RAP & Co acted as legal counsel to PT Angkasa Pura Logistik (APLog) in a Supreme Court judicial review (Peninjauan Kembali, or PK) concerning an alleged violation of Article 17 of Law No. 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition. In Decision No. 116 PK/Pdt.Sus-KPPU/2019, the Supreme Court granted APLog’s petition and held that APLog was not proven to have violated the provision.
The dispute concerned APLog’s activities in aircraft cargo and mail services (PJKP2U) and cargo and mail security screening services (PJPK2P) at Sultan Hasanuddin International Airport in Makassar, and whether those activities, including the tariffs charged, amounted to a monopolistic practice. The Central Jakarta District Court had set aside the decision of the Business Competition Supervisory Commission (KPPU), but in cassation the Supreme Court annulled that ruling and upheld the KPPU decision in Decision No. 208 K/Pdt.Sus-KPPU/2018, dated 28 March 2018. APLog then sought judicial review of that cassation decision.
RAP & Co represented APLog in the judicial review proceedings. As recorded in the decision, APLog’s counsel were Rendy Anggara Putra, S.H., C.L.A. and colleagues, Advocates and Legal Consultants at RAP & Co. Through its counsel, APLog asked the Supreme Court to review a decision that had already become final, relying on two grounds: newly discovered decisive evidence, and a judicial error or manifest mistake in the cassation decision.
The Supreme Court’s reasoning turned on what must be shown, beyond market control, to establish a monopolistic practice under Article 17. It held that the cassation judges had erred in assessing the elements of that provision. In addition to controlling the relevant market, a business actor must be able to set its own tariffs independently (a “price maker”), and those tariffs must be unreasonable or far above marginal cost. Here, the PJKP2U tariff was set by PT Angkasa Pura I, the holder of the exclusive airport business rights, while APLog set the PJPK2P tariff by reference to Ministry of Transportation Regulation No. 153 of 2015 and after consulting users through their representatives. Although APLog held market control in the relevant activities, the Court found that it was not proven to be a price maker, and therefore did not need to consider whether the tariffs were reasonable.
The decision turns on its own facts, but it illustrates the weight the Court placed on the distinction between controlling a market and having the power to set prices independently.
The Supreme Court granted APLog’s petition and annulled Decision No. 208 K/Pdt.Sus-KPPU/2018. Adjudicating the case anew, it annulled KPPU Decision No. 08/KPPU-L/2016, granted APLog’s objection to that decision in full, and held that APLog was not proven to have violated Article 17 paragraphs (1) and (2) of Law No. 5 of 1999. Having accepted the judicial-error ground, the Court did not consider the ground based on newly discovered evidence.
The engagement reflects RAP & Co’s experience in representing clients in competition law and commercial disputes before the Supreme Court, where the outcome can turn on a close reading of statutory elements and the regulatory setting of a client’s business. RAP & Co congratulates PT Angkasa Pura Logistik on the outcome.