Vol.4, No.04, April 2023
E-ISSN: 2723-6692
P-ISSN: 2723-6595
http://jiss.publikasiindonesia.id/
Journal of Indonesian Social Science, Vol. 4, No. 04, April 2023 349
Analysis of Delayed Notification of Acquisition of Shares by Business
Players Using the Cost Benefit Analysis and Regulatory Impact
Analysis Methods
Ani
Universitas Pelita Harapan
Email: [email protected]
Corresponding Author: [email protected]
ARTICLE INFO
ABSTRACT
Submitted
:02-04-2023
Received
:05-04-2023
Approved
:15-04-2023
Business Competition Law in Indonesia adheres to a post-notification
system which is carried out after the effective date in the process of
taking over (mergers and acquisitions) of a company. Based on data on
the KPPU's website, during the period from 2012 – 2022 there were 45
cases of fines for late notification in the merger and acquisition process
with a total fine of Rp. 118,765,000,000. Data on company acquisition
case decisions from 11 February 2020 to 11 April 2021, found delays
in notifications of mergers and acquisitions with delays ranging from 2
(two) days to more than 8 (eight) years. One of the mitigating reasons
in the KPPU's decision was the ignorance of business actors regarding
the obligation to submit post-notification of company takeover to
KPPU. In order to avoid this problem, in the future, it is expected that
KPPU or the Government can amend the provisions concerning post-
notification obligations to become pre-notification obligations.
Keywords: Merger,
Notification, Lateness,
Attribution-ShareAlike 4.0 International (CC BY-SA 4.0)
1. Introduction
Fair business competition is a means of creating an efficient condition in the economic
sector which must continue to be pursued in a systematic and planned manner, accompanied
by the preparation of business competition policy regulations concerning the prevention and
prosecution of business actors suspected of engaging in monopolistic practices and unfair
business competition. Strictness in antitrust law policies must also be balanced with concrete
actions in practice so that these policies can be implemented as a corridor that regulates the
business world in Indonesia to avoid monopolistic practices and unfair business competition
(Soeroso, 2011).
Business actors in carrying out their business activities, of course, also want to
increase or maximize their business to strengthen their position in the business market.
There are many ways that can be done by business actors in optimizing existing resources;
such as capital, management technology, and other matters in order to obtain new synergism
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in carrying out business activities that refer to efficiency and productivity, one of which is by
means of a merger or amalgamation of two or more business entities. Companies that carry
out mergers, consolidations or acquisitions of shares actually have similar backgrounds and
objectives, namely to increase efficiency, expand markets, and so on.
Acquisition of shares (acquisition), merger (merger), and consolidation
(consolidation) carried out by business actors are also included in the objects supervised by
KPPU. Business takeover transactions such as acquisitions, mergers and consolidations are
common actions carried out in the business world by companies. These business transactions
generally have the goal of developing a company's business to become even bigger. In
carrying out this there are legal rules that must be obeyed by the company. The legal rules
used for business transactions play an important role in regulating business actors so that
they do not deviate from what companies should do, for example, there is a tendency for
monopolistic practices in the business world (Suhasril & Makarao, 2010).
One way that business actors do to expand their business is by taking over shares.
Business actors are prohibited from taking over shares of other companies if such action can
result in monopolistic practices and or unfair business competition. There are legal rules that
apply regarding the acquisition of shares that must be obeyed by business actors who do this,
namely as written in Article 29 Paragraph (1) of Law Number 5 of 1999 concerning
Prohibition of Monopolistic Practices and Unfair Business Competition, namely "Merger or
consolidation of business entities, or acquisition of shares as referred to in Article 28 which
results in the value of assets and/or sales value exceeding a certain amount, must be notified
to the Commission, no later than 30 (thirty) days from the date of the merger, consolidation
or acquisition.”
Other rules are also written in Article 5 Paragraph (1) of Government Regulation
Number 57 of 2010 concerning Mergers or Consolidation of Business Entities and Acquisition
of Company Shares That May Result in Monopolistic Practices and Unfair Business
Competition which reads “Merger of Business Entities, Consolidation of Business Entities, or
Acquisition of shares of other companies which results in the value of assets and/or sales
value exceeding a certain amount must be notified in writing to the Commission no later than
30 working days from the legally effective date of Merger of Business Entities, Consolidation
of Business Entities, or Acquisition of company shares.” Arrangements regarding the
acquisition of shares, in which business actors are required to report it to the Business
Competition Supervisory Commission (known as KPPU) by giving a notification. Notification
is “a written notification through a form that must be made by business actors to the
Commission regarding the Merger, Consolidation, or Acquisition of company shares and/or
assets after the Merger, Consolidation, or Acquisition of shares and/or company assets is
legally effective.” This is clearly regulated in the applicable laws and regulations related to
antitrust and business competition laws in Indonesia.
The fact is that there are still several cases where business actors who take over
shares are late in giving notification of the takeover of shares to KPPU. So that the business
actors were given sanctions by the KPPU for the delay in notifying the acquisition of shares.
For example, it has been hotly discussed in recent years about large companies of the unicorn
class, such as PT Application Karya Anak Bangsa, known as GOJEK, in the KPPU Case Decision
Number 30/KPPU-M/2020, GOJEK received sanctions for delays in notifying the takeover of
shares. Several other KPPU Decisions related to delays in share acquisition notifications also
often affect large companies, which in the end have to receive administrative sanctions for
delays in share acquisition notifications which should have been avoided before carrying out
a merger, consolidation or share acquisition.
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KPPU itself has claimed that based on the statement written in the KPPU Case Decision
therein, it has taken action in the form of giving a warning letter regarding the obligation to
report notifications that must be carried out by business actors who take over shares. There
are also many legal regulations governing the obligation to provide notification or
notification of share acquisition, from the level of laws, government regulations to Business
Competition Commission Regulations (KPPU) which have also provided similar
arrangements related to notification of share acquisition. This phenomenon has become the
basis for writing a case analysis regarding notification obligations, where in practice there
are still many business actors who violate it on the grounds of ignorance regarding the
required obligations, even though the KPPU has issued a warning letter and also the legal
regulations that exist in Indonesia, have also regulated in detail related to this.
