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What is the general attitude of business and the authorities to competition compliance?
The Japan Fair Trade Commission (JFTC) is keen on competition compliance, describing its strict and active enforcement and its support and advocacy of competition compliance efforts as ‘a pair of wheels’ in competition policy. It has often conducted surveys on efforts in business of competition compliance from various viewpoints and made those results, along with its comments, available on its dedicated webpage, titled ‘corporate compliance.’ Since 2006, the surveys have covered competition compliance by companies (2006, 2009, 2010, 2012), compliance with foreign competition laws by companies (2015), competition compliance by trade associations (2016), compliance by foreign-affiliated companies (2008), and compliance in construction business (2007). The general attitude of business to competition compliance is very positive. The JFTC’s 2012 survey conducted on companies listed on the first section of the Tokyo Stock Exchange showed that 68.8 per cent of the companies had established an Antimonopoly Law (the AMA) compliance manual and that more than 80 per cent of the companies had conducted AMA compliance training internally.
Government compliance programmes
Is there a government-approved standard for compliance programmes in your jurisdiction?
There is no government-approved standard for compliance programmes. However, in the survey reports, the JFTC has identified the ‘3Ds’ as essential measures to be included in corporate compliance programmes so as to ensure the effectiveness of compliance as a ‘tool for controlling and avoiding risks.’ The 3Ds are:
- deterrence: preventing violations of the AMA through training and other measures;
- detection: early discovery of AMA violations through audits; and
- damage control: appropriate responses to violations of the AMA.
Further, the JFTC states that to share an AMA compliance programme across the whole company and to operate it in a unified manner, it should be written and made easily accessible to personnel by listing it as such on the corporate intranet or similar.
Applicability of compliance programmes
Is the compliance guidance generally applicable or do best practice and obligations depend on a company’s size and the sector of the economy it operates in?
The JFTC states in its survey report that ‘[s]pecific risks of individual companies concerning AMA violations differ significantly according to the business content, market environment, and other factors’, and that a model compliance programme is not sufficiently effective. The JFTC suggests that to establish an effective compliance programme, a company should focus on its unique antitrust risks, taking account of ‘the business size, business content, and organisational climate, and external factors including the actual state of the industry, the market situation, and relevant legal systems.’
If the company has a competition compliance programme in place, does it have any effect on sanctions?
The sanctions against a violation of the AMA are the JFTC’s cease and desist order, the JFTC’s administrative surcharge order, and a court’s criminal fine or jail sentence (only applicable where the JFTC makes a criminal accusation, considering the violation to be serious). The fact that a company has a competition compliance programme in place will be considered in the context of the JFTC’s cease and desist order and as a general mitigating factor in the sentencing by court. On the other hand, it will not be considered in calculating the amount of the administrative surcharge imposed by the JFTC.
Implementing a competition compliance programme
Commitment to competition compliance
How does the company demonstrate its commitment to competition compliance?
There is no standard practice, but it is common for a Japanese company to provide a clause about its commitment to competition compliance in its code of conduct, and to provide detailed rules of competition compliance in its competition compliance manual. In addition, the JFTC states in its survey report that the top management’s commitment to and initiative on competition compliance is the most important element in ensuring the effectiveness of a competition compliance programme.
What are the key features of a compliance programme regarding risk identification?
There are two ways to detect and identify antitrust risks. The first way is to obtain information directly from employees. In doing so, the JFTC recommends employing an internal reporting system and in-house leniency policy. The second way is to detect antitrust risks through internal audits by personnel in charge of legal or compliance departments.
What are the key features of a compliance programme regarding risk assessment?
The legal and compliance department generally takes a key role in risk assessment. The JFTC stresses in its survey report the importance of establishing and utilising a system to consult with the legal and compliance department, stating that it is ‘necessary not only for deterring acts in violation of the AMA but also for preventing sales activities from being excessively hampered due to concern regarding possible AMA violations.’
What are the key features of a compliance programme regarding risk mitigation?
