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Vol. 3 No. 1, March 2022, Pages 48-59
P-ISSN: 2746-0967, E-ISSN: 2721-656X
48
The Unicorn Is a Myth No More: A Ratio Decidendi Analysis on First
Official Predatory Pricing Case in Indonesia
Zaid
Master of Law, Universitas Muhammadiyah Yogyakarta, Indonesia
Corresponding E-mail: zaidrusdianto@gmail.com
INFO ARTIKEL
ABSTRAK
Article History:
Submitted: 10-11-2021
Reviewed: 26-11-2021
Revisedi: 24-11-2021
Accepted: 04-03-2022
DOI:
10.18196/jphk.v3i1.13099
Predatory pricing has long been termed like a dragon or a unicorn
because the practice is often considered irrational and therefore
impossible to find or at least unlikely to work. However, the case that
befell PT Conch South Kalimantan Cement broke the stigma in
Indonesia, which was legally proven to practice predatory pricing
through the Business Competition Commission Council (KPPU) Case
Decision Number: 03/KPPU-L/2020. Considering that predatory
pricing is complicated to prove because it requires certain elements to
be fulfilled, this research then aims to analyze the predatory pricing
elements, which became strong reasons that underlay the KPPU
Council's determination of PT Conch South Kalimantan Cement as a
predatory business actor so that it is entitled to be punished with
billions of rupiah. By applying the normative method with a statutory,
conceptual, and case approach through primary and secondary legal
materials, which were analyzed by qualitative and prescriptive
analysis, this study ultimately found the results that the elements in
the form of business actors, supply, goods, selling at a loss or fixing a
very low price, eliminating or shutting down the business of its
competitors, the relevant market, and causing monopolistic practices
and/or unfair business competition have become the ratio decidendi of
the KPPU Council in determining the practice of predatory pricing.
These reasons can then be used as decisions on similar issues in the
future.
Keywords: predatory pricing; ratio decidendi; unicorn.
1. Introduction
The competition law is one of many highly controversial laws. Even the World
Trade Organization (WTO) has considered the law governing competition (and its
application) reasonably controversial (Hufbauer & Kim, 2009). One of the reasons is the
articles contained in it. Based on observations from various study literature, related
articles were found such as mergers and acquisitions (Régibeau & Rockett, 2019), price-
fixing (Kaplow, 2013), margin squeeze (Colangelo, 2013), and predatory pricing (Zaid,
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Dawaki, & Ololade, 2021). However, among the various antitrust violations, predatory
pricing is one of the most serious and debated (Giocoli, 2011).
Predatory pricing has been described as a form of abuse of dominant position in
competition law in various countries (Petzold, 2015), which has long been highly
controversial and has become one of the oldest and most classic prominent business
conspiracy theories and continues to this day (Lindberg, 2003). The controversial side of
predatory pricing can be referred to from the difficulty of distinguishing an aggressively
low price (predator) from a low defensive price (Hawkins, 2016). Thus, a distinction
must be made between low prices due to good and competitive competition and low
prices due to consequentially poor predation (Elzinga & Mills, 2014). On the one hand,
this practice can also be anti-competitive, while on the other hand, this practice is the
essence of competition (Mncube, 2013).
Indeed, so controversial, this rule has divided the three views into three schools of
thought, namely Harvard school, Chicago, and post-Chicago school. For the Chicago
school, the law regarding the prohibition of predatory pricing is not accepted because
they consider that predatory pricing itself is an irrational practice and is rarely practiced.
Even Easterbrook, (1981) considered it a rare practice, later termed the mythological
creature "dragon"
1
. Others consider it a "white tiger," a very rare creature. Even some
others think that price predation is more similar to "unicorn" because it is just a myth
(Cheng, 2020). They doubt that predation will never be observed (discovered) in practice
as this would be a highly ineffective strategy (Mateus, 2011).
