Indonesia – Updated Authority And Power For The Business Competition Supervisory Commission.
Near the end of his presidential term, President Jokowi issued Presidential Regulation No. 100 of 2024 on the Business Competition Supervisory Commission (“PR 100/2024”) to replace the Presidential Decree No. 75 of 1999 as amended by Presidential Regulation No. 80 of 2008 (“PD 75/1999”). In essence, PR 100/2024 regulates the same matter as PD 75/1999 but in more polished terms. This publication will summarize the key highlights regulated under PR 100/2024.
Authority
Similar to the regulations under PD 75/1999, Articles 2 and 3 of PR 100/2024 regulate that the Business Competition Supervisory Commission (Komisi Pengawas Persaingan Usaha or “KPPU”) tasks are to carry out: (i) assessment over agreements, businesses, and the abuse of dominant positions; (ii) executive functions over their authority; and (iii) administrative functions. The PR 100/2024 specifically regulates that KPPU is mandated to do the following:
- Conduct assessments over agreements that may give rise to monopolistic practices and/or unfair competition as ascribed in Article 4-16 of Anti-Monopoly Law, inter alia, oligopoly, price fixing, special consumer prices, predatory pricing, distribution of territory, boycotts, cartel, trust, oligopsony, vertical integration, closed agreements, and agreements with foreign parties;
- Provide evaluations over businesses and/or the business owner’s action that may result in monopolistic practices and/or unfair competition as given in Article 17-24 of Anti-Monopoly Law, inter alia, monopoly, monopsony, market manipulation, predatory pricing, etc;
- Analyse the existence of an abuse of dominant position that may give wake to monopolistic practices and/or unhealthy competition as mandated by Article 25-28 of Anti-Monopoly Law, inter alia, discrimination and trading manipulation, limiting market and techonology development, having concurrent positions, share ownerships, mergers, consolidations, and acquisition;
- Execute their authority in the form of (i) receiving reports from the public or businesses; (ii) conducting research should there be an indication of monopolistic practices or unfair business practices; (iii) conducting research and assessments from such reports; (iv) providing their conclusion on the existence of monopolistic and unfair practices; (v) summoning business owners, witnesses, and expert witnesses about a breach of the Anti-Monopoly Law; (vi) requesting prosecutors to aid with the summons of the parties above; (vii) and providing administrative action for business owners’ breach of the Anti-Monopoly Law;
- Provide the government with recommendations and considerations for the government regarding their policies regarding monopolistic practices and/or unfair competition;
- Provide guidelines and publication about the Anti-Monopoly Law;
- Provide periodic reports on the working result of KPPU to the President and the Legislative Counsel;
- Supervise partnerships under the applicable laws and regulations.
Internal and Procedure
Though their authority remains similar to PD 75/1999, PR 100/2024 has revamped KPPU with quite an upgrade for them to govern their internal matters and procure a binding decision. Previously, Article 8-9 of PD 75/1999 merely dictated that KPPU shall have a structure of: (i) at least 7 KPPU members and the (ii) secretary. All of their job responsibility would ultimately be determined by the KPPU’s decree.
PR 100/2024 provides an update to such regulation by regulating more detail on the secretary function. KPPU’s secretary position shall now be implemented through a Secretary-General, with which would provide support over administrative and technical matters, by (i) maintaining coordination, (ii) providing plans, programs and reports, (iii) providing guidance and administrative support for the organization, staffing and membership, finances, internal affairs, cooperation, public relations, archiving, and documentation, (iv) coordinating and preparing regulations, legal advocacy, as well as its organization and procedure, (v) carrying out management of state-owned goods/state wealth and governmental goods/service procurement; (vi) providing technical assistance in monopolistic practices and/or unfair practices; etc.
The Secretary-General would be divided into a maximum of 5 bureaus, which may be further divided into 3 directorates per Article 10. Further, Article 11 provides a requirement for a monitoring division for internal assessment of the organisation and workload. By such addition, KPPU and their secretary would, at the very least, have a well-deserved amendment to their structure, either to reduce and divide workload or to provide a clear boundary over their responsibility. PR 100/2024 regulates that after its issuance, all KPPU staff should carry on their tasks and functions until the completion of the procurement and appointment of the members of the Secretary-General.
In a similar spirit to PD 75/1999, the KPPU shall still be allowed to form a working group as they require, which may include professionals and experts of the respective fields required to aid in specific tasks and functions. Regardless of their experience, it is natural that all KPPU members would never own mastery over all industries. Needless to say, with the rapid pace of growth and innovation coming into all sorts of markets, this policy would always be necessary in aiding the goals of the organization.
Other provisions concerning the independence of the KPPU members remain the same as regulated under the previous regulations.
Conclusion
To summarize the foregoing, PR 100/2024 currently provides KPPU with an overhaul of its organization. By introducing a Secretary General and allowing a clear division over their bureaus and directorates, there would eventually be a clear-cut approach to the organisation’s responsibilities. Moreover, a revamp of their internal mechanisms would hopefully aid in preventing monopolistic and unfair business practices.
For further information, please contact:
MetaLAW, Legal Consultant, Jakarta, Indonesia
general@metalaw.id
1 This point was not previously regulated specifically under PD 75/1999 but it is already implied under the Indonesian Anti-Monopoly Law (UU No. 5 Tahun 1999 tentang Larangan Praktek Monopoli dan Persaingan Usaha Tidak Sehat) as lastly amended by Law No. 6 of 2023.
2 Article 6-9 of PR 100/2024.
3 Article 13 PR 100/2024.
