Jakarta –
The shocking news came from the state-owned company alias BUMN. The Business Competition Supervisory Commission (KPPU) has just revealed various concurrent positions between directors / commissioners and non-BUMN companies, in which there are BUMN bosses who hold concurrent positions for up to 22 companies.
KPPU commissioner Ukay Karyadi explained that the concurrent positions were in several sectors, namely finance, insurance, investment of 31 directors / commissioners, mining 12 directors / commissioners, and construction 19 directors / commissioners. According to him, there are multiple positions for one personnel in a certain sector, namely mining which can reach 22 companies.
“Even dual positions for one personnel in a certain sector (namely mining) can reach 22 (twenty two) companies. This research is still ongoing and there is a possibility that the KPPU will deepen the law enforcement process, if it is found that there are indications of unfair business competition as a result. due to the dual position, “he said in a written statement, Tuesday (23/3/2021).
KPPU is paying close attention to Ministry regulations BUMN which allows concurrent positions between the board of commissioners or the supervisory board of BUMN and the board of commissioners of companies other than BUMN. This is regulated in the Regulation of the Minister of BUMN Number PER-10 / MBU / 10/2020 concerning Amendments to the Regulation of the Minister of BUMN Number PER-02 / MBU / 02/2015 concerning Requirements and Procedures for the Appointment and Dismissal of Members of the Board of Commissioners and the Supervisory Board of BUMN (PermenBUMN) ), especially in Chapter V letter A (Multiple Positions) in the attachment to the SOE Ministerial Regulation Number PER-10 MBU / 10/2020. The regulation was signed on 9 October 2020 and takes effect on the date of promulgation, namely 16 October 2020.
Meanwhile, the substance of concurrent positions between directors / commissioners is regulated in Article 26 of Law No. 5/1999 concerning the Prohibition of Monopolistic Practices and Unfair Business Competition (Law 5/1999). This law prohibits a person from holding the position of director or commissioner of a company who is concurrently also a director or commissioner of another company if those companies are in the same relevant market, or have a close relationship in the field or type of business, or jointly control. certain market shares that may result in monopolistic practices and or unfair business competition.
This concurrent position can potentially violate fair business competition in the market in the form of:
a. Ease for companies to be involved in market regulation related to prices, supply, division of territories, production quantities, and others. The horizontal agreement coordination will be easier to achieve and maintain if there are multiple positions of directors / commissioners between companies in the same market.
b. Abuse of vertical barriers by engaging in exclusivity, tying and bundling practices as well as other corporate actions involving companies where the board of directors / commissioners have concurrent positions.
c. The act of controlling the market between companies whose business activities are interrelated, in which the directors / commissioners of the company are involved in concurrent positions.
“In order to prevent the potential for unfair business competition as early as possible, the KPPU has coordinated and submitted a letter of advice and consideration to the Ministry of BUMN, which in essence suggested that the Ministry BUMN revoke the provision that allows concurrent positions on the board of commissioners and the supervisory board with the board of commissioners for companies other than BUMN, “said Ukay.
“KPPU also recommends that the Ministry of BUMN ensure that personnel who become directors / commissioners within the scope of BUMN are not in concurrent positions with companies other than BUMN, so as to reduce the potential for violations of Article 26 and other articles related to Law No. 5 of 1999 concerning the Prohibition of Monopolistic Practices and Unfair Business Competition, “he continued.
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