Unlike the Chicago school, for post-Chicago and Harvard schools, predatory
pricing is an unfair and rational business competition practice. Therefore, predatory
pricing cases were found in America at the end of the 19th century involving a large
antitrust company, Standard Oil Company. Meanwhile, in Europe, the first cases were
found in the 1980s to the early 1990s involving AKZO Chemie BV v European
Community Commission
2
. Meanwhile, in Indonesia, since the enactment of Law No. 5
of 1999 on the Prohibition of Monopoly Practices and Unfair Business Practices, no
significant predatory pricing cases have been found. Before, predatory pricing was only
still in the stages of suspicion, supervision, and distrust. Until early 2021, the Indonesian
Commission for the Supervision of Business Competition (Commission for Supervision
of Business Competition, hereafter KPPU), through its Decision Number: 03/KPPU-
L/2020, stated that the reported party PT Conch South Kalimantan Cement legally and
convincingly carried out the predatory pricing practice. It means that predatory pricing
is no longer a “myth” like unicorns in Indonesia.
1
Where Easterbrook argued that “Do we have so many theories because predation is a common but
variegated phenomenon, curable by no single antidote? Or do we have so many theories for the same reason
that 600 years ago there were a thousand positions on what dragons looked like? Unlike most of the recent
writers, I conclude that there is no sufficient reason for antitrust law or the courts to take predation
seriously”
2
See Case C-62/86 AKZO Chemie BV v Commission of the European Communities (Article 86 —
Eliminatory practices of a dominant undertaking)
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Because this first official case is still very new to be decided in Indonesia, there is
still no research discussing and examining the case decisions related to predatory
pricing. This claim is further strengthened by the trend of research in Indonesia to date
related to predatory pricing, which still revolves around the discussion of indications
(Rahmawati, 2021; Santoso, 2018) and impacts (Febrina, 2017) no one has tried to analyze
the decision about the case. In fact, it is not easy to prove the practice of predatory
pricing. Concerning this, several criteria need to be fulfilled. Therefore, further analysis
is required regarding this decision. On this basis, the question in this research, "how and
what elements determine predatory pricing practices in KPPU Council's Case Decision
Number: 03/KPPU-L/2020?" then appears. Based on it, this study aims to analyze the
predatory pricing elements, which became strong reasons related to the Decision on
Case Number: 03/KPPU-L/2020 by the KPPU Council associated with the predatory
pricing case with the defendant or the reported party being PT Conch South Kalimantan
Cement.
2. Methodology
Considering that this research aims to analyze the KPPU's Case Decision, it is clear
that this research is normative research with a statutory, conceptual, and case approach.
The case approach in this study used ratio decidendi reasoning, which according to I
Made Pasek Diantha are the logical reasons that are the subject of a decision (Diantha,
2016). Thus, the data source used was also secondary data involving primary legal
materials in the form of Law No. 5 of 1999 concerning the Prohibition of Monopolistic
Practices and Unfair Business Competition and the Decision on the Case of the KPPU
Council Number: 03/KPPU-L/2020. To support these primary materials, this research
also employed secondary legal materials taken from books, scientific journal articles, and
sources from other trusted and reputable articles. The literature study technique
collected data were then analyzed using qualitative and prescriptive data analysis
techniques.
3. Results and Discussion
3.1. Predatory pricing and its proof elements
Predatory pricing has a long and convoluted history in both economic theory and
antitrust/competition law. Nonetheless, in most constituencies, competition law
addresses predatory pricing to date (Funk & Jaag, 2018). In principle, predatory pricing
is a business actor setting prices too cheap or too low. Hence, predatory pricing
theoretically occurs when a firm cuts its price below cost with a motive to drive
competitors out of the market so that the predatory firm can then act as a monopolist
(Taylor, Moldoveanu, & Taylor, 2013). It is then very much in accordance with Article
20 of Law No. 5 of 1999, which states that:
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“Business actors shall be prohibited from supplying goods and/or services by selling
at a loss or setting extremely low prices to eliminate or ruin their competitors'
business in the relevant market, which may result in monopolistic practices and or
unfair business competition.”
Concerning the article, Zaid et al., (2021) explained that the narrative of "setting
extremely low prices" in the law requires the price to be set very low and is usually below
the market price and the competitor's price. Meanwhile, the narrative or editorial "selling
at a loss" requires the price to be set below the average variable cost or cost (‘AVC’)
3
.
