1 Legal and enforcement framework
1.1 Which legislative and regulatory provisions govern merger control in your jurisdiction?
Merger control in Indonesia is primarily regulated by Law 5/1999 on the Prohibition of Monopolistic and Unfair Business Competition Practices (the ‘Anti-monopoly Law') and its implementing government regulation (GR), GR 57/2010 on Mergers, Consolidations and Acquisitions of Shares that May Result in Monopolistic and Unfair Business Competition Practices. Indonesia's Business Competition Supervisory Commission (Komisi Pengawas Persaingan Usaha) (KPPU) has also issued KPPU Regulation 2/2013 on Merger Guidelines, which sets out internal operating guidelines for the KPPU, albeit issued publicly.
1.2 Do any special regimes apply in specific sectors (eg, national security, essential public services)?
Generally, no specific regime applies in specific sectors, with the exception of the business activities of small businesses and cooperatives. There is also a different merger control filing threshold for mergers involving banks (see question 2.6).
1.3 Which body is responsible for enforcing the merger control regime? What powers does it have?
The merger control regime in Indonesia is overseen by the KPPU, which has issued several regulations on merger control.
2 Definitions and scope of application
2.1 What types of transactions are subject to the merger control regime?
The transactions that are subject to the merger control regime are mergers, consolidations and share acquisitions. In general, a ‘merger' is defined as a combination of two entities in which one entity is dissolved and the other survives. A ‘consolidation' is a consolidation of two entities in which both entities are dissolved and a new entity is established.
A ‘share acquisition' is defined as a legal action undertaken by a business actor to acquire shares in a company which may result in a change of control over the target company (see question 2.2 on the test for control).
2.2 How is ‘control' defined in the applicable laws and regulations?
Under GR 57/2010, control over a company is deemed to exist where a business actor or business actors acting together:
- own(s) more than 50% of the shares or voting rights of the company; or
- own(s) 50% or less of the shares or voting rights of the company, if and to the extent that such person or person(s) acting together can influence and determine that company's policy or management.
There are no clear criteria to determine when a party is deemed able to influence and determine a company's policy or management; therefore, this is determined by the Business Competition Supervisory Commission (KPPU) on a case-by-case basis.
2.3 Is the acquisition of minority interests covered by the merger control regime, and if so, in what circumstances?
If an acquisition of minority interests does not result in a change of control, it will not be categorised as an ‘acquisition' in the context of the merger control regime. An acquisition of minority interests might still be considered a change of control if, for example, the acquirer enters into a shareholders' agreement with the other shareholders under which it will have a certain degree of control through the ability to appoint a majority of management members.
2.4 Are joint ventures covered by the merger control regime, and if so, in what circumstances?
Currently, the establishment of a joint venture is not in itself a notifiable transaction. However, if a transaction involving a joint venture constitutes a merger under the Anti-monopoly Law, the transaction will be notifiable.
2.5 Are foreign-to-foreign transactions covered by the merger control regime, and if so, in what circumstances?
In its guidelines, the KPPU has taken the position that it has jurisdiction over any merger located outside Indonesia if the transaction directly affects the Indonesian domestic market in any of the following manners:
- All parties involved in the merger, consolidation or share acquisition conduct business activities in Indonesia, whether directly or indirectly, such as through Indonesian subsidiaries;
- One of the parties to the merger, consolidation or share acquisition operates in Indonesia and the counterparty has sales in Indonesia; or
- One of the parties to the merger, consolidation or share acquisition operates in Indonesia and the counterparty has a sister company that operates in Indonesia.
Accordingly, and in addition to the above, foreign-to-foreign mergers will be caught by Indonesia's merger control regime if the relevant filing thresholds are met and the parties involved in the merger are not affiliates.
2.6 What are the jurisdictional thresholds that trigger the obligation to notify? How are these thresholds calculated?
GR 57/2010 applies the following alternative thresholds to assess whether a transaction is subject to merger control, both of which are calculated on a nationwide basis:
- The combined value of assets in Indonesia exceeds IDR 2.5 trillion; or
- The combined turnover in Indonesia exceeds IDR 5 trillion.
