Indonesia’s competition authority, the KPPU (Komisi Pengawas Persaingan Usaha), has issued a new merger filing regulation, KPPU Regulation No. 3 of 2023 regarding Evaluation of Merger, Consolidation, or Acquisition of Shares and/or Assets which May Result in Monopolistic Practices and/or Unfair Competition (“KPPU Reg 3/2023”).
Because this regulation is so new, certain provisions may require further clarification. Nonetheless, based on the text of the regulation, the following appear to be the biggest changes under KPPU Reg 3/2023:
Localization of Asset Threshold
The calculation of the relevant parties' asset value against the applicable IDR 2.5 trillion threshold under Article 7 of KPPU Reg 3/2023 is now limited to assets located within the territory of Indonesia, as opposed to worldwide assets. The previously adopted “worldwide asset value as asset threshold” understanding no longer holds true. This approach of limiting assets to assets within Indonesia now mirrors the KPPU’s position in respect of the turnover threshold, which has always been limited to Indonesian-only turnover.
Potential Changes to Local Nexus Requirement
KPPU Reg 3/2023 no longer has a specific provision addressing the notifiability of offshore transactions (under the previous regulation offshore transactions were only notifiable if one additional requirement was met, i.e., at least one of the relevant parties either conducted business or generated turnover in Indonesia). Article 11 of KPPU Reg 3/2023 simply posits a new requirement for a filing obligation to be triggered, namely that the relevant transaction must be carried out “between business actors with assets and/or turnover, whether directly or indirectly, in Indonesia.” This provision may potentially be construed as requiring a local nexus in respect of both the acquiring group and the acquired group in an offshore transaction. We are currently seeking KPPU confirmation.
New Online Notification System and Shortened Review Timetable
The KPPU introduced an online notification system (accessed through notifikasi.kppu.go.id), which is supposed to be the only means of submitting a notification post-KPPU Reg 3/2023, replacing submission by email or hard copies. The KPPU now has three business days to review the completeness of the submission and subsequently issue a registration receipt, concluding whether the notified transaction is subject to mandatory notification (transactions notified to the KPPU but determined as non-mandatory will be dropped from further review). This process effectively eliminates the 60-business day period of clarification under the previous regulation, shortening the KPPU’s statutory review timetable from a total of 150 business days to 90 business days. As before, KPPU Reg 3/2023 does not provide any sanction if the KPPU misses this timetable. A merger filing is not thereby automatically approved.
Potential Sanction for Inaccurate Submission
The KPPU now has the authority to annul a registration receipt or a stipulation containing the result of its review of a notification, ex post facto, upon a finding of inaccurate submission, under Article 15 of KPPU Reg 3/2023. This is especially important because the provision expressly recognizes how an annulment of a registration receipt may result in a notification that would otherwise have been made within the 30-business day deadline being deemed late. This exposes the notifying party to potential litigation with the KPPU in respect of the late notification, which, if decided against the notifying party, would typically cost the party billions of rupiah in late filing fees. It is currently unclear how the KPPU defines “inaccurate information,” e.g., whether a typographical error could trigger the KPPU to exercise its authority, and we are seeking clarification from the KPPU.
The provision discussed above seems to suggest that the date of registration receipt will serve as the marker in determining whether a filing is made within the 30-business day period. Therefore, it may no longer be possible for a filing to be made on the very last day of this period, opting instead to set an artificial deadline of “three business days before the expiry of the 30-business day period” – and even this artificial deadline would only work if the filing is accepted by the KPPU on the first attempt.
Translation Requirement for non-Indonesian Submissions
All required documents and information must be submitted through the new online notification system in the Indonesian language, pursuant to Article 13 of KPPU Reg 3/2023. Although the existing merger filing guidelines from the KPPU have adopted this rule since 2020 (including for foreign parties), the KPPU has been quite lenient in accepting partial translations or summaries. It is unclear whether the same will hold true for the new online notification system, which remains under maintenance as at the writing of this article, or if only full translations will now be accepted (which may add significant costs).
Obligatory Filing Fee
Indonesian merger filings previously did not require the payment of any official fee. Government Regulation No. 20 of 2023 regarding Non-Tax State Revenues Applicable to the Indonesian Competition Commission (“GR 20/2023”) contains a new requirement that a notifying party pay a filing fee to submit a notification to the KPPU. The amount of the filing fee will be calculated on the following basis: 0.004% of either the Indonesian asset value or the Indonesian turnover value of the buyer and the target on a combined, consolidated basis, whichever is lower.
GR 20/2023 will become effective 30 days after its enactment on April 5, 2023. It does not address whether the filing fee must be paid before a notification can be submitted and subsequently deemed complete, or if it can be paid after the KPPU has issued its opinion on the notification.
KPPU Reg 3/2023 became effective on March 31, 2023. Any ongoing filings, i.e., notifications submitted to the KPPU before KPPU Reg 3/2023 became effective, will be processed according to the rules of the previous regulation, pursuant to Article 48 of KPPU Reg 3/2023. Any new filings, i.e., notifications submitted after March 31, irrespective of whether the transaction closed before March 31, will be subject to the new rules under KPPU Reg 3/2023.
This new merger filing regime will significantly alter the landscape for the notifiability of offshore transactions.
Offshore transactions by large private equity or corporate groups with negligible activity in Indonesia are no longer notifiable, unless there are significant assets or turnover in Indonesia. Global assets with minimal Indonesian nexus will no longer suffice to trigger a merger filing obligation in Indonesia.
The other provisions can also be seen as an attempt by the KPPU to streamline its review process, putting pressure on notifying parties to ensure their submissions are as complete as possible by the time a registration receipt is issued.
And then, there is the new filing fee …
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