IMPORTANT POINTS ON INVESTIGATION OF BUSINESS COMPETITION CASES
“Investigation is a series of activities conducted by investigator to obtain sufficient evidences as completeness and explication of Clarification Report, Report of Study Result, Research Result, and Supervision Result.”
Before we discuss the steps and procedues on investigation of business competition cases, it is important to understand what is included in the investigation. In KPPU Regulation No. 1 of 2010 concerning Procedures on Case Handling (Perkom No. 1/2010), there are 4 things mentioned as the objects of investigation:
- Result of clarification or research on alleged violation report;
- Report on industrial study conducted by the commission;
- Result of Research conducted by KPPU working unit in monitoring division; and
- Result of supervision on entrepreneurs.
Furthermore, it is important for entrepreneurs or other concerned parties to understand the steps of investigation, subpoena, or if not willing to present in the investigation, or not willing to submit a letter of document in investigation. Check the explanation below, as regulated in Perkom No. 1/2010.
As stipulated under Article 31 paragraph (2) of Perkom No. 1/2010, stages on investigating business competition case are:
- Summon and request informations from reporting party, reported party, entrepreneur, and other concerned parties;
- Summon and request informations from witness(es);
- Inquiring experts’ opinions;
- Collecting letter or document’
- Conducting on-site inspection; or
- Conducting analysis on informations, letters, documents, and result of on-site inspection.
Furthermore, Article 31 paragraph (3) of Perkom No. 1/2010 stated that investigator shall make and sign investigation report for every investigation activity conducted.
As stated that an investigator may summon concerned parties for the purpose of investigation, the procedures and letters of summons under Article 36 of Perkom No. 1/2010 shall at least include:
- Name of summoner;
- Date of summon;
- Full name of the summoned party;
- Full address of the summoned party;
- Status of the summoned party;
- Reason of summon;
- Place of hearing;
- Date of hearing; and
- Time of hearing.
The concerned parties who have been summoned by the investigator have to present for the purpose of investigation, and submit the document required to the investigator. (Article 32-34 Perkom No. 1/2010).
If we are not willing to present nor provide information for investigation.
Article 35 paragraph (1) of Perkom No. 1/2010 stated that if reporting party, reported party, entrepreneur other concerned parties, witness, experts, or any person who is not willing to present after being summoned for the purpose of investigation, the Commission may ask for assistance of investigation to present the concerned party.
Furthermore, paragraph (3) stated that if aforesaid parties are not willing to provide information for investigation, or hamper the investigation process, the Commision may ask the Investigators to conduct investigation in accordance with the applicable law
If we are not willing to submit Letter or Document.
If this condition occurs, for example, the reported party is not willing to submit the letter or document, the Commission, in cooperation with Investigator, may search and seizure the letter and document as set in Article 35 paragraph (2) of Perkom No. 1/2010.
In addition, the Commission may impose sanction as stipulated under Article 48 paragraph (3) of Law No. 5 of 1999 concerning Prohibition on Monopolistic Practice and Unfair Business Competition (Competition Law), subject to fine in the amount of at least 1 (one) billion rupiah and in the amount of 5 (five) billion rupiah at the most, or imprisonment at a maximum period of 3 (three) months. Due to the violation of provision under Article 41 of Competition Law.
Article 41 of Competition Law stated:
- Entrepreneur and/or other parties being investigated shall be obligated to submit evidence required for the investigation and/or examination.
- Entrepreneurs are prohibited from refusing to be investigated, refusing to provide information required for the investigation and/or examination, or from hampering an investigation and/or examination process.
- If there is any violation to the provision under paragraph (2) of this article, the Commission shall assign investigators to conduct investigation pursuant to the applicable law.
Thus, the Competition Law prohibits the actions of related parties in refusing to submit letter or document required for the investigation and/or examination, because this action can hamper an investigation process.
Result of Investigation
Article 37 of Perkom No. 1/2010 stated the result of investigation as below:
- To assess the completeness and explication on alleged violation as stipulated under Article 29.
- Assesment on completeness and explication of investigation report in the form of Report on Investigation Result;
- Report on Investigation Result shall at least include:
- Identity of Entrepreneur commiting the alleged violation;
- The provisions that are allegedly violated;
- Have at least 2 (two) evidences.
Moreover, for the Report on Investigation Result which has fulfilled the requirements above, will be submitted to the working unit in charge of filing and handling cases. Otherwise, if the Report on Investigation Result does not met the requirement above, will be put into List on Termination of Investigation.
The next stage, after investigation, preliminary examination will be conducted until the decision of the Commission Assembly.
Read also: 3 stages in Executing KPPU Decision you need to know.
We hope this article is useful.
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Iskandar DP, S.H