The Urgency of Anti – Trust Law Amendment ( Legal Opinion ) Rizki Bahrudin Historically, the development of Antitrust Law in the whole world showed that the existences of Antitrust Law are very ancient. In the United States for example, where the Antitrust Act has been aged more than 100 years known as the Sherman Act. Furthermore, in Canada, such Act is already known since 1889, older than Japan where about 40 years old and in Germany about 60 years old but completed with their ombudsman agencies named Bundes Kartel Amm. In Europe itself, it has been long known agreement among European countries to resolve the matter, or antitrust cases that occurred at the cross-border carried out in various European countries. In contrary, in Indonesia, the competition law existed for many years before 1999. Even though it is only arranged in Civil Law, for instance, it says that for those gain, conduct, or expand their trade or own company or other, by unjust behavior to harm the public or someone, of which the behavior will cause damages to their competitors or competitors of another party because of unjust competition, can be imposed with an imprisonment for one year and four months maximum or to pay fine for nine hundred rupiah. So the concept of competition law did adapt. However, this law did not provide complete arrangement on business competition, since it is a real criminal. After being hit by various crises, ranging from the financial crisis, the economic crisis, and then the multi-dimensional in 1999, precisely in March of the Antitrust Law was published. For the record, the discussion of the importance of the Antitrust Law has been discussed for very long time. This further indicates that the respond to the latest legal developments which ongoing and very dynamic nowadays is very slow, special laws governing business problems. Thus, the essence of the publication of the Antitrust Law is to prevent the actions of a group of economic actors that dominate the market. Due to the dominant position, then they can use its strengths to a wide variety of interests that benefit businesses. Seven years on, the effectiveness of the Antitrust Law, start to be questioned. Some issues needed to be considered as a basis for the urgency of Antitrust Law Amendment. The Act No. 5 of 1999 is a legislation that was born from the
initiative of the government, while the competition climate continued to grow significantly, so it is time for this law to be evaluated to assist in the enforcement of competition law. First, concerns about the institutional status of the Business Competition Controlling Commission (the Commission). The institutional position of the Commission needed to be more efficient in the reinforcement of the investigation process of the cartel. Moreover, regarding fines, as it can be seen in the Antitrust Law, the maximum fine that could be imposed on businesses who are convicted of a cartel is Rp25 billion. On this matter, based on the revision draft for the act amendment, the discussions raised an issue that fines will be given based on the percentage of 30 percent of the profits of the cartel which somehow looks more threatening. Related fines, the amount of the maximum fine of IDR 25 billion per business actors that stipulated in Law No. 5 of 1999 is no longer relevant. The magnitude of up to IDR 25 billion did not provide a significant deterrent effect on business actors that cartel. However, the amount of 30 percent of turnover during the cartel fines also assessed to the potential of disrupting the business climate and counterproductive to the national economy and less attractive for investors. It needs more consideration on the exact amount of fines to be able to provide a deterrent effect, such as those applied to several countries in its antitrust law by making one up to five times the illegal profits count as a basis to impose fines or penalties, which may be more reasonable but effective. Third, the changes of merger regime. During this time all the merger should be reported to the Commission, but the facts were many of the reports submitted to the Commission after a merger or acquisition occurs. In later revisions, for companies which want to do a merger or acquisition, they are required to report to the Commission in advance. If permitted, the new merger may be performed. This method is considered much effective to prevent cartels. Furthermore, the importance of expanding the definition of business actors is also obtained many attentions. Antitrust Law revision would broaden the definition of business actors that includes business actors in the other countries whose businesses impact on Indonesia. The reason for this expanding is because many cartels are happening in neighboring countries like Singapore and Malaysia that impact on Indonesia. However, the Law No. 5 of 1999 does not grant the Commission authority to conduct investigations for that. Hence, the revision later will prevent such thing happened over and over again. The last but not least is the Leniency Program.
Leniency Program is a program that can be used as tools for business competition supervisory authorities to detect the existence of a cartel. By this revision, the Commission aimed to establish a whistleblower system like the one that had by the Indonesian Corruption Eradication Commission. The private entrepreneurs and consumers are not only dealing with the cartel of private nature but also international or cross-border cartel. This further proved that strengthening the Commission that in conjunction with secure a productive business climate has become a necessity. At this moment, the discussion of Antitrust Law Amendment needs to be resolved by involving all stakeholders in line with the implementation of the ASEAN Economic Community (AEC), the challenges of the future business competition is getting severe. In sum, some facts that have been analyzed above demonstrate the importance of Antitrust Law Amendments, which can fix some aspects, especially in the field of competition which considered to be started irrelevant.