Perjanjian Eksklusif dibidang Perdagangan dalam Perspektif Hukum Persaingan Usaha (Studi Komparatif Indonesia dengan Uni Eropa)

Abstract

The trade business sector has currently experienced many developments. Based on Law Number 5 of 1999 concerning the Prohibition of Monopolistic Practices and Unfair Business Competition, exclusive agreements are included as prohibited agreements in Article 15. However, Regulation of the Business Competition Supervisory Commission Number 5 of 2011 concerning Guidelines for Article 15 (Closed Agreements) of Law Number 5 of 1999 concerning the Prohibition of Monopolistic Practices and Unfair Business Competition states that exclusive agreements are assessed flexibly by considering the impacts that arise with the Rule of Reason approach so that there is a lack of clarity of norms that create legal uncertainty for business actors in Indonesia. If we look at the European Union which also uses the Rule of Reason approach, we can find several things that have not been specifically regulated in Indonesia related to exclusive agreements. This raises the problem formulation regarding the comparison of exclusive agreement regulations between Indonesia and the European Union and the determination of criteria for exclusive agreements that can hinder business competition. Exclusive agreements as regulated in business competition law in Indonesia and in the European Union emphasize how exclusive agreements are classified as agreements that are prohibited from being carried out in business competition so that they are described in general in the literature review regarding several legal bases, concepts, and basic knowledge regarding exclusive agreements in business competition law in the field of trade which are the basis for conducting analysis and research based on the formulation of the problem and explaining the research conducted in this final thesis. This literature review consists of several things, namely, business competition law, exclusive agreements, trade, and the Business Competition Supervisory Commission. The results of the research based on the formulation of the problem that has been analyzed using the normative research method, namely, there are differences in the regulation of exclusive agreements between those regulated in the laws and regulations in Indonesia and the laws and regulations in the European Union even though they use the same type of approach, namely the Rule of Reason. The European Union has very strict rules related to the use of exclusive agreements by business actors in the European Union, but also has a flexible side by providing exemptions to several exclusive agreements that are considered to provide benefits to business competition. Meanwhile, the business competition law that regulates exclusive agreements in Indonesia does not provide strict limits on the extent to which exclusive agreements may be carried out. Therefore, several things were found that can be updated in business competition law, especially regarding exclusive agreements in Indonesia to determine the criteria for exclusive agreements that can hinder business competition in Indonesia, namely the addition of regulations regarding exceptions to permitted exclusive agreements and also updating regulations on market share and also adding new rules regarding the elimination of exceptions to exclusive agreements. The conclusion of this study is the need for a review and renewal of the laws and regulations governing exclusive agreements in Indonesia to achieve legal certainty for business actors and the public involved in business competition. Furthermore, the existing laws and regulations on exclusive agreements in Indonesia demonstrate a lack of clarity in norms, necessitating reform. The recommendations include formulating and updating the laws and regulations related to exclusive agreements by authorized institutions, and encouraging business actors to exercise caution and understand the laws and regulations on exclusive agreements in Indonesia.