Only turnover relating to customers located in Indonesia and the value of assets located in Indonesia are taken into account.
The turnover or assets to be taken into account for verification against the thresholds are the relevant nationwide turnover/asset value mentioned above of the parties involved in the merger, as well as that of the group companies of the parties.
There are no specific rules for calculating the relevant nationwide turnover/asset value; the calculation is based simply on the cumulative relevant nationwide turnover/asset value of the parties and their group companies. The relevant nationwide turnover/asset value of non-wholly owned group companies is included in full in such calculation, provided that they are controlled by the relevant party.
The calculation is based on the most recent audited (annual) financial reports of the parties and their group companies. Specific rules apply to significant swings of more than 30% in turnover/asset value. Since only national turnover is taken into account, revenue derived from export activities should be excluded from the calculation.
Significantly higher thresholds apply in the banking sector. For banking transactions, post-merger notification is required if the combined value of assets in Indonesia exceeds IDR 20 trillion.
If the transaction is conducted between a bank and a non-banking institution, the applicable threshold is a combined value of assets in Indonesia that exceeds IDR 2.5 trillion.
2.7 Are any types of transactions exempt from the merger control regime?
A merger, consolidation or share acquisition conducted between affiliated parties is exempt from mandatory post-merger notification. Parties are considered to be affiliated if:
- one controls the other (whether directly or indirectly); or
- they are controlled by the same entity.
Mergers, consolidations and share acquisitions between companies that are controlled by the government (eg, state-owned enterprises) do not qualify for this exemption.
3.1 Is notification voluntary or mandatory? If mandatory, are there any exceptions where notification is not required?
Post-merger notification is mandatory for any merger, consolidation or share acquisition that meets the Indonesian turnover/asset value thresholds. Such transaction must be reported to the Business Competition Supervisory Commission (KPPU) within 30 working days of the effective date of the transaction.
In addition to the post-merger notification obligation, the parties to the transaction can elect for a voluntary pre-merger consultation with the KPPU if the transaction meets the assets or sales thresholds as set out above and there is a written agreement between the parties (eg, in the form of a memorandum of understanding or other written agreement).
A pre-merger consultation does not exempt the parties from the requirement to lodge a post-merger notification. However, the benefit of the voluntary pre-merger consultation is that the parties can secure the KPPU's opinion on the transaction in advance and the KPPU should be consistent in its opinion once the post-merger filing is made, provided that there are no significant changes in the facts surrounding the transaction. Further, if the KPPU issues a favourable opinion on the prospective merger during the pre-merger consultation and no substantial or material changes are subsequently made to the transaction, then the KPPU will not re-evaluate the completed merger.
3.2 Is there an opportunity or requirement to discuss a planned transaction with the authority, informally and in confidence, in advance of formal notification?
In practice, the KPPU is open to informal and confidential discussions with the parties regarding their planned transaction. However, the KPPU will not issue anything in writing pending submission of the formal notification.
3.3 Who is responsible for filing the notification?
The party responsible for filing the mandatory post-merger notification is the surviving company in a merger, the company resulting from the consolidation in a consolidation and the acquirer in an acquisition. The same also applies to the pre-merger consultation.
3.4 Are there any filing fees, and if so, what are they?
There are no fees required to file a merger report with the KPPU.
3.5 What information must be provided in the notification? What supporting documents must be provided?
Notification forms are available on the KPPU website which the applicant must complete for filing purposes, along with the following supporting documents:
- power of attorney to submit the application (if required);
- articles of association of the parties to the transaction, including ultimate shareholders and subsidiaries (as relevant);
- company profiles of the parties;
- financial reports of the parties, including ultimate shareholders and subsidiaries (as relevant) for the last three years;
- ownership schemes of the parties, from the ultimate shareholders to their subsidiaries (as relevant);
- document evidencing that the merger is lawfully effective (or, in the case of a voluntary pre-merger consultation, an indication of potential legal issues relating to the merger);
- summary of the merger;
- business plan for the next three to five years;
- analysis of the industry in which the parties operate; and
- policies to address the effects of the merger.
