Challenges in Combating Cartels, 14 Years after the Enactment of Indonesian Competition Law

Fourteen years after the enactment of Indonesian Competition Law, the public has had the chance to witness the enforcement practice of the Commission for the Supervision of Business Activities (the Kppu), the competition supervisory authority of Indonesia. Being recognized as an aggressive competition agency, the enforcement of Indonesian Competition Law seems to largely rely on the discretion of the Kppu. However, a review needs to take place not only of how the competition authority accomplishes its tasks, but also how the enforcement process is outlined in the provisions of the Law itself. Around 72% of the cases dealt with by the Kppu concern bid-rigging, 14% cover other types of cartel practices, further types of anticompetitive conduct account for the rest. Despite being criticized as having excessive authority covering the function to investigate, prosecute, and make rulings, the Kppu faces problems in battling cartel practices because major legal flaws exist, for instance concerning collecting evidences. The discussion will be limited to the combat with cartels. Competition law enforcement through the Kppu is administrative in nature albeit with some criminal law influences (evidence). Although it is possible to enforce the law by means of criminal injunctions and private claims, they have rarely been used so far, mainly because Indonesian Competition Law lacks clarity. Problems with existing procedures are rooted in the Kppu's inability to obtain sufficient evidences. Two propositions are made how to deal with these difficulties – using indirect evidence and implementing a leniency programme, both based on existing Indonesian Competition Law or by amending the Law and inserting new provisions which would explicitly allow the use of both indirect evidence and a leniency programme