Electronic media for case handling
Since the introduction of KPPU Regulation No. 1 of 2020 on Electronic Case Handling, KPPU continues to use technology to assist in their investigation as the pandemic subsides. One of the reasons is that they have an increasing number of investigations involving parties residing abroad. The New Case Handling Regulation emphasizes on and recognizes the use of electronic media to assist with the investigation and examination throughout the case cycle, including in taking factual and expert witness statements, taking a reported party's statements, service of process, taking reports, administering trials, hearings, and taking evidence.
Change of behavior procedure, integrity pact and its monitoring
A key difference from the previous regulation is that under the New Case Handling Regulation, KPPU may accept a change of behavior commitment during an investigation or preliminary examination. Previously this option was only available at the examination stage. It should be noted that if the reported party commits to a change of behavior at the investigation stage and this process fails (e.g. they fail to conduct the monitoring that they commit to do, as described below), they cannot take this option again at the examination stage. In addition, the New Case Handling Regulation also sets out that cartel conduct, including price-fixing, market-sharing and bid-rigging, as well as failure to file, cannot be settled through change of behavior commitments.
The key differences between entering into change of behavior commitments at different phases of the case cycle are summarized below:
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Investigation stage
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Preliminary examination
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| Reported party(ies) |
May individually choose whether it wants to request for a change of behavior - if there is more than one reported party, each can choose differently whether to take up commitments or to continue with investigation
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Must collectively admit guilt and request for a change of behavior |
| Documents to be signed |
Statement of change of behavior |
Integrity pact
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| If KPPU approves the request |
KPPU will issue an approval letter and form a monitoring task force |
KPPU will issue an integrity pact and form a monitoring team - whose members can be from the government and/or expert
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| If KPPU declines the request |
KPPU will issue a declination letter and continue the investigation |
KPPU will proceed to the examination using the expedited or normal procedure as appropriate
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| Monitoring period - success |
KPPU will issue a letter of case dismissal |
KPPU will issue a stipulation of case dismissal in a hearing
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| Monitoring period - failed |
KPPU will continue the investigation |
KPPU will continue to the further examination stage
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Statement of objections to be provided with the summons to the hearing: Evidence to be made available early
Under the New Case Handling Regulation, the summons to the preliminary examination hearing shall be furnished with the statement of objections. This may address the current impracticality of the first preliminary examination hearing where a reported party will only find out about KPPU's concerns when the statement of objections is read out in the hearing, and will therefore only be accorded very limited time (typically seven days, or maximum fourteen) to prepare their response.
The New Case Handling Regulation also provides that evidence will be made available for verification by the parties during the preliminary examination period. Previously it is not clear when evidence would be made available, . Unfortunately, this regulation also retains the rule that reported parties may only summarize the content of evidence, may not make copies of the evidence.
Expedited procedure
An examination can be administered through an expedited procedure for a case which the reported party admits guilt and/or other alleged violation - taking into accounts the sufficiency of evidence substantiating the allegation; and/or there is no much impact in the society.
An expedited procedure consists of 30 business days of preliminary examination and the KPPU decision will be rendered within 30 business days from the end of the preliminary examination. In contrast, under the normal procedure, the preliminary examination itself is up to 30 business days, followed with further examination of 60 business days and extendable for a further 30 business days, with the KPPU decision to be rendered within 30 business days from the end of the further examination period.
Evidence
The New Case Handling Regulation still recognizes five types of evidence for competition cases and the key differences from the previous regulations are summarized below:
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Form of evidence
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KPPU Reg No. 1 of 2019
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New Case Handling Regulation
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| Witness statement |
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Witness qualification
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Anyone, having the knowledge of the case, who saw, heard, or experienced the fact directly
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Anyone, having the knowledge of the case, who saw, heard, or experienced the fact directly or indirectly
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| If witness is representing a company |
No specific details on the representative of the company as a witness |
Statement to be delivered by management (and can be accompanied by employees)
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| Expert witness statement |
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Requirement
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Having an expertise and experience according to the expertise in a curriculum vitae
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Having an expertise, certification and/or experience according to the expertise
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| Written witness statement |
No details on written witness statement |
Written witness statement is treated as documentary evidence
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| Letters and/or documentary |
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Such as
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- Notarial deed
- Deed
- Decision letters by the official
- Data containing the business activity
- Affidavit signed by the expert witness
- Electronic information and/or documents or its printouts
- Other documents and/or letters that is relevant to the case
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- Notarial deed
- Deed
- Decision letters by the official
- Documents containing the business activity
- Statements by unsworn witness - referring to the category of witness that can be heard without being sworn (i.e., family by blood (descent straight up or down until the third degree), wife or husband, ex-wife or ex-husband, or children below years old)
- Affidavit signed by the expert or factual witness
- Electronic information and/or documents or their printouts
- Other documents and/or letters that is relevant to the case
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| Language and stamp duty requirement |
Silent on the required language and stamp duty |
All submitted documentary evidence has to be made in Indonesian language and need to be affixed with stamp duty. If the original documents is in foreign language, these are to be submitted as appendix.
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| Indication |
| Definition |
It was specifically defined to indicate a violation has happened.
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It is defined to cover any conformity that shows allegation.
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Conformity of actions, events or circumstances, both between one and another, as well as with prohibited actions and/or agreements, and/or abuse of dominant position indicating that violation has happened.
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Conformity of actions, events, circumstances or data that shows alleged violation of the competition laws. |
| Reported party statement |
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Definition
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This statement includes the admission of guilt of the violation - provided during the hearing session.
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It includes the admission of guilt at the investigation stage.
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| If the reported party is a company |
No specific details. |
The statement must be made by the management of the company (can be accompanied by the employee). It cannot be represented by attorney.
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Proceeding flowchart under the New KPPU Case Handling Regulation
Click here to access the flowchart.
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