Cikarang District Court Confirms Decision of KPPU on the Overdue Notification of PT Nippon Indosari Corpindo, Tbk (Sari Roti) Acquisition of Shares of PT. Prima Top Boga.

Cikarang District Court confirms Decision of KPPU No. 07/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 Company PT. Prima Top Boga (PTB) by PT. Nippon Indosari Corpindo, Tbk (Sari Roti). The hearing for the Reading out of Decision No. 42/Pdt.Sus-KPPU/2019/PN.Ckr., was conducted on March 5, 2019 in the presence of the Attorney-at-Law of KPPU as Respondent of Objection. The hearing was presided over by Decky Christian S, S.H., as the Head of the Panel of Ju, Alfadjri, S.H., and Rechtika Dianita, S.H., M.H., as Members of the Panel of Judges, respectively and was assisted by Sutrisno, S.H., M.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.

1. Nippon Indosari Corpindo, Tbk did not accept Decision of KPPU No. 07/KPPU-M/2018 and lodged an objection to Cikarang District Court. 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, among other things: The setting of legally effective date should be calculated as of obtaining approval from the Indonesian Investment Coordinating Board (BKPM) since PTB constitutes a company having a Foreign Investment status, the aggravating consideration in the imposition of penalty made by the Respondent of Objection to Petitioner of Objection is not relevant and is overstated.

Against the objection lodged by PT. Nippon Indosari Corpindo, Tbk as the Petitioner of Objection, the Panel of Judges in their consideration is of the same opinion as that of KPPU that the legally effective date of share acquisition conducted by Petitioner of Objection against PTB is as from obtaining a Decision of the Minister of Law and Human Rights Number AHU-0003152.AH.01.02 dated February 9, 2018. In addition to the above, the aggravating or alleviating matters of the Petitioner of Objection are already in accordance with the hearing facts and instruments of proof are specified clearly in the consideration of the a quo Decision of KPPU. Petitioner of Objection constitutes a public company that should know regulations with regard to Merger and Acquisition applicable in Indonesia, such as: (a) Law Number 5 Year 1999; (b) Government Regulation Number 57 Year 2010; and (c) Regulation of the Commission for the Supervision of Business Competition Number 4 Year 2012 regarding Guidelines for the Imposition of Penalties on Overdue Notification of Mergers or Consolidations or Acquisitions of Corporate Shares.

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 PTB by PT. Nippon Indosari Corpindo, Tbk as the Petitioner of Objection. The Commissioners’ Council of the case found facts in the hearings among other things the adding up value of assets of PT. Nippon Indosari Corpindo, Tbk and PTB amounted to Rp3,418,727,064,391.00 (Three Trillion Four Hundred and Eighteen Billion Seven Hundred and Twenty-Seven Million Sixty-Four Thousand Three Hundred and Ninety-One Rupiah). Such assets value is calculated on the basis of the adding up of the assets value of the Business Entity taking over the shares of other company and the Business Entity taken over as well as the Business Entity directly or indirectly controlling or controlled by the Business Entity taking over other company and Business Entity taken over. Therefore, the amount of assets of IDR 3,418,727,064,391.00 has exceeded the cutoff value of IDR 2,500,000,000,000.00 (two trillion five hundred billion rupiah) and there is no affiliation relationship between PT. Nippon Indosari Corpindo, Tbk and PTB, thus, this must be notified to the Commission by no later than 30 (thirty) days as of the legally effective date of the acquisition of shares. The legally effective date of acquisition of shares of PTB is February 9, 2019 by virtue of Decision on the amendment to articles of association of PT. Prima Top Boga Number AHU./AH.01.03-0061708 issued by the Ministry of Law and Human Rights, consequently, the deadline for notification falls on March 23, 2018. In the meantime, the official notification of the acquisition of shares was submitted to KPPU on March 29, 2018, thus, the notification is overdue for 4 (four) working days.

The Commissioners’ Council of Case No. 07/KPPU-M/2018 consisting of Ukay Karyadi, S.E., M.E., Kurnia Toha, S.H., LL., Ph.D, and Dr. Guntur Syahputra Saragih, M.S.M., and in its decision declared that the Reported Party (PT. Nippon Indosari Corpindo, Tbk) 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 IDR 2,800,000,000.00 (two billion eight hundred million rupiah) that must be remitted directly to the State Treasury as a violation penalty revenue deposit and ordering to pay for 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.