ICC PROMOTES THE APPLICATION OF THE LEGAL PRINCIPLE OF PRESUMPTION OF INNOCENCE IN COMPETITION PROCEDURAL LAW
Jakarta (10/4) – Indonesia Competition Commission (“ICC”) promotes the application of the legal principle of presumption of innocence in competition procedural law through Regulation of ICC No. 2 of 2023 on Procedures for Handling Cases of Monopolistic Practices and Unfair Business Competition (“PerKPPU 2/2023” [“ICC Regulation 2/2023]”) which was issued on March 30, 2023. This Regulation replaces Regulation of ICC No. 1 of 2019 on Procedures for Handling Cases of Monopolistic Practices and Unfair Business Competition (“PerKPPU 1/2019” [“ICC Regulation 1/2019]). The ICC Regulation 2/2023 among other things regulates a more detailed provision on instruments of evidence, the possibility of quick examinations, opportunities for behavior change by business actors at the pre-investigation stage, and improvement of the confidentiality of data/information. Various developments in this procedural law have been made in line with the increased complexity of the cases of monopolistic practices and unfair business competition, so that the case handling system at the ICC must observe the principle of simplicity, quickness, and efficiency. The said regulation has been put into effect as from its promulgation date, namely March 31, 2023.
Based on the law as we know it, the handling of cases at the ICC is provided for through an ICC regulation. To date, the ICC has made various developments in the regulation for such case handling. The ICC last issued Regulation of ICC No. 1 of 2019 on February 4, 2019. In its practice, in response to the developments in the information technology and the increased complexity of cases, the ICC has again revised the said regulation through ICC Regulation 2/2023. This ICC Regulation 2/2023 constitutes a case handling regulation at the ICC that has been promulgated for the first time in the Official Gazette of the Republic of Indonesia (No. 293 of 2023).
The several new points contained in the said ICC Regulation 2/2023 are among other things:
- More detailed elucidation on the instruments of evidence, especially in mentioning the various applications that are in compliance with each of the 5 (five) types of instruments of evidence that can be used by the ICC.
- The regulating of a proper method of summons as well as provisions regarding interpreters and legal counsels in the
- Provisions regarding pre-investigations have been adjusted to Decree of the Constitutional Court Number 85/PUU-XIV/2016 limiting that the pre-investigations of the ICC as materials for the collection of instruments of evidence for examination material purposes, thus, the terms preliminary research and pre-investigations are used.
- There is likelihood of quick case examinations. Quick examinations are conducted by the Commission Panel for handling cases at Preliminary Examination stage, with the likely performance of deliberations of the Commission Panel without going through Follow-up Examination stage. Quick examinations are conducted towards Reported Parties admitting a violation of the Law and/or other alleged violations based on the approval or decision of the Commission Meeting.
- Behavior changes that previously could be granted to Reported Parties at Preliminary Examination phase, the same can also be granted at pre-investigation phase under this new regulation. However, there is a slight difference from the previous regulation, this ICC Regulation 2/2023 underscores that behavior changes can only be applied for violations other than Article 5 (price fixing), Article 9 (division of areas), Article 11 (cartel), Article 22 (bid rigging), and Article 29 (delayed notification).
- The regulating of the confidentiality of data/information, wherein the Commission Panel can declare the data and/or information submitted confidential and not presented in the Examination or included in the copy of Decision of the
Upon the taking effect of this ICC Regulation 2/2023, the handling of cases that are still or are in progress and have yet to obtain a Commission Decision up to and including March 31, 2023 will still be adhered to ICC Regulation 1/2019 or Commission Regulation which according to the Commission is in favor of Reported Parties will apply to the handling of cases not yet entered the Examination phase.
The several changes made by the ICC through ICC Regulation 2/2023 indirectly underscore that the results of enforcing the competition law are not merely in the shape of the imposition of fines, but also in the shape of behavior change. Through this ICC Regulation 2/2023, the ICC gives priority to a simple, quick, and efficient principle in the midst of the complexities of the cases of monopolistic practices and unfair business competition that are not only time- and material-consuming. Therefore, hopefully the business actors involved in violations can immediately make improvements in the future.