The example in the KPPU's Case Decision regarding the delay in notification of the
takeover of shares in a company has aroused the author's interest in the phenomena that
have occurred in Indonesia because there are still business actors who delay notifications of
takeover of shares even though many business competition laws have regulated this matter.
Regulations made by policy makers seem to have not been implemented properly in the field,
and it becomes a question in itself, whether business actors are not aware of any regulations
related to share takeover notifications, or are they deliberately ignoring existing regulations.
A policy embodied in statutory regulations must go through a well-prepared process.
If not with careful and comprehensive preparation, the legal rules or policies will not create
a deterrent effect for lawbreakers. A method is needed in conceptualizing a policy. For a
regulatory policy to be enforced, it is mandatory to carry out an analysis of the impact of
policies made using methods, one of which is through the Economic Analysis of Law (EAL)
method, in particular through the Cost Benefit Analysis (CBA) and Regulatory Impact
Assessment (RIA) instruments. Cost Benefit Analysis (CBA) is an analytical method that
measures and compares all the benefits that will be obtained, as well as the costs that must
be borne by all recipients of the impact of a policy (Sanjaya et al., 2022). Meanwhile,
Regulatory Impact Assessment (sometimes also called Regulatory Impact Analysis) or
abbreviated as RIA, is a method used in the preparation of a rule which in principle can
accommodate the steps that must be carried out in the preparation of a rule. Thus, this paper
will analyze related to legal regulations regarding delays in share acquisition notifications
and their implementation (Asikin, 2012).
Based on the background of the problems presented earlier, in this writing, the
formulation of the problem is formulated as follows: What are the legal arrangements
regarding the delay in notification of the takeover of shares to the Business Competition
Supervisory Commission (KPPU) Regulations by business actors in the anti-monopoly laws
and regulations in Indonesia? How is the implementation of the Regulations of the Business
Competition Supervisory Commission (KPPU) in regulating delays in the notification of the
takeover of shares by business actors?
2. Materials and Methods
This writing was carried out in a normative juridical manner using the Economic
Analysis of Law (EAL) method which is a fusion between two sciences, namely law and
economics. EAL is an application of economic theory to evaluate the process, formation,
structure and impact of laws and/or policies on society. The purpose of this EAL is to improve
welfare in accordance with Article 33 of the 1945 Constitution.
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Economic Analysis Of Law (EAL)
According to Alain Marciano, legal problems correlate with economic problems. Law
and economics can be understood through basic methodological assumptions, where the rule
of law covers every aspect of life. In political economy, "economics is about institutions in
general, and law in particular. In his publication, Economic Analysis of Law, Richard Posner
defines economics as "the science of human choice in a world with limited resources in
relation to human wants, exploring and examining the implications of the assumption that
humans are rational maximizers of their goals in life, their satisfactions, and their own
interests." . The economic system itself consists of the same people in the legal, social and
political systems. Their behavior is basically a general reflection of the system they live in
(Sugianto & Yahman, 2017).
Posner's EAL also has a moral dimension, in which the goals of law are included,
including correcting injustice and advocating a sense of morality. Legal principles have a
direct correlation with the economic value of moral principles; such as trust, consideration
for others, charity, neighborliness, hard work, avoiding neglect and coercion. Through his
theory of justice, Posner also describes the concept of ethics for society, where he states that
"the most common meaning of justice is efficiency". If a society does not benefit from
economic efficiency, then there has been injustice.
EAL according to Richard Posner is, “Economics as a science of choices made by
rational actors who have self-interest in a world where resources are limited; Modern
microeconomic analysis is that rational actors will try to maximize their wealth from the
limited availability of resources. Based on the assumption that rational individuals will
maximize their own satisfaction, this assumption is applied to economics in the field of law.
The basis of EAL is the theory of efficiency in the allocation of resources where value is
maximized. Economic theory is applied to reconstruct market transactions into the field of
law. His efficiency ideology is called the wealth maximization theory of justice. EAL can be
the foundation of justice theory, where the most common meaning of justice is efficiency. If a
society does not benefit from economic efficiency, then injustice has been perpetrated,
EAL has three main concepts as follows: efficiency, rationality, and fairness:
Efficiency
Efficient results refer to individual satisfaction. Satisfaction is measured by
willingness to pay.The efficiency formula uses the Pareto Superiority rule of efficiency which
occurs when "at least one person is made better off, and no one is made worse off." This
formula uses Pareto Optimality where "nothing can be made better without someone else
being made worse." If one of the alternative Pareto outcomes occurs, the EAL has determined
its efficiency.
Rationality
All individuals and institutions are rational maximizers. Individuals pursue happiness,
and institutions pursue productivity and profitability. Individual and institutional
preferences will be pursued only if the benefits outweigh the costs. This ideology is found in
the economic model of human behavior based on the homo-economic concept.
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The concept is formed based on the assumption that individuals are rational utility
maximizers. These individuals as those who "have a desire, that they will act to satisfy the
desire, that the desire has some regularity, that the order of preferences does not change
radically in the short run, and that, all other things being equal, they prefer what what they
want rather than less."
Justice
The most common meaning of justice is efficiency. A society with the primary goal of
pursuing wealth maximization will develop many other attractive social features. Of the three
EAL concepts above, the first concept of efficiency provides the most comprehensive
information about EAL in terms of maximizing social welfare. If maximum social wealth
occurs; then market, exchange, freedom, and happiness become priceless. The philosophy of
maximizing wealth is not only moral, but also pragmatic. It is clear that people living in a free
market-oriented economy are not only richer than people in a closed economy, but people in
a free market economy also have more dignity, freedom and political rights.
EAL also has the ability to justify legislation through determining economic efficiency.
Posner states that, "A comprehensive economic analysis of law is necessary during the
legislative process because legislation is based on the fundamental assumption that
legislators are rational maximizers of their satisfaction, just like everyone else in society."