Based on this, the logic is that prices below average variable cost (‘AVC’) is a "black zone"
and should be considered a predatory practice, while prices above AVC will be safe from
predatory charges. Below average total costs (‘ATC’) are still considered or suspected of
being a predator when intended to eliminate competitors. Depending on additional
evidence, it may be called a 'grey zone,' where prices may be predatory (Brunet & Levy,
2017).
However, what needs to be emphasized here is that not all forms of low prices are
predatory pricing practices. Therefore, the editor of Law No. 5 of 1999 does not stop at
simply "selling at a loss" or "setting extremely low prices" but also continues with "to
eliminate or ruin the business of their competitors in the relevant market." Therefore,
according to Sih Yuliana Wahyuningtyas, competition law does not forbid business
actors from selling or offering products or services at very low prices. However, selling
at such a low price that it could eventually force competitors out of the market
(inevitably) may qualify as a predator, which is prohibited
4
(Wahyuningtyas, 2016).
Whereas in other literature, it is stated that in predatory pricing, the two essential
ingredients of any alleged predatory behavior must be the structural requirements of
market power and the intention to exploit price declines unfairly to increase or
consolidate that power. Market power and predatory intent are essential features that
antitrust courts must detect to validate predatory behavior allegations (Giocoli, 2013).
In United States law, the criteria for determining predatory pricing can be seen in
the Ratio Decidendi in the Supreme Court's decision against the Brooke Group in Brooke
Group Ltd. V. Brown & Williamson Tobacco Corp
5
, where the plaintiff must be asked to
prove two elements, namely in the form of an alleged price setting that is too low from
the predator and the second has reasonable prospects, or, based on Section 2 of the
Sherman Act, possibly dangerous, to be able to recoupment (Park, 2012). This criterion
is more in line with the modern definition of predatory pricing, namely prices that
maximize profits only because of their exclusive or other anti-competitive effects, i.e.,
prices that imply profit sacrifices in the short term to eliminate competition and obtain
3
The term "selling at a loss" as what is mentioned in the law this is because refers to the sale of products
or services below cost or average variable cost (AVC). Thus, the price set is shallow and definitely below
the competitors' prices”
4
“First of all, competition law does not prohibit offering products with very low prices per se. However,
selling a product at such a low price that it forces competitors to exit the market might qualify as predatory
and under certain circumstances be prohibited.”
5
See Brooke Grp. v. Brown & Williamson Tobacco Corp. - 509 U.S. 209, 113 S. Ct. 2578 (1993)
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higher profits in the long run (Giocoli, 2011).
Meanwhile, in Indonesia, KPPU has made guidelines for implementing Article 20
regarding predatory pricing, which explains the elements that must be included in
determining predatory pricing. In the guidelines, KPPU states that thirteen elements
must be considered in determining predatory pricing practices in the form of business
actors, supply, goods and services, selling at a loss and very low prices, intentions or
goals, eliminating or killing competitors, markets concerned, monopolistic practices, and
unfair business competition (Komisi Pengawas Persaingan Usaha, 2009).
Although the elements of predatory pricing evidence set by the KPPU based on
Article 20 of Law Number 5 of 1999 are more than the explanations of the experts
mentioned previously, these elements still miss or omit the essential elements in
predatory pricing in the form of a dominant position and recoupment. Also, because of
the large number of editorials or differences, there have been many demands for reform
urging a prominent legal test for predatory pricing (Cheng, 2020).
3.2. A Ratio Decidendi Analysis on Case Decision Number: 03/KPPU-L/2020
Initially, the Decision on Case Number: 03/KPPU-L/2020 was born because of
Case Number 03/KPPU-L/2020 concerning Alleged Violations of Article 20 of Law
Number 5 of 1999 concerning predatory pricing committed by PT Conch South
Kalimantan Cement in Cement sales in South Kalimantan Region
6
. After deliberation in
the Commission Council Session, the decision was finally set on January 13, 2021, and
read out in a session open to the public through electronic media on January 15, 2021.
