Notification and clearance timetableFiling formalities
What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?
There is no provision concerning the deadline for filing a pre-merger notification, and accordingly, no sanction applies. A post-merger notification, on the other hand, has to be made within 30 working days of the date on which the merger becomes legally effective. For a merger involving an Indonesian limited liability company, the definition of ‘legally effective’ refers to the following alternative conditions:
- approval by the Minister of Justice and Human Rights upon the amendment of the articles of association, in case of a merger;
- receipt by the Minister on notification for particular amendments; or
legalisation by the Minister upon the deed of establishment of the company, in case of a consolidation.
In general, notification shall be made within 30 working days of the closing date. In a merger between foreign companies, the merged entity needs to provide an official document indicating that the merger has been completed. Where there are no official documents released by the relevant authority, the KPPU may accept other documents such as a statement letter stamped and signed by an authorised representative of the merged party indicating the completed merger. This alternative option is subject to change and solely at the KPPU’s discretion.
If the merged party fails to meet the deadline, according to the Commission Regulation 02/2013, the KPPU may impose fines in the amount of 1 billion rupiah per day commencing after 30 working days, with a maximum fine of 25 billion rupiah. To date, there have been fifteen decisions issued in relation to the failure to notify a merger. Under Commission Decision No. 08/KPPU-M/2012, the KPPU decided that the notification made by PT Bumi Kencana Eka Sejahtera was still in good time for notification, as the calculated cut-off date was the date of Acceptance Letter of the Change of Data of PT Andalan Satria Lestari. Meanwhile, the KPPU imposed a 4.6 billion rupiah fine on PT Mitra Pinasthika Mustika (MPM) as it notified the merger only after 62 days had elapsed since completion of the merger. MPM should have been fined the maximum amount, but in consideration of its good cooperation with the KPPU and the KPPU’s intention to make this case an example to other businesses, the KPPU reduced the amount of the penalty imposed.
Although the KPPU has made the MPM case an example to undertakings failing to notify the merger, it still found four violations on the post-closing notification submission during 2013 and 2014 alone. The first is the case of PT Muarabungo Plantation’s (MP) acquisition of PT Tandan Abadi Mandiri, where the notification was submitted 76 days after the closing. In that regard, MP was fined 1.249 billion rupiah. Secondly, the acquisition of PT Subafood Pangan Jaya by PT Balaraja Bisco Paloma (BBP) was notified 43 working days after the transaction completed, thus the KPPU imposed a 5 billion rupiah fine on BBP as the acquiring party. Third, a 1 billion rupiah fine was imposed on PT Dunia Pangan for its failure to notify its acquisition of PT Sukses Abadi Karya Inti within the 30-working-day requirement. And in the fourth, although PT Tiara Marga Trakindo (TMM) participated in the pre-merger notification (consultation), it was fined 1 billion rupiah for submitting the mandatory post-merger notification of its acquisition of PT HD Finance, Tbk (HF) 41 working days after closing. In the TMM/HF acquisition case, the KPPU also emphasised that participation in pre-merger notification does not exclude the obligation of the acquiring party to properly notify the transaction post-closing.
In 2016, the KPPU imposed fines on two more transactions because of failure to notify. In the acquisition of Woongjin Chemical Co (WCC) by Toray Advanced Material Korea Inc (TAMK), the KPPU imposed 2 billion rupiah fines on TAMK for submitting the notification four days past the deadline. This has been a landmark case as the TAMK/WCC case was the first precedent of KPPU imposing fines on a foreign company for failure to notify. Later on in 2016, the KPPU imposed an 8 billion rupiah fine, the highest so far, to LG International Corp (LG) for submitting the notification of its acquisition of PT Binsar Natorang Energi 20 working days past the deadline.
In March 2018, the KPPU fined the following two companies for their late notifications on the below transactions:
- PT Plaza Indonesia Realty, Tbk was fined 1 billion rupiah for its late notification on the acquisition of PT Citra Asri Property (Plaza Indonesia/Citra Asri). The combined assets and sales of the parties exceeded the statutory thresholds. However, the notification was only made to KPPU on 13 May 2016. Therefore, it was 345 days past due according to the KPPU press release. This sets the record for longest period of failure to notify to date; and
- PT Nirvana Property was fined 1 billion rupiah for its late notification on the acquisition of PT Mutiara Mitra Bersama (Nirvana Property/Mutiara Mitra). The transaction was legally effective on 29 December 2015, but was notified to KPPU on 7 October 2016. Therefore, according to the KPPU press release, the notification was 161 days late.