The point is that the theory of efficiency is in the allocation of resources and applying
economic theory to reconstruct market transactions into the field of law. Economic Analysis
of Law which is defined as an economic analysis of law or economic analysis of law. Legal
issues remain as objects that are constellation (arranged, built, associated) with basic
economic concepts, reasons and economic considerations.
The aim is to be able to position the nature of legal issues so that the flexibility of legal
analysis (not economic analysis) becomes more elaborated. To realize a country that is
heading for reform, an agenda is needed to build good governance as a legitimacy for
upholding the principles of good governance, namely transparency, pluralism, community
participation in decision-making, representation and accountability. Enforcement of the rule
of law is believed to increase economic growth (Supancana, 2017).
Legislators are required to produce policies that are able to meet various legal needs
in society. Implications Analysis of CBA and RIA in formulating a policy on laws and
regulations can identify various implications and impacts of the new norms contained in the
Draft Law. The purpose of conducting an Economic Analysis of Law is to produce policy
regulations that are able to meet various legal needs in society, as well as improve the quality
of human resources, namely policy makers/designers to carry out CBA and RIA analysis in
drafting laws. Although this method is considered helpful in analyzing the impact of a policy,
until now, the obligation to use EAL through RIA and CBA has not been equipped with clear
guidelines that can be used by Ministries and/or Agencies. In fact, it is very useful to ensure
that each policy impact analysis can be carried out correctly. Analysis of these regulations or
policies, using the following methods:
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Cost-Benefit Analysis (CBA)
Cost-Benefit Analysis (CBA) requires that all costs and benefits can be assessed in
terms of money. This is only an alternative in conducting an analysis of various policy
options/choices, that is, if the party applying the RIA method uses a neoclassical economic
approach that aims to maximize social welfare. CBA is one of the methods/techniques in EAL.
This technique is applied in laws and regulations where risk estimates may be disclosed. In
addition, legal challenges and arguments can be more easily demonstrated when they are
based entirely on quantitative considerations, rather than qualitative considerations, such as
equity.
The concept of wealth consists of tangible and intangible factors. Therefore, it cannot
be seen only as a monetary measure. To analyze the maximization of public wealth as a
legislative goal, an effective method must be implemented in the EAL is through the CBA
method. CBA has the capacity to determine intangible and non-monetary measures as
assumed quantitative variables (Conboy, 2015). The ultimate goal of CBA is to evaluate the
law with reference to external methods: the costs and benefits of law. CBA covers things
intensively and comprehensively while looking for variables to show economic efficiency.
CBA quantifies legal objectives with the main objective being to maximize benefits and
minimize costs.
The ideology underlying CBA is quantification measures. The main focus of CBA is to
measure costs and benefits objectively. Laws are analyzed and measured quantitatively to
reflect changes to become more modern. The advantage of CBA is that it allows analysts or
decision makers to see the situation globally. CBAs provide guidance on the consequences of
their actions, and have the ability to evaluate government actions by comparing future
projects to status quo projects. CBA becomes a concrete and evaluative tool. Basically, CBA is
used to provide evidence about how society will benefit, and how maximizing community
welfare can be achieved.
Regulatory Impact Assessment (RIA)
Regulatory Impact Assessment (RIA) is a process of systematic analysis and
communication of policies, both new policies and existing policies. RIA is a method for
systematically, comprehensively and participatively assessing the positive and negative
impacts of a regulation or draft legislation. The RIA method is a method for finding the right
formulation of norms/regulations, analyzing the impacts that have arisen, and can be
effective in solving problems and anticipating implications.
RIA is a method that systematically and consistently assesses the impact of
government actions, communicating information to decision makers. RIA is basically used to
assess regulations in terms of: relevance between community needs and policy objectives,
need for government intervention, efficiency between inputs and outputs, effectiveness
between policy objectives and outcomes, sustainability between community needs and
outcomes before implementing or changing a regulation.
3. Results and Discussions
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1. Notification (Notification) of Acquisition of Company Shares
Takeover is a legal action carried out by a Business Actor to take over shares of a
Business Entity which results in a transfer of control over said Business Entity. The term for
such action is regulated in Article 1 Number 3 of Government Regulation Number 57 of 2010
Concerning Mergers or Consolidations of Business Entities and Acquisitions of Company
Shares That May Lead to Monopolistic Practices and Unfair Business Competition. There are
common terms known by the public for mergers, consolidations and acquisitions of shares of
a company, namely the terms acquisition and merger.
Article 1 point 2 of Government Regulation No. 28 of 1999 concerning Mergers,
Consolidation and Acquisition of Banks states that a Merger is a merger of 2 (two) Banks or
more, by maintaining the existence of one of the Banks and dissolving the other Banks
without liquidating them first. The term merger comes from the Indonesian word merge
which means to combine.
1
Gunawan Widjaja in his book defines a merger as a merger of two
or more companies into one company that already existed before.
2
Joni Emirzon defines a
merger as a transaction where two or more companies combine their businesses based on
existing laws and regulations so that only one company remains.
3
From these several
definitions, basically there are similarities in the elements of the merger, namely:
1. Merger or merger of companies is one way of merging companies, in addition to
consolidating companies (consolidation) and taking over companies (acquisitions);
2. Merger involves two parties, namely one company that accepts the merger and one or
more companies that merge themselves;
3. The company that accepts the merger will accept the acquisition of all shares, assets,
rights, obligations and debts of the merging companies.
The definition of a merger can be found in the provisions of Article 1 paragraph (1) of
Government Regulation Number 57 of 2010 concerning Mergers or Consolidations of
Business Entities and Acquisition of Company Shares That May Lead to Monopolistic
Practices and Unfair Business Competition, which states that a merger is a legal act. carried
out by one or more business entities to merge with another existing business entity which
results in the assets and liabilities of the merging business entities being transferred by law
to the business entity receiving the merger and then the status of the merging business
entities ends due to law. Munir Fuady categorizes mergers into several types, namely
according to the type of business, mergers can be categorized in several forms, including:
4
:
a. Merger Horizontal
A horizontal merger is a merger between two or more companies where all of
these companies are engaged in the same business line (line of business) or it can be said
that a horizontal fusion/merger occurs when two or more companies have the same
buying market and selling market. - together melted into one. Meanwhile, for a special
horizontal merger if it is carried out in one business group, there are two companies in
one group, which are called sister companies. Their shares are held by one holding
1
Gunawan Widjaya,Mergers In Monopoly Perspective,Raja Grafindo Persada, Jakarta, 2002, p. 47
2
Ibid
3
Ioni Emirzon,Indonesian Business Law,Prenhalindo, Jakarta, 2000, p. 113
4
Munir Fuady,Anti-Monopoly Law Towards the Era of Fair Competition,Citra Aditya Bakti, Bandung, 2001 p. 40.