The decision ultimately declared that the reported party had legally and convincingly
violated Article 20 of Law Number 5 of 1999 and sentenced him to a fine of
Rp.22,352,000,000.00 (twenty-two billion three hundred and fifty-two million rupiahs)
7
.
Every decision, of course, must have a ratio decidendi; moreover, in the case of
predatory pricing, which is considered very difficult to find and prove. Therefore, it is
necessary to look at logical and appropriate proof elements. Likewise, in this Decision
Number: 03/KPPU-L/2020, at least nine elements were used as the ratio decidendi as
described in points 19.21.1 and 9.2 of the decision.
3.2.1. Business actors’ elements
In Article 1 number 5 of Law Number 5 of 1999, it is explained that what is called
a business actor is "any individual or business entity, whether in the form of a legal entity
or not a legal entity established and domiciled or carries out activities within the
jurisdiction of the Republic of Indonesia, either individually or jointly through
agreements, and carries out various business activities in the economic field.
In this case, what is meant by the business actor in a quo case is PT Conch South
Kalimantan Cement (the reported party) which is, in fact, a business entity in the form
6
See the KPPU Council's Case Decision Number: 03/KPPU-L/2020, p. 1 first paragraph.
7
See Ibid, p. 393 last paragraph.
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of a limited liability company (Ltd) that carries out business activities in the cement
industry. It proves that PT Conch South Kalimantan Cement is a business actor. Thus,
the first element in proving predatory pricing in the form of "business actor elements" in
this case is proven or fulfilled
8
.
3.2.2. Supply element
In the provisions of Article 15 paragraph (1) of Law Number 5 of 1999, it is
explained that "what is included in the definition of supply is providing supplies, both
goods and services, in buying and selling activities, in nominative leasing or hire
purchase, or nominative leasing.”
In connection with this case, the reported party is a business actor established with
the intent and purpose to engage in the cement industry, which produces cement of
Ordinary Portland Cement (OPC) and Portland Composite Cement (PCC) from its
factory located in Tabalong, South Kalimantan. The reported party also sells its products,
namely OPC and PCC cement, including South Kalimantan, to distributors. Thus, the
activities of the reported party in a quo case can be claimed as activities in the form of
supplying goods through one of them selling PCC cement. Thus, the second element in
proving predatory pricing in the form of "supply elements" in this case is proven or
fulfilled
9
.
3.2.3. Goods elements
In Article 1, number 16 of Law Number 5 of 1999, what is meant by goods is "every
object, both tangible and intangible, both movable and immovable that can be traded,
worn, used or utilized by consumers or business actors.”
In this case, the reported party produces cement of the OPC and PCC types, also
commonly marketed cement products. In a quo case, the product referred to is a PCC-
type cement product categorized as goods. It is because PCC cement produced by the
reported party is a tangible object that consumers or business actors can trade, use, or
utilize. Hence, based on this, the third element in proving predatory pricing in the form
of the “goods element” in this case is proven or fulfilled
10
.
3.2.4. Selling at a loss/setting extremely low prices elements
The element of selling at a loss or setting a very low price is one of the most
important elements in proving predatory pricing through a three-step structured rule of
reason reasoning. In addition, concerning this case, the KPPU Council found that, based
on data obtained from the reported party and its distributors (which are confidential), in
2015, the reported party's cost of goods sold was higher than the reported party's average
selling price, which resulted in a loss in 2015. The same as in 2019, the selling price of the
reported party's PCC-type cement was also lower than its competitor business actors in
the South Kalimantan region.
8
see Ibid, pp. 382-383 described in items 9.3.1-9.3.3.
9
See Ibid, pp. 383-384 described in items 9.4.1-9.4.6.
10
See Ibid, pp. 384 described in items 9.5.1-9.5.5.
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On the other hand, from 2016 to 2019, the reported party's cost of goods sold was
lower than the reported party's average selling price. Thus, the reported party has
carried out selling at a loss in 2015. Therefore, based on this, the fourth element in
proving predatory pricing in the form of “selling at a loss or setting a very low price” in
this case is proven or fulfilled
11
.