To mitigate antitrust risks when an actual or potential violation is detected, a company should conduct an internal investigation and consider making a leniency application. As it requires special expertise and resources, the JFTC recommends a company have a contingency manual that describes necessary actions to be taken in case of detection of antitrust risks. Many Japanese companies have established such contingency manuals. In addition, an increasing number of Japanese companies have additionally established manuals that addresses a situation where the JFTC conducts a dawn raid on a company’s premises, covering how to observe and cooperate with the raid, how to preserve documents, how to maintain a legal privilege (note that Japan does not recognise attorney-client privilege, but it is important to maintain a legal privilege to deal with possible foreign procedures).
Compliance programme review
What are the key features of a compliance programme regarding review?
There is no standard for the review, but periodical review of a compliance programme is necessary as the legal standards of antitrust violations change from time to time (note also that Japanese companies are exposed to antitrust risks not only in but broadly outside of Japan, and the number of countries implementing competition laws are increasing) and the quality of Japanese companies’ compliance programmes has been improved accordingly.
Dealings with competitors
Arrangements to avoid
What types of arrangements should the company avoid entering into with its competitors?
Article 3 of the AMA prohibits a company from causing an unreasonable restraint of trade and article 2, paragraph (6) of the AMA provides the meaning of ‘unreasonable restraint of trade’.
In accordance with these rules, a company must avoid entering into any contract, agreement or any other means (irrespective of what it is called), in concert with other companies, mutually restrict or conduct their business activities in such a manner as to fix, maintain, or increase prices, or to limit production, technology, products, facilities, or counterparties, thereby causing, contrary to the public interest, a substantial restraint of competition in any particular field of trade.
What precautions can be taken to manage competition law risk when the company enters into an arrangement with a competitor?
A company should conduct thorough analysis on the market where it plans to enter into an agreement with a competitor. The competition law risk of the arrangement may become substantial if there are certain market conditions including, among others, the number of players being relatively small, the consolidated market share after the arrangement with the competitor being relatively high, or the competition pressure from customers in the market being relatively weak. In order to make the above-mentioned analysis, consultation with professionals may be a prudent option.
A company can also make a prior consultation with the JFTC to discuss whether the possible arrangement with the competitor contains a risk of unreasonable restraint of trade. The prior consultation is held under one of JFTC’s guidelines ‘Prior Consultation System for Activities of Business’ and the JFTC must give a response in writing within 30 days of the official receipt of an application for prior consultation. When a response confirms that there is no conflict between the action and the AMA, no legal measure will be taken against the act covered in the consultation on the basis of a conflict with the AMA.
What form must behaviour take to constitute a cartel?
No specific requirement exists as for a form of behaviour constituting a cartel. Pursuant to article 2, paragraph (6) of the AMA, any type of contract, agreement or any other means (irrespective of what it is called) can be regarded as a cartel.
With respect to attempts at prohibited behaviour, pursuant to a decision of the Supreme Court as of 24 February 1984 (Oil Cartel (Price-Fixing)), neither the implementation of an agreement nor an increase in price are required for a violation under the AMA.
Under what circumstances can cartels be exempted from sanctions?
Cartels can be exempted from sanctions when statutes (the AMA and other statutes) have specific exemptions. Such exemptions include exercise of intellectual property rights (article 21 of the AMA) and certain types of conduct in the transportation sector (pursuant to, among others, the Aviation Law and the Road Transportation Law).
Japan has no prior notification mechanism for cartels to be exempted from sanctions.
Can the company exchange information with its competitors?
Information exchange is regulated in a framework of cartel prohibition in Japan. If a company engages in information exchanges with its competitors that may cause an unreasonable restraint of competition in any particular field of trade through mutually restricting or conducting their business activities, such information exchange may constitute a cartel.
Because Japan has no specific rule for the criteria as to what constitutes competitively sensitive information, case-specific analysis is required to determine what kind of information is considered competitively sensitive. In general, factors that may substantially affect competition among market participants (eg, price, volume and capacity) are likely to be considered competitively sensitive.
Cartel leniency programmes
Is a leniency programme available to companies or individuals who participate in a cartel in your jurisdiction?
