PUBLIC SEMINAR ?Eksaminasi Putusan Komisi Pengawas Persaingan Usaha No. 08/KPPU-I/2014 tentang Dugaan Pelanggaran Pasal 5 ayat (1) and Pasal 11 Undang-Undang No. 5 Tahun 1999?

The participants of Examination of KPPU Verdict

On Mei 12, 2014, Komisi Pengawas Persaingan Usaha (KPPU) Republik Indonesia presented the Laporan Dugaan Pelanggaran (LDP) perkara Nomor 08/KPPU-I/2014 regarding to the allegation of violation of the law Undang-Undang No. 5 Tahun 1999 tentang Larangan Praktik Monopoli dan Persaingan Usaha Tidak Sehat dalam industri otomotif terkait kartel ban kendaraan bermotor roda empat. The allegation of violation of the law stated that since around 2008 and 2012, the members of Asosiasi Perusahaan Ban Indonesia (APBI), namely PT. Bridgestone Tire Indonesia, PT. Sumi Rubber Indonesia, PT. Gajah Tunggal Tbk., PT. Goodyear Indonesia Tbk., PT. Elang Perdana Tyre Industry and PT. Industri Karet Deli have been alleged to violate Pasal 5 ayat (1) terkait penetapan harga and Pasal 11 terkait kartel UU No. 5/1999 dalam kaitannya dengan produk ban mobil penumpang dengan Ring 13, Ring 14, Ring 15 dan Ring 16.(Read more)

To discuss about this issue, UPH Faculty of Law held a seminar about examination of  putusan  KPPU on September 9, 2015 at UPH Executive Education Center, 3^rd floor, Hotel Arya Duta, Semanggi. The seminar presented six sources which are the expert in business competition, civil law expert, economists and analysts of Indonesian tire industry, namely Prof. Dr. Ningrum Sirait, S.H., MLI., Honorable Lecturer of Law in Universitas Sumatra Utara (USU), Prof. Dr. Ine Minara S. Ruky, S.E., M.E., Honorable Lecturer of Economy Universitas Indonesia (UI), Dr. Pande Radja Silalahi, Senior Economist, staff Center for Strategic and International Studies (CSIS), former commissionaire  and Vice-Chairman KPPU, Dr. Anna Maria Tri Anggraini, S.H., M.H., Lecturer of Faculty of Law in Universitas Trisakti, former commissionaire of KPPU, and Franciscus Werilang  the representative of KADIN as one of the businessmen. Dr. jur. Udin Silalahi, S.H., LL.M., UPH Faculty of Law attended as moderator.

Prof. Dr. Bintan R. Saragih, Dean of FAculty of Law

Dr. jur. Udin Silalahi, S.H., LL.M., Moderator, FH Lecturer

The examination was opened by the greeting of the Dean of UPH Faculty of Law Prof. Dr. Bintan R. Saragih, S.H., who hoped that the verdict could be a good discussion material, especially for the law students and for the participants who are involved in business competition, so that KPPU could give an acceptable verdict by the citizen. Dr. Udin as the moderator gave an introduction for the examination, where there was something interesting about KPPU verdict this time. There have been some previous KPPU verdicts about fried oil cartel, pharmacy cartel, Fuel Surcharge, and others, but Supreme Court canceled the verdict. This time, the KPPU verdict about tire cartel has been accepted (confirmed) by District Court and those 6 reported companies are charged with fines 5 millions Rupiah per each (there are the decrease of fines because it was too big, where KPPU charged fines of 25 millions Rupiah per each company). ?That is why, we need to review to see the application standard or economy analysis and UU No. 5/1999 analysis of how the cartel violation actually is,? Dr. Udin shared. According to him, there was inconsistency of method or theory in analyzing a case found by reviewing the previous verdicts, so that many parties doubted the KPPU verdicts about the tire cartel.

As the first speaker, Prof. Ningrum Sirait started her discussion by explaining about the benefit of examination. She shared that examination of a verdict is a learning process to see the verdict from different point of views and not giving any impact to the verdict. ?Education institution is the proper media to give a strong perspective about a verdict of a certain subject,? she stated. Moving on to the KPPU verdict regarding to the tire cartel, Prof Ningrum shared that it takes a strong evidence to decide. ?There has to be an accurate and consistent economy calculation based on the methodology to confirm that either the cartel is done or not, it is not that easy with only a shallow assumption,? she said. She also added that the main problem of why the KPPU verdict has always been second-guessed until this time although the KPPU commissionaire has studied around the world is that KPPU does not have biro of economics. ?To do an economic calculation, it is only ?pick here and there?, hire consultants, thus, the supervisor board must have the biro of economics. They cannot just use indirect evidence partially, but understand about the circumstantial evidence wholly instead,? she stated.

Prof. Ningrum Sirait, S.H., M.Li

Dr. Anna Maria, S.H., M.H

The discussion by Prof. Ningrum was continued by Dr. Anna Maria Tri, still from law point of view, discussing about circumstantial evidence, regarding to the verification of tire cartel. The cartel is usually done in a facilitated realm, but in this case it is done in silence and not explicit, so it would be difficult to get the hard evidence. Thus, the circumstantial evidence is a suitable method in verifying this case. Dr. Anna shared that based on law experts; circumstantial evidence is the evidence that is conditioned, divided into communication and economy evidence. According to Dr. Anna, verifying from communication perspective in this tire cartel case is as following; the situation that facilitates the cartel namely trade association, the meeting and information sharing, and affected by the competitor authority role as government. The verification from economy side is that it gives impact on competition, application of rule of reason approach and the economy analysis verification method, which is the determination of market. There were some suggestions by Dr. Anna, in which to strengthen the comprehension of circumstantial evidence in stakeholders circle in competition sector, the existence of guidance for association so that there can be a clear definition of the limitations about forbidden or allowed issues by UUAM, and create leniency program as the media of whistle blower in revealing cartel.

Dr. Pande Radja

Prof. Ine S. Ruky

From economy point of view, r. Pande Radja shared about economical evidence statistically, where it plays role in proving that the reported tire company does not do cartel. This can be seen from the statistic diagram about data of CR4 5 of the tire company shown by Dr. Pande, ?the diagram does not draw a straight line that goes side by side or in line, otherwise the line is dancing and if it dances, the there is clearly no cartel,? be said. Prof Ine, economist, that to review this cartel case is not that easy, because a cartel is meaningful in economical way if it is done with competitors, also added the economy evidence. ?To judge which competitor, we must investigate the relevant market, relevant market is the area of effective competition, within the defendant operate,? Prof. Ine said.

Approximately 100 people attended the examination, which consisted of law practitioner, economist, students, and public. The event gained a positive response from participants, seen by the amount of questions asked and the open discussion that produced many useful perspectives for the issue. (fc/nn)

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