Answer ... Based on KPPU Regulation 1/2019 on the Procedure to Handle Monopolistic Practices and Unfair Competition Cases (the ‘Case Handling Regulation’), the pre-investigation stage may be commenced by an assigned investigator of the KPPU based on:
- the KPPU’s own initiative; or
- a complaint filed by an undertaking, consumer, other entity or other government agency.
If in the pre-investigation stage KPPU found at least 1 evidence of an alleged violation, a formal investigation can be initiated.
The Case Handling Regulation was issued by the KPPU in February 2019 and supersedes the previous case handling procedure regulation. The most notable feature of the new regulation is the introduction of behavioural remedies at the preliminary examination stage, which allows a reported party to plead guilty at the beginning of a hearing and agree to change its behaviour in order to end the examination process. Another new provision deals with the recognition of indirect evidence and expansion of the measures that the KPPU can take against reported parties that do not comply with its final and binding decision.
Answer ... Article 36 of the Competition Law provides that the KPPU has the authority to:
- receive complaints;
- investigate cartel allegations;
- investigate the summoning parties, witnesses and experts;
- reach conclusions from its investigation;
- request statements or clarification from relevant government institutions;
- determine and stipulate the existence of losses of an undertaking or society; and
- impose administrative sanctions.
Answer ... Cooperation between the KPPU and competition authorities in other jurisdictions can be conducted officially, usually based on a memorandum of understanding or on an ad hoc basis.
Based on public sources, the KPPU has signed memoranda of understanding with:
- the Competition and Consumer Commission of Singapore;
- the Japan Fair Trade Commission;
- the Korean Fair Trade Commission; and
- United States Federal Trade Commission.
The cooperation between the KPPU and these foreign competition authorities covers, among others, the exchange of information in relation to competition law enforcement. However, as yet there is no precedent of such cooperation, in particular regarding information exchange with respect to the investigation or examination of competition cases.
Answer ... No. Under the Case Handling Regulation, an investigation can be conducted only by the assigned investigator, who must be an employee of the KPPU.
Answer ... Under Article 36 of the Competition Law, the KPPU is authorised to summon:
- the undertakings (as the alleged perpetrators);
- factual witnesses and experts; and
- other related parties that are considered to have knowledge of the violation.
The Case Handling Regulation further elaborates on the tasks and authorities of the KPPU. Based on the Case Handling Regulation, the KPPU has a different function for each stage in the proceedings, as follows:
In the pre-investigation and investigation stages, the KPPU’s examining investigators are authorised to:
summon the reporting party, reported parties, witnesses and experts;
- perform on-site investigations;
- obtain letters and/or documents relating to the case;
- gather data and information relating to assets and sales values of the reported parties; and
- conduct assessments of statements, letters and/or documents and on-site investigations.
In the filing, preliminary and further examination stages, the KPPU prosecuting investigators are authorised to:
- review the investigation results report drafted by the KPPU’s examining investigators, to be further reflected in an allegation report;
- read the allegation report;
- propose any evidence, witnesses or experts for the hearing;
- examine the authenticity of letters and/or documents in the hearing;
- prove the allegations in a hearing, which may involve summoning factual witnesses and experts and other related parties that are considered to have knowledge of the violation, and receive evidence; and
- submit a conclusion on the examination process.
In addition, besides the two types of KPPU investigators mentioned above, the Commission Assembly has the following powers in the preliminary and further examination stages:
- to determine the preliminary examination schedule;
- to open and lead the hearing;
- to provide the opportunity for the reported parties to propose behavioural remedies during the preliminary examination stage;
- to prepare the preliminary examination result report;
- to summon the reported parties, factual witnesses and experts, and other related parties that are considered to have knowledge of the violation;
- to submit evidence and conclusions;
- to perform on-site examinations;
- to decide the case; and
- to impose sanctions against undertakings.
A registrar, which is usually comprised of a few individuals, and a secretary will assist the Commission Assembly in dealing with administrative matters for the hearing.
Answer ... Under Article 19 of the Case Handling Regulation, a reported party – whether a company or an individual – has the obligation to attend upon being summoned by the KPPU and to provide any information requested by the KPPU. If the reported party declines such summons or request, Article 20 of the Case Handling Regulation allows a KPPU investigator to report the rejection as a violation of Article 41(3) of the Competition Law.
Nonetheless, under Article 75 of the Case Handling Regulation, the reported party has the right to be accompanied by counsel or a lawyer during the investigation. In several recent cases, to ensure the legal standing of the external counsel, the KPPU investigator requested that the advocates show their certification during the investigation and examination stages.
Answer ... Under the Law No. 18 of 2003 on Advocates, any information that is known and/or obtained by an advocate from a client based on an attorney-client relationship must be kept confidential. Moreover, an advocate is also obliged to safeguard the confidentiality of his or her relationship with the client, including protecting files and documents from seizure or inspection and protecting electronic communications from copying. Therefore, attorney-client privilege applies to all information and/or communications between advocates and their clients during all stages of the investigation by the KPPU.
Answer ... The KPPU, according to the Competition Law, must maintain the confidentiality of any information declared to be confidential by the undertaking. However, the Competition Law and the Case Handling Regulation are silent in terms of whether an ongoing pre-investigation or investigation will be communicated to the public. Nevertheless, to comply with the standard procedure in other legal cases in Indonesia, it is expected that the KPPU will not announce the details of an ongoing pre-investigation or investigation to the public. On the other hand, it is expected that the KPPU will inform the public of the industry, the allegations, the undertakings involved and an indicative timeline for the proceedings through its website or social media.
At the examination stage, the KPPU hearing is open to the public. The hearing schedule will be set out on the KPPU’s website. In addition, the KPPU’s decision will be available to the public. The decision will usually contain information about the reported parties, a case summary, the KPPU’s consideration and assessment, and any injunction imposed. However, if any information is categorised as confidential, it will not be included in the public version of the KPPU’s decision.