Japan has a leniency programme applicable to unreasonable restraints of trade (ie, cartel and bid rigging). The programme is only available for companies and offers full immunity or reduction of the surcharges pursuant to article 7-2, paragraph (10) of the AMA. As to criminal accusations, the JFTC has a policy not to file accusations to the public prosecutors’ office against the first company that submitted qualified reports and materials before the start date of the investigation, nor against the officers, employees and the other persons of the company that engaged in the behaviour.
The requirements for full immunity from the surcharges are described in article 7-2, paragraph (10) of the AMA as:
- the company is the first among the companies that committed the violation to individually submit reports and materials regarding the facts of the said violation to the JFTC; and
- the company did not commit further acts on or after the investigation start date in connection with violation under investigation.
Pursuant to article 7-2, paragraph (11) and (12) of the AMA, a reduction of the surcharges is to be granted when the following requirements are met (the total number of companies that may apply to the leniency programme is no more than five (up to three applicants on or after the investigation start date)).
Requirements when the leniency application was made prior to the investigation start date:
- the company is the second (reduction of 50 per cent), the third, the fourth or the fifth (reduction of 30 per cent) among the companies that committed the violation to individually submit reports and materials regarding the facts of said violation to the JFTC;
- the company is not one that committed the said violation on or after the investigation start date in regard to the said violation; and
- the fourth and the fifth applicants should submit reports and materials including the facts other than those already ascertained by the JFTC.
Requirements when the leniency application was made on or after the investigation start date (reduction of 30 per cent):
- the company, in accordance to the JFTC’s Rules, individually submitted reports and materials of the facts regarding the violation (excluding materials related to the facts already ascertained by the JFTC) to the JFTC by the deadline set in the JFTC’s Rules after the investigation start date for the case of the said violation;
- the company is not one that committed the said violation on or after the day when the reports and materials were submitted; and
- the applicants on or after the investigation start date should submit reports and materials including the facts other than those already ascertained by the JFTC.
In addition to above, the following requirements in article 7-2, paragraph (17) of the AMA and section 8 of the Rules on Reporting and Submission of Material regarding Immunity from Reduction of Surcharges must be complied with by the applicant to make a determination of applicability of the leniency programme:
- the report or materials submitted by the applicant should not contain false information;
- the applicant must submit the requested reports or materials and must not submit false reports or false materials responding to the JFTC’s additional requests;
- the applicant should not coerce other enterprises to commit the violation or block other enterprises from ceasing to commit the said violation in the same case; and
- the applicant must not disclose the fact of application to third parties without justifiable reasons.
As for the confidentiality of the identification of the applicants, the JFTC will not disclose the name of the applicants during the investigation process. Once the leniency programme is officially applied, however, the JFTC shall announce the name of the applicants in its press release.
Can the company apply for leniency for itself and its individual officers and employees?
Only companies may apply for the immunity from or reduction of surcharges. There is no leniency programme applicable to individuals. As to criminal charges, the JFTC has a policy that it will not file accusations to the public prosecutors’ office against the officers, employees and other persons of the first company that submitted qualified reports and materials before the start date of the investigation.
Can the company reserve a place in line before a formal leniency application is ready?
A company may reserve a place in line before submitting detailed facts of the violation. In the case of a leniency application prior to the investigation start date, a company that is going to report and submit materials must submit a written report containing a summary of the violation by facsimile. Based on the order of the receipt of these reports, the JFTC identifies and notifies a provisional place in line for each applicant. When all the requirements for leniency applications are confirmed to be fulfilled, the JFTC will make a formal decision as for the eligibility of the leniency programme and the ‘place in line’ of each applicant.
If the company blows the whistle on other cartels, can it get any benefit?
No. Even if a company intends to be a whistle-blower on other cartels in the course of an investigation on a cartel, the company cannot receive any extra benefit for the original case. The benefit that a company may obtain from a leniency application is only relevant to the case for which it has submitted reports and materials.