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company. However, after a horizontal merger, the holding company holds shares in the
merged subsidiary that has merged. In this horizontal merger process, especially if a non-
liquidation merger is chosen, the minimum juridical actions to be taken are as follows:
(1) All assets and liabilities are transferred from one subsidiary to another (except for
assets payable to minority shareholders who do not agree to the merger). Unless
the merger with liquidation model is chosen;
(2) Subsidiary one stopped its activities, then was dissolved without liquidation;
(3) Minority shareholders who do not agree to the merger can choose between
becoming shareholders in the subsidiary or requesting compensation for the price
of the shares they are holding without becoming shareholders in the subsidiary
resulting from the merger.
b. Vertical Mergers
A vertical merger is a combination of two or more companies in which one acts as
a supplier for the other. Or it can be said that this vertical fusion/merger occurs when a
company unites with another company, which further works on goods made by the same
company. First.
(1) Con-generic merger
A congeneric merger is a merger between 2 (two) or more related
companies but not for the same product as in a horizontal merger and not between
upstream and downstream companies as in a vertical merger.
(2) Conglomerate Mergers
A conglomerate merger is a merger of 2 (two) or more companies that do
not have the same line of business. So that business activities are not related at all
between the merging companies and the companies that accept the merger.
Article 1 point 4 of Government Regulation Number 28 of 1999 concerning
Mergers, Consolidations and Acquisitions of Banks states that an acquisition is a takeover
of ownership of a Bank resulting in a transfer of control over the Bank. Same as the term
takeover in Article 1 point 3 of Government Regulation Number 57 of 2010 Concerning
Mergers or Consolidations of Business Entities and Acquisition of Company Shares That
Can Lead to Monopolistic Practices and Unfair Business Competition that legal actions
taken by business actors to take over shares of a business entity result in a change of
control over the business entity.
This explanation is in line with the understanding and description of the
Acquisition as referred to in the Notification or Notification is a written notification via a
form that must be made by business actors to the Commission on a Merger, Consolidation
or Acquisition of company shares and/or assets after the Merger, Consolidation or
Acquisition of shares and/or corporate assets is legally effective. This explanation is
obtained from Article 1 Number 6 Number 3 of 2019 Concerning Assessment of Mergers
or Consolidations of Business Entities, or Acquisitions of Company Shares Which May
Lead to Monopolistic Practices and/or Unfair Business Competition.
Article 5 Government Regulation Number 57 of 2010 Concerning Merger or
Consolidation of Business Entities and Acquisition of Company Shares Which Can Result
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in Monopolistic Practices and Unfair Business Competition, emphasizing that
notifications must be made in writing to the Commission no later than 30 (thirty)
working days from legally effective date of acquisition of company shares. Identification
of an action suspected of being a delay in notification is obtained through monitoring
reports and or investigation reports.
Article 2 Regulation of the Commission for the Supervision of Business
Competition of the Republic of Indonesia Number 3 of 2019 Concerning Evaluation of
Mergers or Consolidations of Business Entities, or Acquisition of Company Shares That
May Lead to Monopolistic Practices and/or Unfair Business Competition requires that
notifications (notifications) only apply if the takeover the company's shares resulted in
an asset value exceeding Rp. 2,500,000,000,000.00 (two trillion five hundred billion
rupiah); and/or the sales value exceeds 5,000,000,000,000.00 (five trillion rupiah).
If in the event that a business actor does not complete the necessary further
information and supporting documents, KPPU may carry out an Assessment based on
assumptions, supporting documents and/or data owned or obtained by KPPU as stated
in Article 12 of KPPU Regulation Number 3 of 2019 concerning Assessment of Mergers
or Consolidation of Business Entities, Or Acquisition of Company Shares Which Can
Result in Monopolistic Practices and/or Unfair Business Competition.
2. Legal Regulations Related to Delay in Notification of Acquisition of Shares to Business
Competition Supervisory Commission (KPPU) Regulations by Business Actors in
Indonesia's Antimonopoly Laws and Regulations
Indonesia has various legal policy rules governing Antimonopoly and Unfair Business
Competition, one of which is related to Notification (Notification) of Acquisition of Shares by
business actors to KPPU. Starting from Law Number 5 of 1999 concerning the Prohibition of
Monopolistic Practices and Unfair Business Competition. Law of the Republic of Indonesia
Number 40 of 2007 concerning Limited Liability Companies. Government Regulation of the
Republic of Indonesia Number 44 of 2021 concerning Implementation of Monopolistic
Practices and Unfair Business Competition. Government Regulation Number 57 of 2010
concerning Merger or Consolidation of Business Entities and Acquisition of Company Shares
which Can Lead to Monopolistic Practices and Unfair Business Competition. Regulation of the
Commission for the Supervision of Business Competition Number 1 of 2009 concerning Pre-
Notification of Mergers, Consolidations and Acquisitions. Regulation of the Commission for
the Supervision of Business Competition Number 1 of 2019 concerning Procedures for
Handling Cases of Monopolistic Practices and Unfair Business Competition. Regulation of the
Commission for the Supervision of Business Competition Number 3 of 2019 concerning
Evaluation of Mergers, Consolidations and Acquisitions of Shares. Regulation of the
Commission for the Supervision of Business Competition Number 2 of 2021 concerning
Guidelines for Imposing Fines for Violating Monopolistic Practices and Unfair Business
Competition.
