Prosecuting Cartels without Direct Evidence of Agreement

Abstract

Circumstantial evidence is employed in cartel cases in all countries. The better practice is to use circumstantial evidence holistically, giving it cumulative effect, rather than on an item-by-item basis. Complicating the use of circumstantial evidence are provisions in national competition laws that variously define the nature of agreements that are subject to the law. There are two general types of circumstantial evidence: communication evidence and economic evidence. Of the two, communication evidence is considered to be the more important. Economic evidence is almost always ambiguous. It could be consistent with either agreement or independent action. Therefore it requires careful analysis. National treatment of cartels, such as whether they are prosecuted as crimes or as administrative violations, can affect the burden of proof that applies to the cases, and hence the use of circumstantial evidence. It can be difficult to convince courts to accept circumstantial evidence in cartel cases, especially where the potential liability for having violated the anti-cartel provisions of the competition law is high. There are circumstances in countries that are relatively new to anti-cartel enforcement that could affect the extent to which they rely on circumstantial evidence in their cases.

Indirect Evidence in Disclosing Cartel Violations Under Business Competition Law in Indonesia

“…The consideration of the panel of judges in the decision is that in practice in the business world, agreements regarding price, production, territory (cartel), and other anti-fair competition agreements are often carried out in an opaque manner (tacit) so that in business competition law the evidence is indirect (indirect/circumstantial evidence), is accepted as valid evidence as long as the evidence is sufficient and logical. There is no other stronger evidence that can undermine the indirect evidence (Nugroho, 2014).…”

“…In addition, the Elucidation of Law Number 5 of 1999 also does not explain what is meant by evidence of guidance. Despite this, because the evidence used by KPPU is similar to the evidence listed in the Criminal Procedure Code (Nugroho, 2014). The meaning of clue evidence based on Article 188 paragraph (1) of the Criminal Procedure Code is an act, event, or situation which, because of their agreement, both between one and another, as well as with the crime itself, indicates that a crime has occurred and who the perpetrator is.…”

Urgensi Revisi Undang-undang Anti Monopoli Indonesia Studi Perbandingan Fair Trade Commission Jepang

“…Merger merupakan tindakan perusahaan untuk mensinergikan sumber daya yang ada dan dapat meningkatkan efisiensi membuat produk baru yang bisa digunakan untuk warga. Hal terssebut bertujuan perusahaan yang bersangkutan agar dapat mencapai profit maksimal (Nur, 2021). Dampak negatif yang kemungkinan besar akan timbul adanya merger ini adalah terciptanya penguasaan pasar pada pasar tertentu yang diakibatkan adanya merger ini.…”