Dealing with commercial partners (suppliers and customers)
What types of vertical arrangements between the company and its suppliers or customers are subject to competition enforcement?
The AMA regulates vertical arrangements primarily through its prohibition of ‘unfair trade practices’ and ‘private monopolisation’. While a company requires a substantial restraint of competition to constitute a private monopolisation infringement, it requires a finding of only the likelihood of impeding fair competition to establish an infringement of unfair trade practices. However, when assessing many types of unfair trade practices, the JFTC needs to consider the possible effect of the act on competition and thus the market shares of the parties are still relevant.
The types of conduct classified as unfair trade practices are as follows:
- refusal to trade;
- discriminatory pricing or treatment;
- unjust low price selling;
- unjust high price purchasing;
- resale price maintenance;
- customer inducement through deception or unjust benefits;
- exclusive trading;
- trading on restrictive terms;
- unjust interference with the appointment of an officer;
- interference with a competitor’s transactions;
- interference with the internal operation of a competitor; and
- abuse of superior bargaining position.
Resale price maintenance is, in principle, illegal unless it has a justifiable reason. However, it is usually not illegal, if a direct purchaser to which a supplier instructed a resale price only functions as a commission agent and the sale is in substance being done between the supplier and its ultimate purchasers.
Would the regulatory authority consider the above vertical arrangements per se illegal? If not, how do they analyse and decide on these arrangements?
There is no per se concept under the AMA. However, the JFTC considers certain price restrictions, including resale price maintenance, as being in principle illegal unless they are supported by a justifiable reason. As it is practically difficult to persuade the JFTC in terms of a justifiable reason, a company needs to be careful when considering the legality of price restrictions.
On the other hand, the JFTC normally assesses non-price restrictions in terms of whether they have the effect of market foreclosure or price maintenance by taking into account various factors, such as: inter-brand competition, intra-brand competition, the market share of the acting company, and the number or presence of the companies subject to the restrictions. This is a similar approach to ‘rule of reason’ in other jurisdictions.
Under what circumstances can vertical arrangements be exempted from sanctions?
Intra-group vertical arrangements can be exempted from the application of unfair trade practices.
A transaction between a parent and its wholly owned subsidiary or between sister companies wholly owned by the same parent is usually not subject to the regulation of unfair trade practices. Even a transaction between a parent and its subsidiary or between sister companies, in which less than 100 per cent of the shares (in principle, more than 50 per cent) are held by the parent, are not in principle subject to the regulation of ‘unfair trade practices’, assuming the transactions are in substance equivalent to intra-company transactions. Whether or not a transaction is in substance equivalent to an intra-company transaction is to be determined on a case-by-case basis by taking into account various factors, including:
- the stock holding ratio of the parent;
- executives sent from the parent to its subsidiary;
- the involvement of the parent in financial matters and business policy of its subsidiary; and
- the business relationship between the parent and its subsidiary (eg, percentage of trade with the parent in the total trade of the subsidiary)
How to behave as a market dominant player
Determining dominant market position
Which factors does your jurisdiction apply to determine if the company holds a dominant market position?
Under the AMA, a company is not required to have dominance to engage in unfair trade practices or private monopolisation. In order to engage in private monopolisation, which is equivalent to an abuse of dominant position in other jurisdictions, a company must cause a ‘substantial restraint of competition’ in the relevant market. In order to assess whether there is a substantial restraint of competition, the JFTC generally takes into account various factors, including:
- market share and ranking of an infringing company;
- status of competition in the relevant market;
- status of its competitors;
- potential competitive pressure of entry (including entry barriers);
- customer’s bargaining power;
- efficiency; and
- other justifiable reasons to benefit consumers (eg, safety and health).
The Exclusionary Private Monopolisation Guidelines (Monopolisation Guidelines) provide that a market share in excess of 50 per cent is generally considered by the JFTC in setting its enforcement priorities.
Abuse of dominance
If the company holds a dominant market position, what forms of behaviour constitute abuse of market dominance? Describe any recent cases.
There are two types of conduct that constitute ‘private monopolisation’ under the AMA: exclusionary conduct by exclusion and exploitative conduct by control.
