Pengambilalihan Saham Oleh Perusahaan Terafiliasi Dikaitkan dengan Praktek Monopoli dan Persaingan Usaha Tidak Sehat

Abstract

The transaction of acquisitions by companies has been increased from year to come in order to expand the company, this action however become the wariness that will affect to the competition among companies or business actors in the relevant market that will finally lead to the impact of competition its self and will caused damage to the consumer and society. The research based on the purchase of majority share ownership, PT Indosat, the country second largest telecommunication companies by Qatar Telecom, which is the affiliated company from Temasek Holding. At the end of November 2007, Commission for the Supervision of Business Competition (KPPU) has proven that Temasek Holding was violated Article 27 of Law Number 5 of 1999 concerning Prohibition of Monopolistic Practices and Unfair Business Competition. KPPU realized that acquisitions will increased the ownership and can lessening the competition. As a solely agency in competition authority, KPPU has a duty to make an assessment to the acquisition among companies or business actors that will effect to the competition in the market. This research based on questions of how is the regulation of share acquisition for the private company according to Law Number 40 of 2007 concerning Limited Companies, and then how is the regulation of share acquisition for the public company according to Law Number 8 of 1995 concerning Capital Market, and the last question is, how the share acquisition by the affiliated company that will cause monopolistic practices and unfair business competition according to Law Number 5 of 1999 concerning Prohibition of Monopolistic Practices and Unfair Business Competition. To conduct this research the method being used is a normative legal research method which has analytical descriptive using secondary data through library research. All data has been collected shall be reviewed and qualitative analysis to drawn a deductive conclusion as an answer for the questions being researched. The result of this research shows, that share acquisition in Indonesia for private company, generally regulate in Article 125, 126 Law Number 40 of 2007 concerning Limited Company. The major point is stated that share acquisition can be performed by company as legal entity either by person partly or most of the share that will cause the shift of the company control. In the Capital Market, share acquisition regulate in the Law Number 8 of 1995 along with their secondary rule promulgated by the Stock Exchange and Financial Board (Bappepam-LK). Bappepam-LK regulation concerning acquisition by public company and tender offer should be taken into account. And the last, acquisition by affiliated company that will cause monopoly practices and unfair business competition is the acquisition that will generate the increase of market power or market concentration and dominant position so that can lead to monopolistic practices and unfair business competition. To determine whether the acquisition by affiliated company can harm the competition or not can be seen by 2 (two) aspects: Firstly, whether the company conducted acquisition is the controlled share holder, and secondly, how is the relationship between parent and subsidiary company. However, KPPU must take a fully comprehensive assessment for this corporate action such as share acquisition before making opinion whether share acquisition violate Law Number 5 of 1999 or not.