SUPREME COURT UPHOLDS DECISION OF ICC ON PT CONCH SOUTH KALIMANTAN CEMENT.

The Supreme Court of the Republic of Indonesia by virtue of its Cassation Decision Number 951 K/Pdt.Sus-KPPU/2021 issued on August 12, 2021 has upheld Decision of the Indonesia Competition Commission (ICC) regarding the case of the violation of the practice of selling at a loss or very low price fixing by PT Conch South Kalimantan Cement in selling cement in South Kalimantan. Based on the said Supreme Court’s decision, PT Conch South Kalimantan Cement is obligated to implememmt such ICC’s decision, namely to pay for a penalty of IDR22,352,000,000 (twenty-two billion three hundred and fifty-two million rupiah) which must be remitted to the State Treasury as violation penalty revenues in the field of business competition and must be paid by no later than 30 (thirty) days after the decision has had a permanent legal force (inkracht),as set forth in the Commands of ICC’s Decision. Based on Article 22 paragraphs (2) and (3) of Government Regulation Number 58 of 2020 regarding the Management of Non-Tax State Revenues (PNBP), delayed payments of the penalty will be subject to a delayed fine of 2% (two percent) per month of the value of the penalty.

This case stemmed from a public report and was made as an initiative case that raised the alleged violation of Article 20 of Law No. 5/1999, particularly with regard to the practice of selling at a loss or very low price fixing by PT Conch South Kalimantan Cement, the purpose of which is alleged to get rid of or shut off the business of its competitors in the relevant market. The Commission Panel handling Case No. 03/KPPU-L/2020 in ICC’s decision which was read out on January 15, 2021 concluds that PT Conch South Kalimantan Cement has been legally and convincingly proven to have violated Article 20 of Law No. 5/1999 and has been subject to an administrative penallty of IDR22,352,000,000 (twenty-two billion three hundred and fifty-two million rupiah).

PT Conch South Kalimantan Cement lodged an Objection to the Commercial Court at the Central Jakarta District Court (PN Niaga Jakpus) on February 3, 2021. The Commercial Court at Central Jakarta District Court later rejected the said objection (appeal) on March 4, 2021. PT Conch South Kalimantan Cement again made further legal remedy through the lodging of Cassation to the Supreme Court of the Republic of Indonesia on June 30, 2021 under case register number 951 K/Pdt.Sus-KPPU/2021. Finally, the Supreme Court of the Republic of Indonesia decided to reject the Cassation petition lodged by PT Conch South Kalimantan Cement on August 12, 2021. Therefore, the ICC’s Decision has had a permanent legal force (inkracht) and must be implemented by PT Conch South Kalimantan Cement.