JAPANOverview
Setsuko Yufu, Tatsuo Yamashima, Saori Hanada and Masayuki Matsuura
Atsumi & Sakai

The Japan Enforcement Agency

The substantive provisions of Japan’s competition
rules are contained in the Antimonopoly Act of Japan(AMA). The Japan Fair Trade Commission (JFTC) is
the principal enforcement agency – it was established
as an independent administrative office with broad
enforcement powers and is composed of a chairman
and four commissioners. The AMA comprises four
major categories of regulations:•	the prohibition of unreasonable restraint of trade(eg, cartels and bid rigging);• the prohibition of private monopolisation;• the prohibition of unfair trade practices; and•	regulations on business combination (eg, via mergers and acquisitions).
The JFTC is the sole enforcement agency, except in
the case of criminal investigations where the publicprosecutor’s office is in charge of criminal prosecutions
upon the JFTC’s submission of a criminal accusation to
the prosecutor general.
Recent developments
Cartels

The JFTC issued formal administrative orders (ceaseand-desist and surcharge orders) for four cartel orbid-rigging cases in 2015. Each of these four cases arerelevant to the Japanese domestic market only. The
amount of surcharges levied in cartel cases is calculated
as the base rate (which is basically 10 per cent but differs
according to conditions, increased to 15 per cent if any
cartel activity is repeated within 10 years of an earlier
finding of a breach in respect of the same matter) of thesales amount of the relevant products or services by theparty fined for the period of infringement, extending
up to three years from the date such conduct ceased.
Surcharges imposed for cartel or bid-rigging conduct,
as well as abuse of superior bargaining position,
totalled ¥17.1 billion in the 2014 fiscal year (ending 31
March 2015).
Regarding criminal investigations, the JFTC founda criminal violation of the AMA in the bearings cartel
case and filed criminal accusations with the prosecutor
general in June 2012 against three companies, as well as
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seven individuals of the three companies accused. No
criminal accusations were filed against the immunity
applicant company and its employees. By February
2013, two companies and five individuals were convicted. A trial went on in relation to one company andtwo individuals who pleaded not guilty, but all of themwere also convicted in February 2015. The company
reportedly appealed the judgment immediately.
The JFTC also opened its investigation into theHokuriku Shinkansen bid-rigging case in September
2013. In March 2014, criminal accusations were filed
against eight equipment companies and eight individuals, and by 15 November 2014 all the defendant companies and individuals were convicted. Penalties varyingfrom ¥120 million to ¥160 million were imposed onthe defendant companies. In addition to criminal
sanctions, in October 2015, the JFTC levied a total of¥1.03 billion in surcharges against seven companies.
In 2015, no new criminal accusation was filed with theprosecutor general by the JFTC.
The JFTC has reiterated its policy of continuing
tough, high-impact enforcements, as well as strengthening cooperation with foreign authorities for thepurpose of deterring infringements. The JFTC hasentered into bilateral cooperation agreements withthe competition authorities of the United States, theEuropean Union and Canada. In addition, in 2015 theJFTC executed a memorandum of understanding with
the National Development and Reform Commission inChina. Also in 2015, the JFTC executed a Cooperation
Agreement with the Australian Competition andConsumer Commission based on the free trade agreement between Australia and Japan. This agreement is
the first second-generation agreement for the JFTC witha foreign authority. Under these agreements, various
levels of information exchanges and discussions can bemade between the participating authorities. The JFTC
is entitled to exchange information with other authorities as well, based on conditions set out in the AMA.
LeniencyIn 2014, 61 leniency filings were made. According
to a JFTC press release, leniency applicants received
immunity or a reduction in surcharges in four out of1

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seven cartel cases in which the JFTC issued a formal
administrative order in the 2014 fiscal year.
Under the leniency programme in Japan, amaximum of five companies (or groups of companies)
will be granted immunity from, or a reduction of,surcharges by identifying the alleged facts in detailand submitting relevant evidence. The first applicant tocome forward before the start of a JFTC investigation
is granted full immunity, the second is granted a 50per cent reduction, and the third, fourth and fifth aregranted a 30 per cent reduction. Any applicants after
the start of a JFTC investigation are granted the same
30 per cent reduction. The JFTC has no discretion in
determining the order of leniency applicants or thepercentage of reduction granted for cooperation.
Private monopolisation