The KPPU has the authority to request additional information from the parties or their affiliates as it deems necessary for its review. The KPPU will begin its review only once all documents have been received.
3.6 Is there a deadline for filing the notification?
A post-merger notification must be submitted within 30 working days of the date on which the transaction becomes legally effective. For a merger or direct acquisition of an Indonesian limited liability company, ‘legally effective' means that any one of the following conditions has been satisfied:
- approval by the minister of law and human rights of the amendment to the articles of association, in case of a merger;
- acknowledgment of notification from the minister of law and human rights, with or without amendments to the articles of association; or
- approval by the minister of law and human rights of the deed of establishment of the company, in case of a consolidation.
In general, the notification must be made no later than 30 working days after the date of completion of the transaction.
In case of a merger between foreign companies, the merged entity must provide an official document released by the competent authority evidencing that the merger has been completed. If no official documents are released by the relevant authority, the KPPU may accept other documentation such as a statement or press release confirming that the merger has been completed.
3.7 Can a transaction be notified prior to signing a definitive agreement?
As described in question 3.1, the KPPU allows for voluntary pre-merger consultation.
3.8 Are the parties required to delay closing of the transaction until clearance is granted?
There is no prohibition on closing, as the merger control regime in Indonesia is based on post-merger notifications. Closing may be delayed if the parties opt to conduct a voluntary pre-merger consultation and wish to obtain the KPPU's decision on the merger before closing the transaction.
3.9 Will the notification be publicly announced by the authority? If so, how will commercially sensitive information be protected?
In practice, the KPPU will announce on its website that notification has been received and is under review. This includes voluntary pre-merger and post-merger notifications. The KPPU also issues press releases and uploads any opinions and decisions (Bahasa Indonesia versions) to its website. Regardless, the KPPU will not disclose any commercially confidential information contained in the notifications, opinions or decisions.
4 Review process
4.1 What is the review process and what is the timetable for that process?
GR 57/2010 provides that the maximum period for the Business Competition Supervisory Commission (KPPU) to complete its review is 90 working days.
In a mandatory post-merger notification, there is only one phase of review, which involves the following steps:
- The relevant party is obliged to notify the KPPU within 30 working days of the transaction becoming legally effective. The KPPU will commence its review upon completion of the notification form and the supporting documents.
- If the KPPU considers the notification to be incomplete, the relevant party must submit the outstanding information or documents no later than 30 working days after the initial submission date; otherwise, the KPPU may consider the notification not to have been made and impose sanctions for failure to notify.
- Once all requirements are deemed to have been met, the KPPU will begin its review, which will last a maximum of 90 working days, before issuing an opinion. The tests are similar to those implemented in a voluntary pre-merger consultation.
In a pre-merger consultation, the review is usually performed in two phases: a preliminary evaluation and a comprehensive evaluation.
The steps involved in a Phase I (preliminary) evaluation are as follows:
- The KPPU will define the relevant market or markets and measure market concentration. If the concentration caused by the merger raises no competition concerns, the KPPU will issue its opinion without any further review.
- This process will last no longer than 30 working days.
The steps involved in a Phase II (comprehensive) evaluation are as follows:
- The KPPU will undertake a comprehensive evaluation if it finds that the proposed transaction may have potential anti-competitive effects during Phase I.
- The comprehensive evaluation will last no longer than 60 working days following the end of Phase I.
- The KPPU will generally examine entry barriers, possible anti-competitive effects, efficiencies put forward by the parties and possible failing firm defences.
4.2 Are there any formal or informal ways of accelerating the timetable for review? Can the authority suspend the timetable for review?
