Indonesia Competition Commission Improved its Merger Notification Rules.

Friday, April 14, 2023

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Through Regulation Number 3 of 2023 concerning Assessment of Mergers, Consolidations, or Acquisitions of Shares and/or Assets That May Result in Monopolistic Practices and/or Unfair Business Competition (“PerKPPU 3/2023”), the Indonesia Competition Commission (“KPPU”) has improved its regulations relating to notifications of transactions of mergers, consolidations, or acquisitions of shares and/or company assets (“mergers and acquisitions”). This regulation primarily establishes an electronic notification delivery system, regulates the provisions for determining the value of assets/sales on assets/sales in Indonesia, shortens the time frame for verifying the accuracy of documents, and calls a Commission Hearing to discuss the findings of the overall assessment. From the above-mentioned date of promulgation, PerKPPU 3/2023 is in effect.

For information, no later than 30 (thirty) days after the transaction becomes legally effective, the Commission must be notified of any merger and acquisition transaction that complies with the laws on assets/sales. Both the Commission Regulation Number 3 of 2019 and Government Regulation Number 57 of 2010 will serve as the foundation for these rules. However, the Commission believes that in order to keep up with the times, it is essential to provide more effective and efficient electronic-based notification systems. The Commission issued PerKPPU 3/2023 as a result, which was stipulated on March 30, 2023, and published on March 31, 2023.

Various point of changes

The regulation makes a number of improvements to the merger and acquisition notification process, including:

  1. Only assets and sales owned by business actors, both directly and indirectly, in Indonesia, are included in the value of assets and sales determined as a reference for mandatory notification. Only the computation of sales was constrained by Indonesian sales in the previous regulation; however, the calculation of assets was open to the assets of business actors worldwide.
  1. Business actors can access the notification system via the portal, where they can send notifications. Notifications were previously made manually (in person or via letter) or via electronic mail. Business actors are accountable for the accuracy of the data and notification documents they submit through the system so that the ICC may cancel the registration of the notification and/or the results if an error is discovered.
  1. No later than 3 (three) days after the notification is submitted, it will be verified to see if the notifications provided through the system are complete. The completeness of the notification will be determined by the completeness check’s findings. ICC will issue a statement with the notification registration number and information on whether the notification is required or not, once it has been determined to be complete.
  1. Under the new regulations, the Secretariat of ICC is in charge of handling both the first stage of assessment and the overall assessment. If the results of a careful analysis carried out by the Secretariat of ICC indicate that the transactions have the potential to lead to monopolistic practice and/or unfair competition, The Commission Council must be involved. The Comprehensive Assessment Commission Hearing procedure will be followed in this instance.

At the Hearing, the Investigator will deliver a report on the findings of the overall assesment and/or suggest conditional approval (remedy) along with the timeline for its execution during the meeting. In response to the report on the findings of the overall assessment, as well as the proposal for conditional approval (remedy) and the implementation timetable submitted by the Investigator, the business actor who made the notification will also be present at the meeting.

The Commission Council will issue a Stipulation if it is approved. In the event that the proposal is denied, the Commission Council will go on to the Advanced Examination process in accordance with the regulation for handling allegations of monopolistic practice and/or unfair business competition. The business actor might present his justifications and request for conditional approval (remedy) if his plan is partially denied. The Hearing will need to be concluded within 30 (thirty) days at the most.

The assessment’s fee

A fee is incurred as a part of the assessment process for notified merger, consolidation, or acquisition of shares and/or corporate assets. This cost is placed as non-tax state revenue in the state treasury. A fee of 0.004% of the asset worth or sales value as specified in the notification, or a maximum of Rp 150,000,000 (one hundred and fifty million rupiah), is levied to the business actor making the notification. Government Regulation Number 20 of 2023, which was published on April 5, 2023, governs the types of non-tax state revenues that are applicable to the Indonesia Competition Commission. Upon the expiration of 30 (thirty) days from the date of issuance, this regulation will take effect.