1) Is a merger control regulation in force?

Yes. The Indonesian merger regulations (collectively, the ”Indonesian Merger Control Regulations”), which govern mergers, consolidations, acquisitions of shares, and acquisition of assets, consist of:

• Law No. 5 of 1999 on Prohibition of Monopolistic Practices and Unfair Business Competition ( “Indonesian Competition Law”);
• Government Regulation No. 57 of 2010 on Merger or Consolidation of Business Entities and Acquisition of Shares of Companies that may result in Monopolistic Practices and Unfair Business Competition (“GR No. 57/2010”); 
• KPPU Regulation No. 04/2012 on Guidelines for the Imposition of Fines for Failure to Notify Mergers, Consolidations, and Acquisitions of Shares (“KPPU Regulation 04/2012”); and
• Indonesia Competition Commission (Komisi Pengawas Persaingan Usaha) (“KPPU”) Regulation No. 3 of 2019 on Assessment of Merger or Consolidation or Share Acquisition of Business Entities that May Result in Monopolistic Practices and Unfair Business Competition (“KPPU Regulation No. 3/2019”).

The Indonesian Merger Control Regulations provide that a merger, consolidation of business entities, share acquisition or asset acquisition (collectively, ”Merger”) that meets certain criteria must be notified to the KPPU.

2) Which authorities enforce the merger control regulation?

KPPU is the independent agency established for the enforcement of the Indonesian Competition Law.

3) Relevant regulations and guidelines with links:

Referring to topic 1 above, a Merger is governed under the Indonesian Merger Control Regulations consisting of:

4) Does general competition regulation apply to mergers or ancillary restrictions?

The Indonesian Merger Control Regulations apply to Mergers carried out by way of either share or asset transaction, but it is silent on whether any possible ancillary restrictions resulting from a transaction will be assessed as part of the merger control process. 

Unlike in some other jurisdictions, the Merger Control Regulations are silent on whether the transacting parties must declare any ancillary restrictions agreed as part of the transaction. We also found no precedent in the merger control process where the KPPU has assessed and provided clearance to any ancillary restrictions. 

5) May an authority order a split-up of a business irrespective of a merger?

Yes, the KPPU has the authority to split-up a business as a part of a merger control proceeding as well as in other competition law matters. To date, there has been no precedent yet on this from the merger control perspective. However, for comparison purpose, the KPPU in 2007 ordered a divestment of shares in a cross-ownership case (non-merger case, i.e. Article 27 of the Indonesian Competition Law). 

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Companies engaging in certain sectors may need to obtain approval from the respective authorities for any change of shareholding composition. For instance, any change of shareholding composition of a company in the financing sector must obtain the prior approval of the Financial Services Authority (Otoritas Jasa Keuangan or OJK). Similarly, a company in the energy and mineral resources sector must obtain prior approval from the Ministry of Energy and Mineral Resources for any change of shareholding composition.

7) Are any parts of the territory exempted or covered by particular regulation?

No. The Indonesian Merger Control Regulations apply to all territories in Indonesia.

8) Is merger filing mandatory or voluntary?

The Indonesian Merger Control Regulations adopt a two-stage notification system:

1. voluntary pre-merger notification ("Consultation"); and
2. mandatory post-closing notification ("Notification"). 

Please note that even if a transaction has been notified through a Consultation, the parties to the transaction must still submit a Notification to the KPPU in order to comply with its statutory obligation.

9) Is there a general definition of transactions subject to merger control?

The Indonesian Merger Control Regulations apply to all types of mergers as long as the following notification criteria are all satisfied: 

1. the specified threshold is met;
2. the Merger is between or among non-affiliates; and 
3. the Merger results in a change of control in either (i) the acquired company for a share transaction, or (ii) the acquired asset for an asset transaction.

The statutory threshold can be fulfilled by either any or all of the parties to the transaction. It is worth noting that the KPPU has the authority to review a Merger between foreign companies. For further elaboration on foreign Merger, please see topic 21.

10) Is "change of control" of a business required?

Yes (see topic 9).

11) How is “control” defined?

The Indonesian Merger Control Regulations assume that control exists when there is an (i) ownership of more than 50% of shares or voting rights of a particular company or (ii) if the ownership is 50% or less, the holder has the ability to influence and determine the management and policy of the company. While there are no criteria on what constitutes “the ability to influence and determine the management and policy”, it will be determined on a case-by-case basis by the KPPU.