Business actors who have taken over shares are required to provide notifications or
notifications to KPPU based on the authority granted by them. This notification is made in
writing through a form that must be made by business actors to KPPU regarding the Merger,
Consolidation, or Acquisition of company shares and/or assets after the Merger,
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Consolidation, or Acquisition of shares and/or company assets is legally effective. Article 5
Government Regulation Number 57 of 2010 concerning Merger or Consolidation of Business
Entities and Acquisition of Company Shares Which Can Result in Monopolistic Practices and
Unfair Business Competition / or the sales value exceeding a certain amount must be notified
in writing to the Commission no later than 30 (thirty) working days from the legally effective
date of the merger of business entities, consolidation of business entities, or acquisition of
company shares. The asset value and/or sales value is regulated by the provision of an asset
value of two trillion five hundred billion rupiahs and/or a sales value of five trillion rupiahs.
The value of assets and/or sales value means that in a merger of business entities,
consolidation of business entities, or acquisition of shares that has been carried out, it is
calculated based on the sum of the value of assets and/or sales value of the company that
acquired the shares of other companies and the company that was acquired. Other provisions
in the summing up of asset values also apply to companies that directly or indirectly control
or are controlled by the acquiring company, and the acquired company.
Provisions in Government Regulation Number 57 of 2010 concerning Mergers or
Consolidations of Business Entities and Acquisition of Company Shares That Can Result in
Monopolistic Practices and Unfair Business Competition also regulate the procedures for a
company carrying out an acquisition of shares in submitting notifications to KPPU.
Article 8 Government Regulation Number 57 of 2010 concerning Mergers or
Consolidations of Business Entities and Acquisition of Company Shares Which Can Result in
Monopolistic Practices and Unfair Business Competition stipulates that written notification
shall be made by filling out a form determined by the Commission. The form includes the
following:
a. name, address, name of the leadership or management of the Business Entities
that carry out the Merger of Business Entities, Consolidation of Business Entities,
or Acquisition of shares of other companies;
b. summary of plans for Merger of Business Entities, Consolidation of Business
Entities, or Acquisition of company shares; And
c. asset value or sales proceeds of the Business Entity.
The notification form for the acquisition of shares must be signed by the head or
management of the business entity carrying out the merger of business entities,
consolidation of business entities, or acquisition of shares of other companies; and
accompanied by supporting documents relating to the acquisition of company shares.
In the case of delays in notifying reports on the acquisition of shares by business
actors, it is necessary to pay close attention to the handling process carried out by the
Business Competition Supervisory Commission (KPPU). The rules issued by the KPPU
regarding the handling of cases are contained in the Regulation of the Commission for the
Supervision of Business Competition Number 1 of 2019 concerning Procedures for Handling
Cases of Monopolistic Practices and Unfair Business Competition.
Article 3 Regulation of the Commission for the Supervision of Business Competition
Number 1 of 2019 Concerning Procedures for Handling Cases of Monopolistic Practices and
Unfair Business Competition stipulates that anyone who knows that there has been or should
be suspected of having been a violation of the Antimonopoly Law and other related
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regulations, can report to KPPU. Everyone referred to will be considered as a Reporter, and
the KPPU must keep his identity confidential. The report is then addressed to the Chairman
of the KPPU using good and correct grammar and signed by the person concerned. The report
is made in written form with provisions that at least contain provisions on the identity of the
Rapporteur and the Reported Party, a clear description of the alleged violation and evidence
of the alleged violation. Reports that have been prepared can then be submitted by KPPU
through:
a. Commission headquarters;
b. Commission representative offices in the regions; or
c. online reporting application.
The work unit that handles reports reports on receipt of reports on alleged violations
of the Antimonopoly Law to the Chairperson of the Commission as a clarification of the
report. The clarification of the report is carried out to check the administrative completeness
of the report, and also to check the truth of the identity of the reporter and the reported and
the required witnesses. This work unit also ensures that in examining the report, it also
analyzes the suitability of the alleged violation of the Law with the article that was violated
with the evidence submitted by the Reporting Party; and assess the absolute competence of
the report.
The authority granted to KPPU is also regulated in Regulation of the Commission for
the Supervision of Business Competition Number 1 of 2019 concerning Procedures for
Handling Cases of Monopolistic Practices and Unfair Business Competition, that KPPU can
conduct examinations of business actors if there is an alleged violation of the Law even
without a report. Case handling will be carried out at the KPPU's initiative to conduct
research based on data or information on alleged violations of statutory provisions. The data
to be used in the report is obtained from the results of studies, findings in the examination
process, results of hearings conducted by KPPU. If the reporter does not provide a complete
report, KPPU can also take the initiative to continue the investigation based on existing facts
or reporting through accountable media. Investigation of initiative cases begins with the
approval or direction of the Commission Meeting, and the results of the investigation of
initiative cases are reported administratively and briefly to the Chairperson of the
Commission.
The work unit that handles research conducts validation and analysis of data or
information regarding alleged violations of antimonopoly laws and regulations. Validation
and analysis is carried out by identifying business actors and related parties and identifying
markets and anti-competitive behavior constructs. The work unit in charge of research
reports briefly the results of research on alleged violations of the law at the Coordination
Meeting. The research report contains provisions regarding the results of data validation
and/or information on alleged violations, as well as conclusions on whether or not it is
necessary to proceed to the investigation stage. Investigations are carried out to obtain
sufficient evidence, clarity and completeness of alleged violations.
During the investigation process, it is undeniable that there were reported parties
and/or witnesses who refused to be examined. In fact, not a few also refused to provide
information so that it could hinder the investigation and/or examination process. In this case,
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the examination investigator may request assistance from the investigator to present the
person concerned for examination.
5
The reported party and/or witness who still refuses to
be examined, refuses to provide information, obstructs the investigation and/or examination
process, the examination investigator can make a report to the investigator to be subject to
action.