The 90-day period will start only after KPPU has formally acknowledged that the documents submitted are complete. This can prolong the entire process, as this will depend mostly on how fast the applicant can complete all filing documents.
4.3 Is there a simplified review process? If so, in what circumstances will it apply?
No simplified process is available for mandatory post-merger notification. In the pre-merger consultation, the KPPU will not proceed with Phase II if the concentration caused by the merger raises no competition concerns, in which case the KPPU will issue its opinion without any further review.
4.4 To what extent will the authority cooperate with its counterparts in other jurisdictions during the review process?
The current regulatory regime does not provide for any circumstances in which the KPPU may contact or cooperate with its counterparts in other jurisdictions during the review process.
4.5 What information-gathering powers does the authority have during the review process?
During the review process, the KPPU may collect data and information from various interested parties, such as competitors, consumers, governmental authorities and any other parties that the KPPU deems appropriate.
4.6 Is there an opportunity for third parties to participate in the review process?
Generally speaking, there is no opportunity for third parties to participate in the review process, other than at the KPPU's invitation during the information-gathering stage, as described in question 4.5.
4.7 In cross-border transactions, is a local carve-out possible to avoid delaying closing while the review is ongoing?
As discussed in question 3.8, the merger control regime in Indonesia is based on post-merger notification and there should be no delay to closing. Closing may be delayed if the parties opt to conduct a voluntary pre-merger consultation and would like to obtain the KPPU's decision on the merger before closing the transaction.
4.8 What substantive test will the authority apply in reviewing the transaction? Does this test vary depending on sector?
GR 57/2010 and the corresponding KPPU Regulation set out the substantive tests that will be applied by the KPPU when reviewing a merger. The KPPU's review will involve, at the very least, an evaluation of:
- market concentration;
- barriers to market entry;
- potential anti-competitive behaviour;
- efficiencies following the merger;
- the planned avoidance of bankruptcy of one of the parties to the transaction; and
- any other reason that may be regulated in a future KPPU rule.
The KPPU will begin its assessment and evaluation by measuring the market concentration following the merger. The KPPU usually uses the Herfindahl–Hirschman Index (HHI) to measure the concentration. Where data is not available to calculate the HHI, the KPPU will use another method, such as the concentration ratio.
In general, the KPPU divides the post-merger HHI into two spectrums:
- Spectrum I (low concentration, with a HHI below 1,800); and
- Spectrum II (high concentration, with a HHI above 1,800).
The KPPU will identify competition concerns only if the post-transaction HHI falls within Spectrum II and the difference between pre-merger and post-merger concentration exceeds 150 points.
This test applies across all sectors.
4.9 Does a different substantive test apply to joint ventures?
No other substantive test is applicable to joint ventures, since the establishment of a joint venture is not a notifiable transaction.
4.10 What theories of harm will the authority consider when reviewing the transaction? Will the authority consider any non-competition related issues (eg, labour or social issues)?
Other than the considerations in question 4.8, the KPPU generally does not take into account other issues not relating to competition.
5.1 Can the parties negotiate remedies to address any competition concerns identified? If so, what types of remedies may be accepted?
The parties will be given the opportunity to propose remedies during the evaluation stage of the post-merger notification. However, in its decision the Business Competition Supervisory Commission (KPPU) will ultimately determine the remedies (whether structural or behavioural) it deems necessary to address any competition concerns.
5.2 What are the procedural steps for negotiating and submitting remedies? Can remedies be proposed at any time throughout the review process?
The KPPU will prepare and provide a remedy assessment report containing a comprehensive analysis and reasoning for its conclusion as to whether the merger may give rise to anti-competitive effects. The party that is responsible for filing may submit a remedies proposal within 14 working days of the date of delivery of the remedy assessment report from the KPPU.
The remedies that can be proposed include structural remedies and behavioural remedies. Structural remedies include asset and share divestments and other conditions that may increase competition. Behavioural remedies include granting IP licences and increasing (potential) competition by reducing or removing barriers to entry (eg, unwinding exclusive contracts, reducing consumer switching costs and removing bundling/tying).