3.2.5. Excluding or running out of competitors' business (barriers to entry) elements
In addition to the price element, barriers to entry are also an essential element in
establishing a practice. In fact, because of the importance of this element, the High Court
of Australia may not ask to show the possibility of compensation (which incidentally is
also the most crucial element in proving predatory pricing) if a predatory business actor
starts with a dominant share in a market with high barriers to entry (Hay & Hay, 2015).
In this case, it is known in the decision that based on the cement market share in
the South Kalimantan region, and five business actors exited the South Kalimantan area,
including PT Cemindo Gemilang, PT Semen Bosowa Maros, PT Solusi Bangun
Indonesia, PT Jui Shin Indonesia, and PT Semen Jawa. The five left and died in the
market because they could not compete with the reported price, too cheap. It then
increased market concentration. The higher the market concentration, the higher the
monopoly power and the lower the level of competition. Therefore, increasing market
concentration may result in monopolistic practices and/or unfair business competition.
Based on this, the fifth element in proving predatory pricing in the form of “the element
of getting rid of or shutting down the business of its competitors” in this case is proven
or fulfilled
12
.
3.2.6. Relevant market elements
Article 1 number 10 of Law Number 5 of 1999 states "a market related to a certain
marketing range or area by business actors for the same or similar goods and/or services
or a substitute for certain goods and or services."
In this case, it is known that, in general, there are two types of cement products
marketed by the reported party, namely OPC and PCC cement. Meanwhile, most of the
reported party's cement production in the South Kalimantan region was PCC-type
cement, which was also corroborated based on the testimony of witnesses. Thus, the
relevant market in a quo case is the PCC cement sales market in the South Kalimantan
region. Thus, based on this, the sixth element in proving predatory pricing in the form
of "the relevant market element" in this case is proven or fulfilled
13
.
11
See the KPPU Council's Case Decision Number: 03/KPPU-L/2020, pp. 384- 385 described in items
9.6.1-9.6.5.
12
See the KPPU Council's Case Decision Number: 03/KPPU-L/2020, p. 385 described in items 9.7.1-
9.6.4.
13
See ibid, pp. 385-386 described in items 9.8.1-9.8.6.
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3.2.6. "Resulting in monopolistic practices and/or unfair business competition"
elements
“Resulting in monopolistic practices and/or unfair business competition” is the
most important element in the rule of reason in proving predatory pricing. "Monopoly
practice" is then termed in the provisions of Article 1 number 2 of Law Number 5 of 1999
as "concentration of economic power by one or more business actors, which results in
the control of production and/or marketing of certain goods and/or services to create
unfair business competition and can harm the public interest." Meanwhile, the term
"unfair business competition" is explained as "competition between business actors in
carrying out production and/or marketing activities of goods and/or services carried
out dishonestly or against the law or hindering business competition" based on the
provisions of Article 1 point 6 of Law Number 5 of 1999.
Referring to this case, the reported party's actions in implementing a very low
pricing strategy compared to its competing business actors from 2014 to 2019 impacted
the reported party's market increase significantly due to the exit of five competing
business actors from the relevant market. The significant increase in the market share of
the reported party and the exit of 5 (five) competing business actors from the relevant
market resulted in an increasingly concentrated market, resulting in monopolistic
practices and/or unfair business competition. Thus, based on this, the seventh element,
which is also the last element in proving predatory pricing in the form of “the element
resulting in monopolistic practices and/or unfair business competition” in this case, is
proven or fulfilled
14
.
Table 1. Fulfillment of the Elements of Proof of Predatory Pricing in the KPPU Council's
Decision Number: 03/KPPU-L/2020
Elements of Proof
Fulfillment
Decision points
Business actor elements
Fulfilled
9.3
Supply elements
Fulfilled
9.4
Goods elements
Fulfilled
9.5
Selling at a loss/ setting extremely low prices elements
Fulfilled
9.6
Excluding or running out of Competitors' Business (barriers
to entry) elements
Fulfilled
9.7
Relevant market elements
Fulfilled
9.8
“Resulting in monopolistic practices and/or unfair business
competition” elements
Fulfilled
9.9
Source: The KPPU Council's Decision Number: 03/KPPU-L/2020, (2021)
Although most of the elements of proving predatory pricing practices have been
fulfilled, several other elements are also deemed very urgent by many experts to prove
predatory pricing practices, namely proving that the business actor has a dominant or
incumbent position and proof of recovery. It is also stated in point 10.13.2 in the decision
of the case where it is stated:
14
See ibid, pp. 386-387 described in items 9.9.1-9.8.5.
