 (twenty-five billion Rupiah) as well as the damages suffered by the affected parties. These fines will increase substantially when the law is amended.
Under Article 47 and KPPU Regulation No 4 of 2009 regarding Administrative Action Guidelines, the KPPU is required to complete 2 (two) steps in determining the amount of a fine:
- Determine the basic value and make adjustments by increasing or reducing the basic value. The basic value is calculated according to the sales volume achieved by the business actor excluding the Value Added Tax (VAT) and other related taxes in the relevant market.
- Consider the market situation which
may result in an addition to or reduction in the fine based on the
basic value according to an overall assessment, taking into account
all the related aspects, which include:
- whether the business actor continually or repeatedly engaged in the cartel violation, in which case, the basic value will be increased by up to 100%;
- whether the business actor refused to cooperate in the preliminary investigation; And
- regarding the leader or initiator of the cartel, the KPPU investigators will look at the steps the leader or initiator of the cartel took to restrict or threaten other business actors.
The basic value may be reduced if the KPPU decides that:
- the cartel participant has provided evidence of the discontinuance of the cartel after the KPPU's investigator started the preliminary investigation into the cartel;
- the cartel participant has provided evidence of its minimal involvement in the cartel;
- the cartel participant has been cooperative in the case handling process; and
- the cartel participant is willing to sign a statement regarding its intention to change its behaviour and not be involved in other activities which violate the ICL.
The final amount of the fine should not exceed IDR 25,000,000,000 (twenty-five billion Rupiah) or 10% of total turnover during the current business year, whichever is lower.
Right of appeal against civil liability and penalties
Under Article 44, business actors can appeal against a cartel decision, to the District Court (Pengadilan Negeri), within 14 days of receipt of the notification of the decision. If they do not file an appeal by then, they will be deemed to have accepted the decision of the KPPU.
After the District Court, business actors can file an appeal to the Supreme Court (Mahkamah Agung) against the decision of the District Court within 14 days of receipt of the decision of the District Court. If they do not file an appeal by then, the decision of the KPPU will become final and binding. If the final and binding decision is not complied with, the KPPU can submit it to the police to carry out an investigation under the prevailing regulations. This decision will be treated as sufficient preliminary evidence for the investigator to conduct an investigation.
Under the ICL, the sanctions available upon conviction of participation in a cartel include:
- a fine of from IDR 1,000,000,000 (one billion Rupiah) up to IDR 25,000,000,000 (twenty-five billion Rupiah);
- revocation of the cartel agreement; and
- the determination of the compensation to be paid due to the cartel agreement.
In addition to the above sanctions, under the ICL, for:
- a price cartel violation (Article 5), a criminal fine of from IDR 5,000,000,000 (five billion Rupiah) up to IDR 25,000,000,000 (twenty-five billion Rupiah) may be imposed or imprisonment for up to 5 (five) months; while
- for a production and marketing cartel violation (Article 11) a criminal fine of from IDR 25,000,000,000 (twenty-five billion Rupiah) up to IDR 100,000,000,000 (one hundred billion Rupiah) may be imposed, or imprisonment for up to 6 (six) months.
Further, in addition to the above sanctions, under Article 10 of the Criminal Code, for a criminal cartel offence, the business licence may be revoked, and the directors or commissioners may be barred from these positions for 2 (two) to 5 (five) years.
The ICL does not cover cartels outside the jurisdiction of Indonesia even if they have an impact on the Indonesian economy. Article 1 defines a business actor as any individual or entity, whether a legal entity or non-legal entity, established and domiciled or engaging in activities within the jurisdiction of the Republic of Indonesia, either individually or jointly through agreements, engaged in various kinds of business activities in the economic sector.
However, following the meeting with the Korean Fair Trade Commission ("KTFC"), the KPPU entered into a cooperation agreement on 8 November 2013 which focuses on the following four aspects: enforcement of the anti-monopoly law, regular dialogues, exchanges of information through direct communications, and technical assistance. This cooperation is important because Korea is one of Indonesia's biggest business partners and one of the biggest investors in Indonesia through more than 2,100 (two thousand one hundred) companies in Indonesia.
Developments in the enforcement of the antitrust laws
Given the prioritisation of 5 (five) strategic sectors, recently, President Joko Widodo ordered the KPPU to investigate the alleged beef and rice cartels in the food sector. The KPPU investigators are now looking at the alleged beef cartel and have summoned the employees of a slaughterhouse. Meanwhile, according to its official website, the KPPU is also currently investigating an alleged rice cartel.
A new draft law amending the ICL has been in preparation by the KPPU since 23 September 2014 and is currently being discussed between the House of Representatives (DPR) and the Indonesian Government, but no deadline has been set for the introduction and adoption of the Bill. It will reform the cross-border authority of the KPPU by amending the definition of a business actor. It is also likely that a leniency clause will be included in the proposed competition law. The maximum fine for cartel violations will also be increased to IDR 500,000,000,000 (five hundred billion Rupiah, around US$ 36m at current exchange rates of 1 US$ = Rp.14,000). In addition, any business actor that repeats a cartel violation will have its business licence revoked and placed on the black list.
Originally published by Global Legal Group.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.