Afterwards, KPPU scrutinised five more companies until the end of 2018 and fined four of them, including PT Japfa Comfeed Indonesia Tbk (Japfa) with 3.7 billion rupiah, for its late notification on the acquisition of PT Multi Makanan Permai. Despite the insignificant transaction value, which only amounted to 483 million rupiah, the combined assets and sales of the parties still exceeded the statutory thresholds. The transaction was legally effective on 27 April 2015 but was notified to KPPU on 19 September 2016. Therefore, it was 310 days past due according to the KPPU decision and represents the second longest period of failure to notify to date. At the end of 2018, Japfa filed an appeal to the district court against the KPPU decision and received a fine reduction of 1.7 billion rupiah from the district court.
The one company that was scrutinised by KPPU because of its alleged late notification but was not declared as violating the Competition Law and thus not fined by KPPU in 2018 was PT Erajaya Swasembada, Tbk (Erajaya) when it acquired 51 per cent shares of PT Axioo International Indonesia (Axioo). According to the KPPU decision, the notification was submitted 145 days after the initial deadline on 7 July 2015. However, Erajaya was acquitted of all charges and fines as KPPU was of the view that the acquisition was exempted from the notifiable transaction, as it was conducted based on a regulation that required certain importers to have certain business activities in Indonesia.
We believe the number of companies that are fined will continue to increase because we understand that the KPPU is in the process of investigating other late notification cases.
Which parties are responsible for filing and are filing fees required?
In pre-merger notification, the merging parties (under a consolidation or merger scheme) are responsible for notifying the KPPU, while in shares acquisitions, the responsibility lies with the acquiring party. The KPPU, however, has highlighted that each firm shall keep confidential information from each other or parties in a pre-merger notification owing to the possibility that the deal may be called off. In that regard, when performing a consultation on the proposed transaction, the KPPU provides the possibility for each party to submit the data and information separately, although the pre-merger notification form must be submitted together or at the same time by the notifying party or parties. As in post-merger notification, it is the remaining entity that is responsible for filing or the acquiring party in case of an acquisition. To date, and in accordance with the applicable regulations, there are no fees required for filing.
What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?
As the Competition Law adopts mandatory post-merger notification, it does not include provisions on waiting periods or the suspension of the completion of a transaction prior to the issuance of an opinion of the KPPU.Pre-clearance closing
What are the possible sanctions involved in closing or integrating the activities of the merging businesses before clearance and are they applied in practice?
As the Competition Law only requires notification on which the KPPU will issue an opinion, which does not constitute clearance or approval, and as notification prior to the closing of a transaction (pre-merger consultation) is essentially voluntary, no sanctions apply with regard to obligation to notify.
Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?
Because foreign merger control rules generally mirror the domestic rule, no sanctions for closing before clearance apply with regard to obligation to notify.
What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?
Not applicable.Public takeovers
Are there any special merger control rules applicable to public takeover bids?
The applicable regulations do not make special provisions for criteria of notifiable public takeovers. Thus, the general rules on merger control shall also apply to public takeovers. There is only one specific criterion relating to the closing date or legally effective date of a public takeover that is considered, which is since the public disclosure of the takeover of the listed company.Documentation
What is the level of detail required in the preparation of a filing, and are there sanctions for supplying wrong or missing information?
There are two types of form for filing purposes: one is for the pre-merger notification and the other is for the post-merger. Each type is available for three different transactions: merger, consolidation and share acquisition. The pre-merger notification forms are: merger transaction (form M2), consolidation transaction (form K2) and share acquisition transaction (form A2); and the post-merger notification forms are: merger transaction (form M1), consolidation transaction (form K1) and share acquisition transaction (form A1). These forms are available online and can be downloaded from the KPPU’s website (www.kppu.go.id).
Upon completion, these forms shall be submitted to the KPPU to meet administrative requirements. The information required is general in nature and consists of basic information on the related parties. Currently, information required for a filing includes, but is not limited to:
- the identity of the merging parties, which consists of information on the name, address, members of the board of commissioners, members of the board of directors, shareholders and their shares and voting rights percentages and the value of sales and assets for the last three years prior to the merger;
- the identity of the parent company and companies under the control of the parent company, which includes information on the name and value of sales and assets prior to the merger;
- general information on the merging parties’ products, consisting of information on the brand names, product category, market share and product description;
- profile of competitors, consumers, and suppliers of the merging parties, including information on the names, addresses, brand names, market shares and product descriptions;
- a summary of the transaction, which covers the background, process and expected goals of the transaction;
- business plan for the next three years, explaining the commercial or business policies of the merging parties, the position of the merging parties as a group in the industry, along with the competition map of the industry in which the parties operate; and
- industry or market data containing the data and information of market share of the merging parties and the competitors in the industry or industries in which the parties are operating.