Exclusion is interpreted as making it difficult for other companies to continue their business activities or preventing them from entering the market. The Monopolisation Guidelines refer to the following types of conduct as typical examples:
- below-cost pricing;
- exclusive dealing;
- tying; and
- a refusal to supply and discriminatory treatment.
Control is interpreted as depriving other companies of their freedom to make decisions on their business activities and forcing them to follow the controlling company.
In the past 20 years, there have been only 11 enforcement cases against private monopolisation. One recent high-profile case is the case against the Japanese Society of Authors, Composers and Publishers (JASRAC), a dominant copyright collective association in Japan, in which the JFTC issued a cease-and-desist order against JASRAC to stop its pricing policy for copyright licensing fees in 2009. JASRAC was alleged to have taken advantage of its dominant position in the relevant market. JASRAC appealed the order to the hearing procedure within the JFTC and the JFTC decided to rescind the original order in 2012. However, a competitor of JASRAC appealed the decision to the Tokyo High Court. The court overturned the JFTC’s decision in 2013, finding an infringement. JASRAC and the JFTC appealed the court’s ruling to the Supreme Court; however, the court dismissed the appeal.
Under what circumstances can abusing market dominance be exempted from sanctions or excluded from enforcement?
There is no exemption for private monopolisation under the AMA. However, new legislation introducing a commitment procedure passed the Diet in December 2016, pursuant to which the JFTC can decide not to issue any cease-and-desist order or surcharge order against an infringement subject to its investigation (mainly single firm conduct) if a company voluntarily proposes effective remedies to the JFTC and the JFTC approves them. The legislation would come into effect within a year since it is to be enacted at the effective date of the Trans-Pacific Strategic Economic Partnership Agreement (TPP), which has been signed again by 11 countries in March 2018 upon the withdrawal of the United States.
Competition compliance in mergers and acquisitions
Competition authority approval
Does the company need to obtain approval from the competition authority for mergers and acquisitions? Is it mandatory or voluntary to obtain approval before completion?
Yes. When the scheduled transaction is within the types of transactions for which the AMA requires a merger filing and the relevant filing thresholds are met, a party or parties to the transaction have to submit a mandatory merger notification to the JFTC. There is no notification deadline, but the parties to the transaction cannot close the transaction until the expiration of the statutory waiting period that is to be counted from the date of the formal receipt of the notification.
The types of the transaction for which the AMA requires a merger filing are an acquisition of voting rights that exceeds either 50 per cent or 20 per cent, merger, corporate split, joint share transfer and acquisition of business.
As for the filing thresholds, the consolidated turnover in Japan of each party is relevant. The key thresholds for transactions other than business transfers are: consolidated turnover in Japan of the acquirer or one party exceeds ¥20 billion; and consolidated turnover in Japan of the target or other party exceeds ¥5 billion. The key thresholds for a business transfer are: the consolidated turnover of acquirer exceeds ¥20 billion and the consolidated turnover in Japan generated by the target business exceeds ¥3 billion.
The party responsible for notification differs depending on the type of transaction. As for an acquisition of voting rights or business, the acquirer has responsibility. As for a merger, corporate split, and joint share transfer, both parties have responsibility.
How long does it normally take to obtain approval?
The merger control regime in Japan has two review phases.
Normally a transaction is reviewed in Phase I, which has a 30 calendar day review period (counted from the formal receipt of the notification form and all attached materials). If, however, the JFTC considers that more detailed review is necessary and makes an official request for information, the Phase II review starts.
In Phase II, the review period is extended to 120 days from the date of the formal receipt of the notification form and all attached materials or 90 days from the date of formal receipt of all the response to the official request for information, whichever is later.
Though there is no simplified procedure in Japan, the JFTC may, when necessary, shorten the waiting periods. The shortening of the waiting period is permitted, in principle, under the condition that it is evident that the effect of the reviewed transaction may not substantially restrain competition in any relevant market, and the notifying company requests in writing to shorten the waiting period.