12) Acquisition of a minority interest

The Indonesian Merger Control Regulations do not stipulate the level of shareholding from a Merger that would trigger a notification obligation. It emphasizes that a Merger that results in a change of control will trigger a notification obligation. This could be the case if an acquisition results in a change of control because of veto rights or other de facto decisive influence - even though the acquirer acquired less than 50% of the shares.

13) Joint ventures/joint control – which transactions constitute mergers?

Joint venture transactions that may have to be notified are those resulting from a transfer of shares or an acquisition of control. Establishment of a greenfield company, including a greenfield joint venture, will not in any way trigger a notification obligation in Indonesia under the current regime. 

For instance, a joint venture created by way of a transfer of shares to another party may trigger the Notification requirement in Indonesia. In addition, if two parties established a greenfield joint venture and then purchase assets of another company through an established joint venture, the latter will trigger the Notification requirement under the current regime. 

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

A Merger would trigger a notification to KPPU if the total Indonesian turnover of the merged entity exceeds IDR 5 trillion. This applies for both share and asset transactions. For details of the calculation please see topic 21.

b) Market share thresholds

N/A

c) Value of transaction thresholds

Please see asset requirements below.

d) Assets requirements

A Merger, either a share or an asset transaction, would trigger a notification to the KPPU if the worldwide asset value of the merged entity exceeds IDR 2.5 trillion, provided that there is a local nexus. Please see the definition of local nexus test in topic 21. 

It is worth noting that the merged entity for calculating the asset threshold in a share transaction that results in sole control over the Target by the acquirer refers to the following parties:

1. The Purchaser/surviving company;
2. The Companies that are either directly or indirectly controlling the Purchaser/surviving company (Purchaser/surviving’s parent company, grandparent company, and so on until the ultimate parent company) or controlled by the Purchaser/surviving company (Purchaser/surviving company’s subsidiary, Purchaser/surviving company’s sub-subsidiary, and so on until the ultimate subsidiaries);
3. Companies that are directly or indirectly controlled by the same ultimate parent company of the Purchaser/surviving company (Purchaser/surviving company’s sister companies);
4. The Target company;
5. Companies that are either directly or indirectly controlled by the Target/non-surviving Company (Target/non-surviving Company’s subsidiary, Target/non-surviving Company’s sub-subsidiary, and so on until the ultimate subsidiaries).

On the other hand, there is no clarity under KPPU Regulation 3/2019 on how to calculate the asset threshold for an asset acquisition. However, based on a discussion with the KPPU, the statutory threshold for an asset transaction will include the asset’s value of the acquirer’s group and the acquired assets as recorded in the seller’s financial statement. If, however, the acquired asset value is not recorded in the seller’s financial statement, the KPPU will look at the value of the transaction.

Please note that, however, the above view is still subject to the implementing guidelines that has yet to be issued by the KPPU.

e) Other

N/A

15) Special thresholds for particular businesses

Particularly for bank-to-bank Mergers, a Notification to KPPU is triggered if the worldwide asset value of the merged entity exceeds IDR 20 trillion.

16) Rules on calculation and geographical allocation of turnover

The turnover threshold will be calculated on a nationwide basis. The KPPU will consider the sales value of all products sold by the relevant parties in Indonesia. 

In case of a share transaction that results in sole control, the relevant parties must include the turnover details on: 

1. the purchaser; 
2. the purchaser's parent company, grandparent company and up to its ultimate parent company;
3. the purchaser's subsidiary, sub-subsidiary and up to its ultimate subsidiary; 
4. the purchaser's sister company; 
5. the target company; and 
6. the target's subsidiary, sub-subsidiary and up to its ultimate subsidiary. 

If a share transaction results in a joint control, the relevant parties must include the turnover and asset details on all the companies mentioned above for sole control as well as: a) the target's parent company, grandparent company and up to its ultimate parent company; and b) the target's sister company, before the completion of Merger transaction.

For asset acquisition, based on discussions with the KPPU, the statutory turnover threshold will only look at the purchaser’s group turnover as elaborated in points 1) – 4) above.

Please note, however, that the above view is still subject to the implementing guidelines that has yet to be issued by the KPPU.

17) Special rules on calculation of turnover for particular businesses

N/A

18) Series of transactions that must be treated as one transaction

The Indonesian Merger Control Regulations are silent on this point. However, the KPPU has been consistent in requesting separate submissions for several transactions. Nonetheless, KPPU assessed such several notifications by producing only one stipulation.

19) Temporary change of control

The Indonesian Merger Control Regulations are silent on this matter. A careful case-by-case assessment is advised. 