The KPPU will review the proposed remedies submitted. If it accepts the proposal, the KPPU will issue a favourable opinion with requirements that must be satisfied. If the KPPU does not accept the proposed remedies, it will issue an unfavourable opinion.
5.3 To what extent have remedies been imposed in foreign-to-foreign transactions?
Structural and/or behavioural remedies are rarely imposed on foreign mergers. Typically, where the KPPU believes that a foreign merger will have anti-competitive effects in a certain market in Indonesia, it will require the parties to submit regular annual reports to the KPPU on market share developments in Indonesia for three consecutive years following the conclusion of the foreign merger.
6.1 Can the parties appeal the authority's decision? If so, which decisions of the authority can be appealed (eg, all decisions or just the final decision) and what sort of appeal will the reviewing court or tribunal conduct (eg, will it be limited to errors of law or will it conduct a full review of all facts and evidence)?
The parties can appeal once the Business Competition Supervisory Commission (KPPU) has issued its opinion on the merger filing based on its review of the post-merger notification or the voluntary pre-merger consultation.
If the KPPU issues an unfavourable opinion in respect of a merger filing, or in case of breach of a condition as set out in a favourable opinion, the KPPU may initiate an investigation and issue a decision. In such case, or if the KPPU prohibits a merger by adopting a decision, the parties may file an appeal with the relevant district court against the KPPU's decision within 14 working days of receipt of the decision. In turn, a decision of the district court can be appealed to the Supreme Court.
6.2 Can third parties appeal the authority's decision, and if so, in what circumstances?
No, third parties cannot appeal KPPU or court decisions as discussed in question 6.1.
7 Penalties and sanctions
7.1 If notification is mandatory, what sanctions may be imposed for failure to notify? In practice, does the relevant authority frequently impose sanctions for failure to notify?
If the relevant party fails to meet the mandatory post-merger filing deadline, the Business Competition Supervisory Commission (KPPU) may impose a fine of IDR 1 billion for each day of delay, up to a maximum of IDR 25 billion in total.
7.2 If there is a suspensory obligation, what sanctions may be imposed if the transaction closes while the review is ongoing?
This question is not relevant, since the filing is made post-merger.
7.3 How is compliance with conditions of approval and sanctions monitored? What sanctions may be imposed for failure to comply?
If the KPPU issues an opinion in which there is no assumption of monopolistic or unfair business competition practices as a result of the merger, but with requirements that must be satisfied by the parties to the transaction, the KPPU will monitor implementation of the requirements set out in its opinion post-transaction. The parties may be required to submit annual reports on their market share development for three consecutive years following the issuance of the KPPU opinion.
8 Trends and predictions
8.1 How would you describe the current merger control landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?
The House of Representatives has proposed an amendment to the Anti-monopoly Law, which has been added to the National Legislation Programme for 2019. Under the latest draft of the amendment, the relevant transaction party will be required to notify the KPPU prior to a merger, consolidation or share acquisition, in order to obtain the KPPU's approval. While the proposed amendment to the Anti-monopoly Law has been identified as priority legislation for the House of Representatives, there is no guarantee that it will be passed in the next 12 months.
9 Tips and traps
9.1 What are your top tips for smooth merger clearance and what potential sticking points would you highlight?
In addition to submitting the completed notification form and the completed supporting documents as quickly as possible, any market-related information contained in the notification form (eg, on competitors or their respective market shares) should be supported by a report prepared by an independent third party, such as a surveyor or researcher. The Business Competition Supervisory Commission (KPPU) may still conduct its own research to verify the market information contained in the application form, but the applicant will already have its own independent third-party research in the event that discussions with the KPPU over research results are necessary. Having these discussions and supplying the KPPU with additional information to support the data in the notification form will help the KPPU to expedite the review process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.