Investigation Reports that are considered appropriate and have been reported, are
compiled by the prosecution investigator in the report on alleged violations. Based on the
report, the Commission Meeting determines a preliminary examination and the
establishment of a Commission Council to handle the case in question. The determination of
the preliminary examination and the formation of the Commission Council is then set forth
in a Commission Decision. Article 33 Regulation of the Commission for the Supervision of
Business Competition Number 1 of 2019 Concerning Procedures for Handling Cases of
Monopolistic Practices and Unfair Business Competition stipulates that the Commission
Council may provide an opportunity for the reported party to make changes in behavior after
the Alleged Violation Report is read out and/or submitted to the reported party. The
opportunity to change this behavior is of course taking into account many things, bearing in
mind that it is necessary to review the type of violation, when the violation occurred, and the
losses resulting from the violation. If the reported agrees to change behavior, then Article 34
of the Business Competition Supervisory Commission Regulation Number 1 of 2019
concerning Procedures for Handling Monopolistic Practices and Unfair Business Competition
Cases stipulates that the reported commitment to change behavior is made in the Behavior
Change Integrity Pact signed by the reported party. The Behavior Change Integrity Pact
contains:
a. a statement by the reported party admitting and accepting the Alleged Violation
Report;
b. statement of the Reported Party not to engage in anti-competitive behavior as
stated in the Alleged Violation Report;
c. statement of the Reported Party to report the implementation of the Behavior
Change Integrity Pact; and the signature of the reported party.
The explanation above is the handling process carried out by the KPPU in
the case of delays in the acquisition of shares in Indonesia as regulated in the current
laws and regulations.
3. Implementation of the Regulations of the Commission for the Supervision of Business
Competition (KPPU) In Regulating Delays in Notification (Notification) of Acquisition
of Shares by Business Actors
Law Number 40 of 2007 concerning Limited Liability Companies, Article 1 Number 11
regulates the definition of expropriation, namely:
"Acquisition is a legal action carried out by a Legal Entity or an individual to take over
Company shares resulting in a transfer of control over the Company".
The takeover referred to in Article (1) Number 11 of Law Number 40 of 2007
5
Article 18 Regulation of the Commission for the Supervision of Business Competition Number 1 of 2019 Concerning
Procedures for Handling Cases of Monopolistic Practices and Unfair Business Competition
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concerning Limited Liability Companies can be carried out in two ways, namely first through
the Company's Directors or through direct shareholders. In this regard, each is regulated in
a different legal procedure in Law Number 40 of 2007 concerning Limited Liability
Companies. The process of taking over shares that occur in a company, results in changes in
control or consequences that do not cause changes in control in the company.
The process of acquiring shares regulated in Law Number 40 of 2007 concerning
Limited Liability Companies must be reported to the Minister of Law and Human Rights.
6
After that, business actors who have taken over shares are required to provide notifications
or notifications to KPPU based on the authority granted by them. This notification is made in
writing through a form that must be made by business actors to KPPU regarding the Merger,
Consolidation, or Acquisition of company shares and/or assets after the Merger,
Consolidation, or Acquisition of shares and/or company assets is legally effective.
Article 5 Government Regulation Number 57 of 2010 concerning Merger or
Consolidation of Business Entities and Acquisition of Company Shares Which Can Result in
Monopolistic Practices and Unfair Business Competition / or the sales value exceeding a
certain amount must be notified in writing to the Commission no later than 30 (thirty)
working days from the legally effective date of the merger of business entities, consolidation
of business entities, or acquisition of company shares. The asset value and/or sales value is
regulated by the provision of an asset value of two trillion five hundred billion rupiahs and/or
a sales value of five trillion rupiahs. The value of assets and/or sales value means that in a
merger of business entities, consolidation of business entities, or acquisition of shares that
has been carried out, it is calculated based on the sum of the value of assets and/or sales value
of the company that acquired the shares of other companies and the company that was
acquired. Other provisions in the summing up of asset values also apply to companies that
directly or indirectly control or are controlled by the acquiring company, and the acquired
company.
Article 6 Government Regulation Number 57 of 2010 concerning Mergers or
Consolidations of Business Entities and Acquisition of Company Shares That Can Result in
Monopolistic Practices and Unfair Business Competition that if the business actor does not
submit written notification to KPPU, then the business actor may be subject to sanctions in
the form of administrative fines one billion rupiah for each day of delay, provided that the
overall administrative fine is a maximum of twenty five billion rupiah. Many factors are
considered by KPPU considering that KPPU is given the authority to carry out its duties in
accordance with Articles 35 and 36 of Law Number 5 of 1999 concerning Prohibition of
Monopolistic Practices and Unfair Business Competition. The duties carried out by KPPU
include evaluating agreements that may result in monopolistic practices and or unfair
business competition and then evaluating business activities and or actions of business
actors that may result in monopolistic practices and or unfair business competition. KPPU is
also tasked with providing advice and considerations on Government policies related to
monopolistic practices and or unfair business competition, as well as preparing guidelines
and or publications related to the Antimonopoly Law, as well as providing periodic reports
6
M. Yahya Harahap, S.Hr, but only notification to the Minister. In the book (Harahap, 2011), "Limited Liability
Company", Sinar Graphic, Jakarta, p.495
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on the results of the Commission's work to the President and House of Representatives. After
that, KPPU's task is to evaluate whether or not there is an abuse of dominant position which
can result in monopolistic practices and or unfair business competition and to take action in
accordance with the authority granted to KPPU.
In each KPPU's decision regarding the case of late notification of share acquisition, it
only sticks to the normative rules set forth in Article 29 of Law Number 5 of 1999 concerning
Prohibition of Monopolistic Practices and Unfair Business Competition and Article 5 of
Government Regulation Number 57 of 2010 concerning Merger or Consolidation of Business
Entities and Acquisition of Company Shares That Can Lead to Monopolistic Practices and
Unfair Business Competition and failure to consider whether a company is late in reporting
the notification of share acquisition notification has a background of many factors that cause
it. Article 29 of Law Number 5 of 1999 concerning the Prohibition of Monopolistic Practices
and Unfair Business Competition reads:
(1) Merger or consolidation of business entities, or acquisition of shares as referred to
in Article 28 which results in the value of the assets and/or sales value exceeding a
certain amount, must be notified to the Commission no later than 30 (thirty) days
from the date of the merger, consolidation or acquisition.