20) Special industries, owners or types of transactions

No, there are no industry-specific notification regimes for merger control. The Indonesian Merger Control Regulations apply to all sectors. That being said, in addition to merger control, certain sectors also require notification of a merger to their sector-specific regulators, e.g., telecom, media, banking, insurances, oil and gas, mining sectors, etc. (see topic 6).

21) Transactions involving only foreign businesses (foreign-to-foreign)

The local nexus test of a foreign transaction is whether all or one of the parties to the transaction has any business activities in or sales to Indonesia, regardless of the significance of the sales or asset values. 

Please see further exemption in topic 23. 

22) No overlap of activities of the parties

A notifiable Merger must be notified to the KPPU irrespective of whether the Merger involves an overlap/vertically integrated products.

23) Other exemptions from notification duty even if thresholds ARE met?

There is no particular exemption for merger control, except for the exemptions under Article 50 of the Indonesian Competition Law, as follows:

1. actions and/or agreements that are intended to implement applicable laws and regulations;
2. agreements related to IP rights, such as licences, patents, trademarks, industrial product designs, integrated electronic circuits, trade secrets and franchise agreements;
3. agreements that stipulate technical standards of goods or services that do not inhibit or impede competition;
4. agency agreements that do not stipulate any resale price maintenance;
5. cooperation agreements for research to improve the living standards of society at large;
6. international agreements that have been ratified by the Indonesian government;
7. agreements relating to exports of goods or services that do not disrupt domestic needs or supply;
8. agreements made by and between small business undertakings; and
9. agreements made by and between cooperatives aimed specifically at serving their members.

24) May a merging party file voluntarily even if the thresholds are not exceeded?

Strictly said, the KPPU will only assess a Merger that meets all criteria. However, according to Article 28 of the Indonesian Competition Law in conjunction with Article 2 of GR 57/2010, the KPPU reserves the right to assess any Merger as it deems necessary even if not all of the criteria are fulfilled, e.g. if the transaction might potentially raise any anti-competitive concerns. 

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

The KPPU cannot request a merging party to submit a notification if the statutory thresholds are not met. However, the KPPU may oppose the transaction by initiating an investigation if it finds that the transaction may violate the Indonesian Competition Law under the abuse of dominance clauses. To date, the KPPU has not used its power to do so. 

26) Referral within the jurisdiction

N/A

27) Referral from another jurisdiction

The KPPU has entered into bilateral cooperation arrangements with several competition authorities from various jurisdictions. Not all of the cooperation arrangements are made public, and each arrangement might cover different issues. For example, the KPPU has entered into a Memorandum of Understanding with the Competition and Consumer Commission of Singapore (“MoU”). Although there is no merger control related referral issue covered in the MoU, the MoU opens the possibility for the two authorities to: 1) exchange information and 2) notify each other if an enforcement may affect important interest of the other authority. However, the implementation is conducted internally within KPPU and the relevant competition authority.

28) Referral to another jurisdiction

Please see topic 27.

29) May the merging parties request or oppose a referral decision?

Please see topic 27.

30) Stage of transaction when notification must be filed

As merger filing in Indonesia takes place post-closing, the notification must be filed within 30 business days as of the effective closing date of the transaction (see topic 43).

31) Pre-notification consultations

If a merger is expected to be problematic, KPPU encourages the merging parties to file a Consultation.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

Special rules related to the effective date apply if the target company is a public company (see topic 43).

33) Forms available for completing a notification

The KPPU provides a notification form as well as its guidance for filling out the forms and submission procedure in the appendix of the KPPU Regulation No. 3/2019. The same form can also be used for Consultation to the KPPU. You may download the notification form from this link. Note that only Indonesian version is available to date.  

34) Languages that may be applied in notifications and communication

Indonesian.

35) Documents that must be supplied with notification

The following documents must be supplied with the notification: 

1. the notification form (In the current regulation, there are two stages of submitting the notification form to the KPPU. In the preliminary stage, the form to be submitted includes information on turnover and asset value of the relevant parties in the last three years, transaction summary, and products sold by the relevant parties in Indonesia. If the KPPU requires further information, then the KPPU will request the parties to submit additional information, which includes information relating to the competitors, consumers and suppliers of the products sold by the relevant parties in Indonesia);
2. a power of attorney;
3. the articles of association of the relevant parties;
4. the company profile of the relevant parties;
5. the financial statements of the relevant parties for the last three years;
6. the scheme of ownership of the relevant parties before and after the transaction;
7. a document showing that the transaction has become legally effective;
8. a summary of the transaction; 
9. a business plan for the next three to five years, containing at least the policy plan of the merged entity for the next three to five years; and
10. a transaction impact analysis that at least contains information regarding: i) industry analysis, ii) relevant market definition, iii) market structure pre- and post-transaction, iv) the benefit of the transaction for the parties, and v) analysis of any competition effect that might arise from the transaction. 

