Late Notification, ICC Fines APF Holdings I, L.P 1.5 Billion.

Monday, September 25, 2023

Tags :

Jakarta (25/9) – The Indonesia Competition Commission (ICC) imposed a fine on APF Holdings I, L.P (“APF”) of Rp1,500,000,000 (one billion five hundred million rupiah) for late notification of its share takeover transaction of GCA2016 Holdings Limited (“GCA2016”). The sanction was raised in the Commission Panel Hearing to Read out the Decision on Case Number 09/KPPU-M/2023 related to the alleged late notification or notification of the takeover of GCA2016 shares by APF, today at the ICC Head Office in Jakarta. Acting as the Commission Panel in the case was Dr. Drs. Chandra Setiawan, M.M., Ph.D. as Chairman of the Commission Panel, with Members of the Commission Panel consisting of Harry Agustanto, S.H., M.H. and Dr. Guntur Syahputra Saragih, M.S.M.

The case is based on APF’s acquisition of shares in GCA2016 in 2021. APF is a company with various investment activities such as taking over or trading portfolio investments, while GCA2016 is a holding company incorporated under the laws of Bermuda on 22 September 2015 under the name GCA2015 Holdings Limited, and changed its name to GCA2016 Holdings Limited on 25 November 2015. The company is engaged in acquiring, owning, operating, leasing and selling shipping containers. The sale of their products to Indonesia is conducted through a subsidiary called Global Container Assets 2016 Limited. The acquisition transaction is legally effective since the signing of the Share Purchase Agreement on 22 December 2021.

Based on the regulations, APF fulfils various conditions (especially the combined asset/sales value) for companies that are required to make notification, so it must notify the ICC 30 (thirty) days after the transaction is legally effective. There is an increase in the calculation time of the notification obligation to 60 (sixty) days in line with ICC Regulation Number 3 of 2020, so that the notification of the GCA2016 share acquisition should have been made by APF on 18 March 2022 at the latest. However, based on the facts of the trial, the ICC only received the complete notification on 23 March 2022. This proves that APF has delayed the notification by 3 (three) working days.

As a result of the delay, the Commission Panel decided that APF was legally and convincingly proven to have violated Article 29 of Law No. 5 Year 1999 and reinforced in Article 5 of Government Regulation No. 57 Year 2010, and imposed a fine of Rp1,500,000,000 (one billion five hundred million rupiah) which must be deposited into the State Treasury as a deposit of revenue from fines for violations in the field of business competition. Payment of the fine shall be paid no later than 30 (thirty) days after the Decision has permanent legal force (inkracht). The Commission Panel also ordered APF Holdings I, L.P (“APF”) to submit a bank guarantee of 20% (twenty per cent) of the value of the fine to the ICC no later than 14 (fourteen) days after receiving notification of this Decision, if it files an objection.

For information, Case Number 09/KPPU-M/2023 uses a Fast-track Examination system, where the ICC can conduct deliberations of the Commission Panel and impose a Decision after the Preliminary Examination stage, without having to go through the Continued Examination stage or its extension. The Fast-track Examination was conducted because the Reported Party had been cooperative during the trial process and admitted all the alleged violations submitted.