New Regulation on Post-Closing Notifications Requirements on Mergers, Consolidations, and Acquisitions
Business Competition Supervisory Commission (Komisi Pengawas Persaingan Usaha or “KPPU”) recently issued KPPU Regulation No. 3 of 2023 dated March 30, 2023 on Assessments of Mergers or Consolidations of Business Entities, or Acquisitions of Company’s Shares and/or Assets which may Result in Monopolistic Practices and/or Unfair Business Competition (the “New Regulation”).
The New Regulation revokes KPPU Regulation 3 of 2019 which governed the same subject (“Regulation 3/2019”).
The New Regulation sets out certain new procedural and administrative aspects of the notification requirements on mergers, consolidations, and acquisitions to KPPU. The New Regulation intends to improve and update the previous notification requirements under Regulation 3/2019. The New Regulation became effective as of March 31, 2023.
With regard to the New Regulation, the government also issued Government Regulation No. 20 of 2023 dated April 5, 2023 on Types and Tariffs of Non-Tax State Revenues Applicable to the Business Competition Supervisory Commission (“GR 20/2023”) which introduces a filing fee for merger notification. GR 20/2023 became effective as of May 5, 2023.
We highlight below the key provisions of the New Regulation and GR 20/2023:
♦ Threshold on Asset Localization
Previously in Regulation 3/2019, the threshold of the transaction which required a notification to KPPU on mergers, consolidations, and acquisitions is a combined value of assets exceeds Rp2.5 trillion or a combined value of sales exceeds Rp5 trillion calculated based on global assets, which includes assets outside the territory of Indonesia.
The New Regulation narrows down the calculation of assets with the same threshold. Under the New Regulation, the calculation of the assets only applies to the Indonesian assets, or assets which are located within the Indonesian territory.
♦ Only Indonesia-Related Transactions to be Notified
Previously, Regulation 3/2019 stipulated that mergers, consolidations, acquisitions which met the relevant thresholds had to be notified to KPPU, if one of the parties in the transaction carried out business activities or sales in Indonesia.
Now, under the New Regulation a transaction must be notified to KPPU if the transaction is conducted between parties that have assets and/or sales in Indonesia, both directly and indirectly.
♦ New Electronic Portal for Notification Filings
Under the New Regulation, KPPU introduces a new notification system to submit the notifications to KPPU online at http://notifikasi.kppu.go.id. The New Regulation stipulates that all notifications may now only be submitted through the online notification system. Previously, under Regulation 3/2019 notifications were submitted through the manual methods (in person, via letters, or electronic mails).
For this new notification system, a party needs one account (i.e., one email address) to submit only one notification. Notifications may only be submitted on business days from 09.00 to 14.00 (Western Indonesia Time or Waktu Indonesia Barat).
Importantly, all information and documents shall be submitted in Bahasa Indonesia and the portal is only available in Bahasa Indonesia.
♦ Removal of Clarification and Evaluation Processes
The New Regulation stipulates the notification’s review which consists of 2 (two) phases, namely review on completeness of documents and assessment process. However, the clarification and evaluation process previously existed under Regulation 3/2019 is removed, and replaced with a review on the completeness of the documents submitted by an applicant. Further, the New Regulation adds a step covering determination on whether the transaction meets the relevant threshold. This approach appears to significantly shorten the period for the first phase of the assessment process.
Regarding the time frame of notification process, Regulation 3/2019 previously stipulated that upon receiving the notification, KPPU would carry out the clarification and evaluation for up to 60 (sixty) business days. As this process is eliminated, the process is now shortened only through a review the completeness of the notification which shall be no later than 3 (three) business days upon its submission. If the notification documents are deemed complete, KPPU will issue a notification registration number and statement on whether a notification is required. If a notification is required, KPPU will continue to the assessment phase.
♦ Several Changes in Assessment Process
Similar to Regulation 3/2019, the New Regulation stipulates that the assessment process shall take no longer than 90 (ninety) business days, which include (i) initial and (ii) comprehensive assessment. In the previous Regulation 3/2019, a comprehensive assessment will be conducted if the transaction affects the business competition in the relevant industry and/or market.
Nevertheless, the New Regulation stipulates that a comprehensive assessment will be conducted only if the notified transaction leads to a significant change in market concentration. The New Regulation does not specify any definition on “significant change in market concentration.”
Further, based on Regulation 3/2019, KPPU shall conduct the assessment by using the following analyses: (i) market concentration, (ii) market entry barriers, (iii) potential anti-competitive behaviors, (iv) efficiency, and/or (v) bankruptcy. In addition to the foregoing, the New Regulation takes into account several analyses, namely: (i) policies to increase competitiveness and strengthening national industries, (ii) technological development and innovation, (iii) protection of micro, small and medium enterprises, (iv) impacts on manpower, and (v) implementation of laws and regulations.
♦ Transitional Provisions
Any ongoing fillings, including consultations, and notifications that have been received by KPPU, or ongoing assessments that have been determined by KPPU prior to the enactment date of the New Regulation (i.e., prior to March 31, 2023) shall be processed in accordance with Regulation 3/2019.
♦ Notification Filing Fees
Through GR 20/2023, the notification filing fee is calculated using the following calculation:
0.004% x the value of assets or sales turnover that passes the threshold, whichever is the lower
Pursuant to GR 20/2023, the notification filing fee is a non-tax state revenue. The value of assets or sales calculated is combined of the following: (i) the surviving entity, or the consolidating entity, or the acquiring entity and the acquired entity; and (ii) the entities that are directly or indirectly controlled by the surviving entity resulting from the merger, the consolidating entity, or the acquiring entity and the acquired entity.
Under GR 20/2023 the notification filing fee is subject to a maximum amount of Rp150 million or approximately USD10,000. GR 20/2023 allows a reduction or full waiver of the notification filing fee if the transaction fulfills the following conditions: (i) it supports the development of micro, small, and medium enterprises; (ii) force majeure; or (iii) based on a government’s policy. Further provisions on this matter shall be regulated under a KPPU regulation and subject to the approval from the Ministry of Finance.
May 8, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Clara Anastasia (canastasia@aksetlaw.com), and M. Fatih Satria Kasmaliputra (mkasmaliputra@aksetlaw.com) for further information.
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