(See topics 14 and 16 for the definition of relevant parties).

36) Filing fees

There is no filing fee under the current Indonesian Merger Control Regulations.

37) Is implementation of the merger before approval prohibited?

Under the current Indonesian Merger Control Regulations regime, the notification to KPPU is only mandatory post-closing. No approval from KPPU is needed prior to the implementation of the merger. 

The Indonesian Competition Law is silent on gun jumping and carve out issues. However, the Indonesian Competition Law prohibits any communication or collusion conduct between competitors. Investigation on such issues, which may involve communication or collusion conduct between competitors, are regulated through different mechanism beyond the Indonesian Merger Control Regulations. 

38) May the parties get permission to implement before approval?

N/A

39) Due diligence and other preparatory steps

N/A

40) Veto rights before closing and "Ordinary course of business" clauses

N/A

41) Implementation outside the jurisdiction before approval – "Carve out"

N/A

42) Consequences of implementing without approval/permission

As the Indonesian Merger Control Regulations is a mandatory post-notification regime, there is no requirement to obtain an approval from KPPU before a transaction is closed.

43) Phases and deadlines

44) Tests or criteria applied when a merger is assessed

KPPU relies on 5 criteria, namely:

1. market concentration;
2. barriers to entry;
3. potential anti-competitive effects;
4. efficiencies; and/or
5. failing firms defense/bankruptcy.

However, based on the KPPU Regulation No. 3/2019, the KPPU may conduct additional analysis as follows:

1. improvement of domestic competitive advantage and national industry;
2. technology and innovation development;
3. protection of small and medium enterprises;
4. impact to the labor; and/or; and
5. implementation of the relevant laws and/or regulations.

45) May any non-competition issues be considered?

Besides strictly competition-related issues, the KPPU may also consider the impact to the five additional analysis issues stated in topic 44.

46) Special tests or criteria applicable for joint ventures

Notifiable joint venture transactions are assessed in the same manner as other Mergers. Please see topics 14 and 16.

47) Decisions and remedies/commitments available

Note that unlike in other jurisdictions, the outcome for KPPU’s assessment on merger control is the KPPU Opinion (for any notification made under the previous KPPU regulation on merger control) or KPPU Stipulation (for any notification made using the KPPU Regulation 3/2019). Based on its assessment, the KPPU may prohibit a transaction and order a split-up of the merged businesses. 

Furthermore, there are 2 types of remedies available to be proposed to KPPU, as follows:

Structural, which includes:

1. divestment of assets; 
2. divestment of shares; and
3. other remedies that would result in competitive effect.

Behavioral, which includes:

1. Intellectual Property Rights remedies, in the form of licensing;
2. creating a competitive effect by eliminating barrier(s), such as exclusive contract, consumer switching cost, bundle, and supply barriers;
3. price and amount of output/production proposal;
4. other remedies that would result in competitive effect.

To date, there is no precedent on structural remedies.

48) How and when will details about the merger be published?

The KPPU Opinion (for any notification made under the previous KPPU regulation on merger control) or KPPU Stipulation (for any notification made using the KPPU Regulation 3/2019) can be accessed through its website (http://www.kppu.go.id/id/). However, there is no fixed timeline on when such details will be published by KPPU.

49) Access to the file for the merging parties and third parties

The merging parties:

The merging parties have full access to the KPPU Stipulation. This includes the rights to propose a redaction in the KPPU Stipulation of matters that they consider sensitive and therefore may not be disclosed to any third parties. Subsequently, KPPU will only publish the approved redacted version on its website.

Third parties:

Third parties only have access to the redacted version of the KPPU Stipulation through KPPU’s website.

50) Who can appeal and what may be appealed?

No appeal can be made by the merging parties or KPPU in the context of a Notification. If KPPU concludes that a transaction may lead to a substantial lessening of competition and the parties do not comply with the Conditional Approval determined by the KPPU, the KPPU can initiate a formal investigation and examination. The parties may then challenge the KPPU’s decision on such formal case investigation and examination according to the general competition case handling procedure.