(2) Provisions regarding the determination of the value of assets and/or sales value and
procedures for notification as referred to in paragraph (1) are regulated in a
Government Regulation.
Meanwhile, Article 5 of Government Regulation Number 57 of 2010 concerning
Mergers or Consolidations of Business Entities and Acquisition of Company Shares That Can
Lead to Monopolistic Practices and Unfair Business Competition stipulates that:
(1) Merger of Business Entities, Consolidation of Business Entities, or Acquisition of
shares of other companies which results in the value of the assets and/or sales
value exceeding a certain amount must be notified in writing to the Commission
no later than 30 (thirty) working days from the legally effective date of Merger of
Business Entities , Consolidation of Business Entities, or Acquisition of company
shares.
(2) The certain amount referred to in paragraph (1) consists of:
a. asset value of IDR 2,500,000,000,000.00 (two trillion five hundred billion
rupiah); and/or
b. sales value of IDR 5,000,000,000,000.00 (five trillion rupiah).
(3) For Business Actors in the banking sector, the obligation to submit written
notification as referred to in paragraph (1) applies if the asset value exceeds IDR
20,000,000,000,000.00 (twenty trillion rupiah).
(4) The asset value and/or sales value as referred to in paragraph (2) and paragraph
(3) is calculated based on the sum of the asset value and/or sales value of:
a. Business Entities resulting from the Merger, or Business Entities resulting
from the Consolidation, or Business Entities acquiring shares of other
companies and Business Entities acquired; And
b. Business Entities that directly or indirectly control or are controlled by
Business Entities resulting from a Merger, or Business Entities resulting from
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Consolidation, or Business Entities that acquire shares of other companies and
Business Entities that are acquired.
Based on the Merger and Acquisition case decision data published in the KPPU, there
are 17 merger and acquisition decisions which were uploaded to the KPPU's Decision
Directory from 11 February 2020 to 11 April 2021, it was found that there was a delay in the
Notification of Mergers and Acquisitions with a delay of between 2 (two) days to with more
than 8 (eight) years
7
. During the period 2010 – 2021 there were 907 merger notifications
submitted to KPPU 8 (eight) years
8
. The number of merger consultations conducted was 32
cases of 8 (eight) years
9
. Meanwhile, data on the number of merger notification fine decisions
available on the KPPU website, during 2012 – 2022 there were 45 cases of fines for delays in
merger notifications with total fines reaching IDR 118,765,000,000
10
.
This shows that there are still many business actors who, in carrying out their
business, also do not pay attention to the regulations governing their fields. The reason used
in the case of delay in notifying the takeover of shares, is because the business actor carrying
out the acquisition of shares does not know about the existence of a regulation that requires
business actors who, with certain asset conditions, take over shares, must be obliged to
provide a report on notification of takeover of shares to the KPPU. The fact found in the field,
that there are still many business actors who violate the provisions on the obligation to notify
share acquisitions, raises questions about the form of the regulation itself, the KPPU's
authority in terms of regulating it, or whether business actors are truly lawless.
Not all companies that are late in submitting share acquisition notification reports to
KPPU are companies that do it on purpose, or actually know about these provisions but
choose not to report them for various reasons. There are still companies that, because they
are "new to the business world", really do not know about the provisions regarding the
obligation to report and are obliged to provide a share takeover notification report to the
KPPU because they are not aware of the provisions stipulated in the laws and regulations.
KPPU should be able to distinguish between companies that deliberately delay in submitting
share takeover notification reports and companies that, due to their negligence, result in
delays in making share takeover notification reports and make this an input for KPPU in
carrying out its duties.
Business actors can carry out written consultations with the Commission before
carrying out share acquisition actions. This is regulated in Article 20 of KPPU Regulation
7
Decision on Merger and Acquisition case uploaded inwebsite KPPU on 17 Merger and Acquisition Decisions which
were decided and published in the Directory of KPPU Decisions from 11 February 2020 to 11 April 2021, accessed
from the work of (Murniati, 2021), “Ignorance of Business Actors as a Reason for Delayed Notification of Mergers
and Acquisitions”,Business Competition Journal, Faculty of Law, University of Lampung, Vol.02
2021,https://jurnal.kppu.go.id/index.php/official/article/view/27/21 , accessed April 10, 2023
8
https://kppu.go.id/daftar-notifikasi-merger/ , accessed April 10, 2023
9
https://kppu.go.id/konsultasi/ , accessed April 10, 2023
10
https://putusan.kppu.go.id/simper/menu/ , accessed April 10, 2023
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Number 3 of 2019 concerning Assessment of Mergers or Consolidations of Business Entities,
or Acquisitions of Company Shares Which May Lead to Monopolistic Practices and/or Unfair
Business Competition. The results of the Consultation Assessment do not constitute approval
or rejection of the plan for Merger of Business Entities, Consolidation of Business Entities, or
Acquisition of Shares of other companies which will be carried out by Business Actors, and
does not remove the Commission's authority to conduct an assessment after Merger of
Business Entities, Consolidation of Business Entities, or Acquisition of shares the other
company concerned is legally effective. The result of the consultation assessment in the form
of a written opinion is whether or not there is an allegation of monopolistic practices and
unfair business competition. From the commission regulations above, it can be seen that
KPPU actually intends to enforce the provisions for pre-notification, but because Law
Number 5 of 1999 concerning Prohibition of Monopolistic Practices and Unfair Business
Competition requires a post-notification system, so that consultations are carried out when
The plan is non-binding and when the acquisition of shares is carried out, business actors are
again asked to make notifications, causing inefficiency and legal uncertainty.
There is a weakness in the notification model after the acquisition of shares or post-
notification because it is felt that the examination of the business merger process by KPPU
through post-notification of the process of acquiring shares will give rise to a tendency for
suspicion of monopoly in the market. The concept of post-notification has the potential to
cause monopolistic practices during the KPPU's examination process. Actually, in the concept
of pre-notification, this provides more guarantees of legal certainty for business actors.