Though the review period differs depending on the cases, vast majority of merger reviews are concluded in Phase I.
If the company obtains approval, does it mean the authority has confirmed the terms in the documents will be considered compliant with competition law?
No. The JFTC only examines whether the notified transaction will substantially restrain competition in any particular field of trade. In this regard, the termination of the merger review cannot be interpreted as the JFTC’s having made a review on any other aspects of the transaction (eg, terms and provisions in the relevant documents).
Failure to file
What are the consequences for failure to file, delay in filing and incomplete filing? Have there been any recent cases?
A fine of not more than ¥2 million is applicable to a failure to file a notification, incorrect or misleading information in a notification or failure to observe waiting periods.
Also the JFTC may issue a cease and desist order against the parties if it finds that the transaction which was not appropriately notified has the possibility of causing a substantial restraint of competition in any particular field of trade. As for a failure to comply with the cease and desist order, imprisonment with work for not more than two years or a fine of not more than ¥3 million for a person, and a fine of not more than ¥300 million for a company may be applicable after it has become final and binding. Also, a non-penal fine of not more than ¥500,000 may be applied to any person who has violated a cease-and-desist order.
To date, no actually sanctioned case exists in Japan for non-compliance with merger controls.
Investigation and settlement
Under which circumstances would the company and its officers or employees need separate legal representation? Do the authorities require separate legal representation during certain types of investigations?
Though separate legal representation may be desirable for the company and for the officers or employees of the company when conflicts of interest exist between them, almost all officers or employees who have committed a violation of the AMA in a course of their employment are advised by legal counsel of the company they are working for. The JFTC usually does not require separate legal representation during the investigations.
For what types of infringement would the regulatory authority launch a dawn raid? Are there any specific procedural rules for dawn raids?
The JFTC typically launches a dawn raid in cartel and bid-rigging cases.
There are two types of investigations for which the JFTC may launch a dawn raid. Most dawn raids are conducted under administrative investigation, but some are conducted under compulsory investigation of criminal cases. In the course of an administrative investigation, the JFTC may launch a dawn raid in any type of case as long as it believes there may be a fact in violation of the AMA. In the course of a compulsory investigation of criminal cases, the JFTC may launch a dawn raid only when there may have been a violation of articles 89 through 91 of the AMA.
Among others, the following procedural rules as well as the AMA itself should be complied with by the JFTC during dawn raids: Enforcement Ordinance on the AMA, Rules on Administrative Investigations, Rules on Compulsory Investigation of Criminal Cases and Rules on Reporting and Submission of Materials.
The JFTC may conduct dawn raids on any premises as long as the investigator reasonably believes the place is necessary to be raided with respect to the investigation. Typically, the JFTC conducts dawn raids on business offices of the company. Though no specific rules on digital searches exist, the guidelines on investigations under the AMA clearly state that electronic data is subject to investigation and submission.
What are the company’s rights and obligations during a dawn raid?
A company that was subject to a dawn raid has an obligation to cooperate with the dawn raid. If the company violates the obligation, the company shall be subject to a criminal fine of not more than ¥3 million.
Pursuant to section 22 of the Rules on Administrative Investigations, a company that was subject to a dawn raid may make a motion for objection to the JFTC within one week of the day on which the measure was taken.
Although the JFTC may allow the company to let a lawyer attend the dawn raid, the JFTC may start dawn raids without attendance of the lawyer as the company has no legal right to let its lawyer attend the dawn raid.
Is there any mechanism to settle, or to make commitments to regulators, during an investigation?
Currently no mechanism to settle, or to make commitments to regulators, during an investigation exist in Japan. An act that introduces a mechanism similar to the commitment procedure in Europe was enacted, but the act has not yet come into effect (see question 42).
What weight will the authorities place on companies implementing or amending a compliance programme in settlement negotiations?
Are corporate monitorships used in your jurisdiction?
Corporate monitorships have not been used in Japan.
Statements of facts
Are agreed statements of facts in a settlement with the authorities automatically admissible as evidence in actions for private damages, including class actions or representative claims?