The submission of industry or market data is important, as failure to provide such information will mean that the notification requirement is not complete and the KPPU shall not proceed to the assessment process. In its guidelines, the KPPU has pointed out that it has the power to request further information from the merging parties or their affiliates as it deems necessary for the assessment of the transaction.Investigation phases and timetable
What are the typical steps and different phases of the investigation?
Once a notification is filed, the KPPU generally will commence by examining the notification form as well as the supporting documents. The KPPU may require more information or additional documents as it may deem necessary.
In pre-merger notification or consultation, the process consists of two phases: Phase I and II. Phase I (preliminary assessment) shall begin only if KPPU declares that documents and data submitted by the parties are complete (documents completion declaration). In other words, KPPU must first make the documents completion declaration before proceeding with the preliminary assessment period. According to current merger control, there is no firm timeline regulating how long the KPPU may take in assessing the documents completion and issuing the documents completion declaration accordingly, The KPPU will define the relevant market or markets and measure market concentration in Phase I. If the post-merger concentration or position of the merging parties does not raise competition concerns, the KPPU will issue its opinion without entering into Phase II. This process will last for a maximum of 30 working days. On the other hand, the KPPU will continue to Phase II (comprehensive assessment) if there is overlap between the business of the relevant parties creating an ex-post Herfindahl-Hirschman Index (HHI) higher than 1,800 and a delta exceeding 150, or there is a vertical (business) link between relevant parties to the transaction holding a dominant position in the market. This comprehensive assessment will last for a maximum of 60 working days following the end of the preliminary assessment. During the Phase II process, the KPPU will generally examine entry barriers, possible anticompetitive effects, efficiencies put forward by the merging parties, and possible bankruptcy defences. The submission of remedies proposals by the merging undertakings shall also take place in this phase. Although the KPPU issues this documents completion declaration, the KPPU may still request further additional information or documents to the parties of transaction or any other stakeholders throughout the overall assessment process.
Under the post-merger notification scheme, the merged entity is obliged to notify the KPPU within 30 working days of completion of the merger. As it is with the pre-merger notification or consultation, the KPPU will only commence its assessment after it issues the documents completion declaration. The post-merger notification assessment consists of only one phase that will last for a maximum of 90 working days before an opinion on the merger is issued. The substantive test will be similar to that of the pre-merger notification. The KPPU may request additional request for information or documents throughout this post-merger notification assessment phase.
The participation in the voluntary pre-merger notification does not make the parties free from the post-merger notification obligation. However, if the merging parties undertook a pre-merger notification and an opinion of the KPPU for that process has been issued before the merger is completed, there will be no reassessment when the merger is notified following the completion. Reassessment will only be conducted if there are material changes to data or market condition, such as:
- there is a reduction of the number of undertakings in a highly concentrated market (Spectrum II, see question 19) causing the HHI to change by more than 500;
- there are changes to the post-merger business plan; or
- the predicted post-HHI during a pre-merger notification is below 1,800, but after recalculation in the post-merger review it is above 1,800.
Other than the documents completion declaration, all the time frames mentioned above are maximum periods that cannot be extended in any case.
During the assessment process, either in pre-merger notification or post-merger notification, the KPPU may, and usually will, invite the merging parties to meet and clarify information and documents that have been submitted to them. For this clarification meeting, the KPPU will provide the parties with the list of questions to be discussed and clarified. In addition, the KPPU may require the parties to submit a summary of notification (SON). The SON’s objective is to summarise all relevant facts (which have usually been provided to the KPPU in the notification bundle) needed by the KPPU to assess the transaction. Basically, it is not a compulsory document that shall be submitted but it would help the KPPU to expedite the assessment process, particularly in identifying relevant facts needed for their assessment. The KPPU does not set any specific deadline for submitting the SON.
What is the statutory timetable for clearance? Can it be speeded up?
Commission Regulation 02/2013 only prescribes the maximum period for the KPPU to complete its assessment and therefore the assessment process may be completed earlier than the maximum statutory period (see question 17 for a more detailed time frame). However, as mentioned in question 17 above, the assessment process will only be started by the KPPU if all requested documents and information have been provided and the KPPU has issued a documents completion declaration. As there is no provision governing the timeline for the KPPU issuing the documents completion declaration, the periods to obtain the completeness status from the KPPU vary and depend on, among others, the nature or complexity of the transaction and the sufficiency of information provided by the parties, as well as the number of notified transactions being reviewed by the KPPU.