Pekalongan District Court Confirms Decision of KPPU on Overdue Notification of Kospin Jasa’s Acquisition of Shares of PT. Asuransi Takaful Umum.

Pekalongan district Court confirms Decision of KPPU No. 02/KPPU-M/2018 regarding Violation of Article 29 of Law No. 5 Year 1999 jo. Article 5 Government Regulation No. 57 Year 2010 with regard to the Overdue Notification in the Acquisition of Shares of PT Asuransi Takaful Umum (PT. ATU) by JASA Savings and Loan Cooperative (Kospin JASA). The hearing for the Reading Out of Decision No. 01/Pdt.Sus-KPPU/2019/PN.Pkl., was conducted on February 27, 2019 in the presence of the Attorney-at-Law of Kospin JASA as Petitioner of Objection and KPPU as Respondent of Objection. The hearing was presided over by Moch. Ichwanudin, S.H., M.H., as the Head of the Panel of Judges, Utari Wiji Hastaningsih, S.H., and Setyaningsih, S.H., as Members of the Panel of Judges, respectively and was assisted by Faik Ardani, S.H., as Substitute Clerk. The Panel of Judges in their decision decided namely rejecting the petition of the Petitioner of Objection in its entirety and sentencing the Petitioner of Objection to pay for case fee amounting to Rp461,000.

The material of objection lodged by the Petitioner of Objection basically was not of the same opinion as the consideration of the Commissioners’ Council of KPPU with regard to aggravating matters, among other things: (1) that the Decision of KPPU lacks in its legal consideration especially with regard to the exception in Article 50 sub-article i of Law No. 5 Year 1999 and (2) that the Petitioner of Objection is not proven to have viooverdued the provision of Article 29 of Law No. 5 Year 1999 jo. Article 5 of Government Regulation No. 57 Year 2010 for the acquisition of the shares of PT ATU by the Petitioner of Objection does not result in the occurrence of a monopolistic practice and/or unfair business competition.

Against the objection lodged by Kospin JASA as the Petitioner of Objection, the Panel of Judges in their consideration is of the same opinion as that of KPPU that the share acquisition action taken by the Petitioner of Objection against PT. ATU is not included in the exception based on the provision of Article 50 sub-article i of Law No. 5 Year 1999, therefore, the Panel of Judges are of the view that the Petitioner of Objection is obligated to notify KPPU with regard to the acquisition of shares of PT ATU. In addition to the above, the Panel of Judges is also in agreement with KPPU that the Petitioner of Objection has violated the provision of Article 29 of Law No. 5 Year 1999 jo. Article 5 of Government Regulation No. 57 Year 2010.

The a quo case began with the existence of Pre-investigation Report identified from the overdue notification of the acquisition of shares with regard to the alleged violation of Article 29 of Law No. 5 Year 1999 jo. Article 5 of Government Regulation No. 57 Year 2010 in the Acquisition of Shares with regard to the overdue notification of the acquisition of shares of PT. ATU by Kospin JASA as the Petitioner of Objection.

Based on the facts in the examination, the Panel of Judges did not find any affiliation relationship between Kospin JASA and PT. ATU. The combined value of sales and/or assets resulting from the acquisition proceeds calculated on the basis of the adding up of the sales value and/or assets value of the acquiring business entity of the last year of Kospin JASA and the sales value and/or assets value on average of the last 3 (three) years of the acquired business entity, PT. ATU is assets amounting to IDR 6,747,893,024,024 and sales amounting to IDR 606,637,453,239. The value of assets exceeds the cutoff value of assets and there is no affiliation relationship, hence, Kospin JASA is obligated to report to KPPU. The Commissioners’ Council is of the view that the notification of the acquisition of shares of Company PT. ATU by Kospin JASA should be made in writing by no later than February 21, 2018, however, Kospin JASA notified KPPU in writing on March 16, 2018, consequently, Kospin JASA’s notification was overdue for 17 working days.

The Commissioners’ Council of Case No. 02/KPPU-M/2018 consisting of Kodrat Wibowo, S.E., Ph.D., Harry Agustanto, S.H., M.H., and Dr. Afif Hasbullah, S.H., M..Hum., read out the decision of the case on December 7, 2018. The Commissioners’ Council in its decision declared that the Reported Party (Kospin JASA) is legally and convincingly proven to have violated Article 29 of Law No. 5 Year 1999 jo. Article 5 of Government Regulation No. 57 Year 2010; sentencing the Reported Party to pay for a penalty amounting to Rp1,000,000,000.00 (one billion rupiah) that must be remitted directly to the State Treasury as a violation penalty revenue deposit in the field of business competition of the Working Unit of the Commission for the Supervision of Business Competition through Government bank under revenue code 425812 (Violation Penalty Revenue in the Field of Business Competition); and ordering to pay the penalty, reporting, and handing over the copy of the penalty payment receipt to KPPU.

The provision of Article 45 paragraph (3) of Law No. 5 Year 1999 ”Parties objecting to a ruling of District Court within 14 (fourteen) days may file a cassation to the Supreme Court of the Republic of Indonesia”, so that both KPPU and Petitioner of Objection may still exercise their rights to file a remedy in the form of Cassation to such District Court Ruling.