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“The dominant position or market power of a business actor is an important
consideration in predatory pricing issues. Even the condition of a dominant position or
having an enormous market power is often one of the important requirements that must
be fulfilled by a business actor who wants to carry out a predatory pricing strategy.”
Although not included in the elements that must be fulfilled, Case Decision
Number: 03/KPPU-L/2020 also describes the dominant position and efforts to increase
profits after the practice of selling at a loss and/or meager price from the reported party,
which is very clear and long explained in items 10.13.2 to 10.13.3. Thus, it reinforces that
PT Conch South Kalimantan Cement has actually and firmly carried out a prohibited
predatory pricing practice so that the reported party paid a fine of Rp. 22,352,000,000.00
(twenty-two billion three hundred fifty-two million rupiahs) for violation of Article 20
Law Number 5 of 1999.
According to Article 48 (2) of Law No. 5 of 1999, the threat for predatory business
actors is the threat of “a fine of a minimum of 5,000,000,000.00 (five billion rupiahs) and
a maximum of Rp. 25,000,000,000.00 (twenty-five billion rupiahs), or imprisonment in
lieu of a fine for 5 (five) months". When compared, PT Conch South Kalimantan Cement
did not get the highest fine even though it has been proven to have practiced predatory
pricing. It, of course, cannot be separated from the relief granted by the KPPU Council
by considering that the reported party is
15
;
a. A foreign investor in the manufacturing industry sector with a high level of
investment has significantly added value to the national economy, especially in
creating jobs and business opportunities.
b. According to Presidential Regulation Number 71 of 2015, cement industry players are
classified as commodities categorized as Important Goods.
c. Always cooperative and respectful of the trial process, as evidenced by always being
present during the trial process
d. A company classified as a "maverick" uses and implements innovative production
processes to encourage the efficiency of the national cement industry
e. The last one that relieves the reported fine is also due to the COVID-19 factor. It was
stated that the condition of the Corona Virus Disease 2019 (COVID-19) Pandemic had
resulted in almost all business actors being significantly affected, including the
reported party.
Therefore, the decision of the KPPU Council is proof that predatory pricing exists
and may occur. This decision can also be used to determine predatory pricing, especially
in Indonesia. Given that the approach to predatory pricing in Indonesia is a rule of
reason, of course, determining whether pricing is predatory or not is quite difficult and
complicated. Several criteria or elements must then be met and proven to justify
predatory pricing.
15
See Ibid, pp. 392-393, described in items 12.2.2.
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4. Conclusion
Based on the discussion, it can be concluded that predatory pricing is an unfair
business competition practice because it violates Article 20 of Law No. 5 of 1999. In
determining the practice of predatory pricing, elements such as business actors,
supplying goods, selling at a loss, setting meager prices, eliminating, or shutting down
the businesses of competitors, the relevant market, resulting in monopolistic practices
and/or business competition, dominant position and unhealthy recoupment must be
proven. In the Decision on Case Number: 03/KPPU-L/2020, the KPPU Council seems to
use these elements, which were then used as the ratio decidendi in proving the practice
of predatory pricing at PT Conch South Kalimantan Cement. Besides, because all
elements have been fulfilled, through the Decision on Case Number: 03/KPPU-L/2020,
PT Conch South Kalimantan Cement was finally declared to have violated Article 20 of
Law No. 5 of 1999 with due regard to aspects that can alleviate it. Thus, what has been
decided by the KPPU Council is appropriate and correct. Therefore, these reasons can
then be used for future decisions on similar problems (predatory pricing).
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Law
Law No. 5 of 1999 on the Prohibition of Monopoly Practices and Unfair Business
Practices.
Decision
KPPU Council's Case Decision Number: 03/KPPU-L/2020, 2021.