Invoking legal privilege
Can the company or an individual invoke legal privilege or privilege against self-incrimination in an investigation?
Attorney-client privilege is not available in Japan.
As for the privilege against self-incrimination, an individual who is alleged to be involved in a violation of the AMA may invoke privilege in the course of an interview under compulsory investigation of criminal cases. Under the administrative investigation process, on the other hand, the privilege against self-incrimination cannot be invoked.
What confidentiality protection is afforded to the company or individual involved in competition investigations?
Confidential information of the company or individual involved in investigations is protected by the confidentiality obligation of the current and former staff of the JFTC.
Pursuant to article 38 of the AMA, current officials of the JFTC must not express their opinions outside the JFTC on the existence or non-existence of facts or the application of laws and regulations with regard to a case. Also, pursuant to article 39 of the AMA, current and former officials of the JFTC shall not divulge or make surreptitious use of trade secrets of enterprises that came to their knowledge in the course of their duties.
Refusal to cooperate
What are the penalties for refusing to cooperate with the authorities in an investigation?
Any person who refuses to cooperate with the authorities in an administrative investigation shall be subject to punishment by imprisonment with work for not more than one year or by a fine of not more than ¥3 million (article 94 of the AMA).
Is there a duty to notify the regulator of competition infringements?
No. Although article 45, paragraph (1) of the AMA describes that any person who believes there to be a fact in violation of the AMA may report the fact to the JFTC and ask for appropriate measures to be taken, the reporting is not compulsory.
What are the limitation periods for competition infringements?
Cease-and-desist orders and surcharge payment orders may not be made after five years have elapsed since the date of discontinuation of the violation. On the other hand, there is no limitation period for the completion of an investigation or to make a decision on the merits.
Are there any other regulated anticompetitive practices not mentioned above? Provide details.
Article 2, paragraph (9) of the AMA and the Designation of Unfair Trade Practices specify a variety of anticompetitive conducts as ‘unfair trade practices’, some of which have a feature of vertical arrangements.
For details of unfair trade practices, see question 19.
Are there any proposals for competition law reform in your jurisdiction? If yes, what effects will it have on the company’s compliance?
There are two major reform proposals (or potential reform proposals) for the AMA.
First is the introduction of the commitment procedure. Under the procedure, the JFTC’s investigation may be terminated without issuing any cease and desist order or surcharge order when an investigated company voluntary proposes effective remedies to the JFTC and the JFTC approves them. Though the act that introduces this procedure has already been enacted, it would only come into force once the TPP comes into effect for Japan, as this procedure was introduced as a compliance measure for the TPP. It is expected that the act would come into effect within a year, as the TPP has been signed again by 11 countries in March 2018 upon the withdrawal of the United States. This procedure could provide another option for a company to seek reasonable solution in the JFTC’s investigation.
Second is the introduction of the discretionary surcharge payment system. Currently the amount of administrative surcharge that the JFTC may impose on a company violating the AMA is statutorily defined in the AMA and the JFTC has no flexibility. To increase administrative flexibility and companies’ incentive to cooperate with the JFTC’s investigation, discussion on the introduction of the discretionary surcharge payment system was conducted in the ‘Study Group on the AMA’ (a study group that the JFTC set up). Though whether, when and what kind of the system is introduced is not yet clear at this stage, some sort of proposal may be made in the near future. Once the amended administrative surcharge payment system is introduced, the JFTC may take enforcement action more flexibly.
Updates and trends
Updates and trends
Updates and trends
On 15 February 2018, the Competition Policy Research Centre of the JFTC published a Report of Study Group on Human Resource and Competition Policy. The Study Group was established to sort out the views on applications of the AMA to competition for human resources to facilitate a pleasant environment for individual workers. The report discusses applications of the AMA to concerted practice and unilateral conduct of contracting parties (employers) and shows some examples of activities that are undesirable from a viewpoint of competition policy. Though the report has not induced any enforcement actions so far, it may trigger the JFTC’s detailed review on anticompetitive practices relevant to human resource matters.