Although the pre-notification system has not been accepted as a legal requirement that must
be complied with. In fact, the KPPU has already carried out a pilot in which business actors
have been advised to carry out consultations on the feasibility of acquiring shares with the
KPPU before the process of acquiring shares takes place. This is in accordance with Article
10 of Government Regulation Number 57 of 2010 concerning Mergers or Consolidations of
Business Entities and Acquisitions of Company Shares that Can Lead to Monopolistic
Practices and Unfair Business Competition. The post-notification system can also raise
concerns that if the company has merged companies with the share acquisition system, then
cancellation will occur, even though there has been a letter of approval from the Minister of
Law and Human Rights for the acquisition of shares, so it needs to be reviewed in terms of
the urgency of the legislation, so that it is permissible to carry out pre-notification so that
KPPU can also provide more appropriate advice to business actors before the share
acquisition transaction begins. This can minimize the accumulation of similar cases related
to delays in notification of share acquisitions that must be managed by the KPPU and can also
make it easier for business actors to run their business as long as they comply with anti-
monopoly and business competition regulations.
Technological advances and the development of an increasingly modern era in the two
businesses, demand changes and implementation that can be implemented immediately,
namely for the enactment of provisions regarding written consultations with business actors
to KPPU as a pre-notification of share acquisitions. Pre-notification should be implemented
and implemented, in order to reduce the number of losses that are quite large if the post-
notification provisions carried out by business actors are rejected by KPPU due to business
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monopoly tendencies. Pre-notification efforts can also benefit the business actors themselves
so that they can be careful in carrying out share acquisitions so as not to give rise to
suspicions of business monopoly, as well as make it easier for KPPU to handle cases of share
acquisitions in the field by simplifying the post-notification process to pre-notification.
notification.
4. Cost Benefit Analysis (CBA)
The results of the CBA analysis show that the amount of costs incurred by business
actors in relation to post-merger notification late fees from 2012 to 2012. 2022 is IDR
149,580,595,634.
Table 1
CBA analysis
Table 2
Calculation - CBA EX POST
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5. Regulatory Impact Assessment (RIA)
Proposal: Changing post-notification obligations to pre-notification obligations in
mergers to ensure legal certainty in mergers and there are no late merger post-notification
penalties where there are still many business actors who do not know the provisions
regarding merger post-notifications which result in late payment penalties. KPPU's decision
as a result of the violation.
The RIA analysis results show that if a change is made from the post-notification
obligation to the pre-notification obligation, it will provide a benefit of IDR 703,827,967,221.
Table 3
RIA analysis
Table 4
Calculation - RIA EX ANTE
The discount rate used in CBA and RIA calculations uses the average ORI yield from
2012-2022 according to the following table:
Table 5
The average yield of ORI from 2012 to.d. 2022
Year
Draw
Coupon (%)
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201
2
OR 009
6,25
201
3
OR 010
8,5
201
4
OR 011
8,5
201
5
OR 012
9
201
6
OR 013
6,6
201
7
OR 014
5,85
201
8
OR 015
8,25
201
9
OR 016
6,8
202
0
OR 017
6,4
202
0
OR 018
5,7
202
1
OR 019
5,57
202
1
OR 020
4,95
202
2
OR 021
4,9
Total
87,2
7
Rate-rate
6,71
Source:
● https://www.google.com/amp/s/www.bareksa.com/berita/sbn/2020-10-
07/begini-tren-bi-rate-dan-kupon-ori-sejak-diluncurkan-2006-hingga-2020/amp
● www.baresa.com
4. Conclusion
The results of the exposure and analysis in the above research can be concluded that:
1. Legal arrangements related to delays in notification of acquisition of shares to the
Business Competition Supervisory Commission (KPPU) Regulations by business
actors in anti-monopoly laws and regulations in Indonesia are realized through Law
Number 5 of 1999 concerning Prohibition of Monopolistic Practices and Unfair
Business Competition, Regulation Government Number 57 of 2010 concerning
Mergers or Consolidations of Business Entities and Acquisition of Company Shares
Which Can Result in Monopolistic Practices and Unfair Business Competition, KPPU
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Regulation Number 3 of 2019 concerning Assessment of Mergers, Consolidations and
Acquisitions of Shares and KPPU Regulation Number 2 of 2021 concerning Guidelines
for Imposing Fines for Violating Monopolistic Practices and Unfair Business
Competition. The form of regulation is still deemed inadequate and achieved, when
analyzed using the theory of legal certainty, namely that the legal rules that have been
formed can be implemented as they should and aim to create certainty in social life,
then regulations or legal arrangements related to delays in notification (notification)
of the acquisition of shares, has not been socialized properly because there are still
many business actors who have been subject to administrative sanctions for paying
fines by the KPPU due to ignorance of the regulations that govern them.
2. Implementation of the Regulations of the Business Competition Supervisory
Commission (KPPU) in regulating delays in notification of the acquisition of shares by
business actors has not gone well. Due to the facts on the ground it was found that, the
reason why business actors were late in submitting share takeover notifications, they
were not aware of any regulations requiring the submission of share takeover
notification reports, and the reason that there were still many cases of late share
takeover notifications, was that discrepancies arose. understand the juridical validity
date after the acquisition of shares is approved by the Minister of Law and Human
Rights. From the existing cases, it can be concluded that the implementation of the
Business Competition Supervisory Commission (KPPU) Regulations in regulating
delays in notification of share acquisition by business actors has not been well
socialized to business actors, resulting in delays in fines in KPPU decisions due to
violations. against post-notification provisions.
3. It is necessary to change the post-notification obligation to become a pre-notification
obligation in the acquisition of shares, which previously was not obligatory to become
an obligation that must be fulfilled by business actors before carrying out the merger,
consolidation and acquisition of shares.
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https://putusan.kppu.go.id/simper/menu/
https://kppu.go.id/daftar-notifikasi-merger/
https://kppu.go.id/konsultasi/
https://www.google.com/amp/s/www.bareksa.com/berita/sbn/2020-10-07/begini-tren-bi-rate-dan-
kupon-ori-sejak-diluncurkan-2006-hingga-2020/amp
www.baresa.com