In January 2015, the JFTC issued a cease-anddesist order against JA Fukui Prefectural Economic
Federation of Agricultural Cooperatives for privatemonopolisation by controlling business activitiesof other entrepreneurs (Private Monopolisation byControl) because it controlled the bids for facilities
for drying, husking and storage of grains in the Fukui
prefecture area through designating successful bidders.
Although the calculation method for surcharge amountlevied in Private Monopolisation by Control cases are
the same as cartel cases under the AMA, no surcharge
was imposed in this case since no relevant sales amount
had been generated by the violator. This is the first casein 17 years where the JFTC issued a formal administrative order against Private Monopolisation by Control.
Unfair trade practices

As to abuse of superior bargaining position, which isprohibited as an unfair trade practice under the AMA,
no new order was issued by the JFTC in 2015. Since theenforcement of amendments to the AMA commenced
in January 2010 that subjected abusers of a superiorbargaining position to a surcharge, there have been fivecases where a surcharge order was imposed and all cases
were appealed. In June 2015, the decision was madeon an appeal that partly annulled the cease-and-desist
order and surcharge order against Toys“R”Us-Japan inDecember 2011 and reduced the amount of surcharge
from ¥369 million to ¥222 million. This is the first decision on an appeal among the five cases appealed. Thebase rate for calculating the amount of surcharges forthe abuse of a superior market position is 1 per cent of
the sales amount of the relevant products for the periodof infringement, extending up to three years from thedate such conduct ceased.
2Mergers

The total number of merger notifications for the2014 fiscal year was 289. The JFTC cleared 275 cases
without Phase II review, and among those the 30-daywaiting period, where the notified transaction shallnot be closed, was shortened in 119 cases. Among the289 cases, only three transitioned to Phase II review(including Zimmer/Biomet and Oji Holdings/Chuetsu
Pulp & Paper), all of which were cleared subject toconditions. There were no formal prohibition decisions
in the 2014 fiscal year.
Mergers, business transfers, corporate splits (ordemergers), joint share transfers and share acquisitions(including joint ventures) are subject to prior notification under the AMA if they exceed certain thresholds.
Amendments to the AMA, which became effective inJanuary 2010, have introduced mandatory notificationof foreign-to-foreign mergers between undertakingsthat have no Japanese subsidiary or branch office inJapan but that have substantial domestic turnover inJapan. In 2015, in the case of Zimmer, Inc and Biomet,
Inc, both US companies, the JFTC exchanged the relevant information with the European Commission andthe US Federal Trade Commission, respectively.
Enforcement of the 2013 AMA Amendment andamendments of Guidelines

Under the 2013 AMA Amendment, effective on 1 April
2015, parties dissatisfied with the JFTC’s administrative orders are able to appeal the orders to the Tokyo
district court instead of requesting the JFTC hearings.
In relation to this amendment, for the purposes of
keeping investigation procedure transparent andshowing the JFTC officials a model investigation procedure, the JFTC published the Guidelines Relating tothe Investigation Procedure under AMA in December
2015. In March 2015, the JFTC amended a part of
the Guidelines Concerning Distribution System andBusiness Practices for the purpose of clarificationof the criteria for the JFTC judgment on illegality ofvertical conduct and the justifiable reasons for resale
price maintenance. In addition, in December 2015, theJFTC published the draft partial amendment of theGuidelines for the Use of Intellectual Property underAMA. This amendment is to clarify the JFTC policy
in case of litigation for suspension of use of standard
essential patent brought by the holder of such patent.
The amendment became effective in January 2016.

The Handbook of Competition Enforcement Agencies 2016

JAPANSetsuko Yufu
Atsumi & Sakai

Setsuko Yufu is a senior partner at Atsumi & Sakai,with more than 30 years’ experience in cross-bordertransactions and corporate practice, including antitrustand competition law. She is especially experienced ininternational cartel investigations and is ranked as aleading individual in relation to antitrust and competition law in the Legal 500 2016 and Chambers AsiaPacific 2016 publications. She is also ranked as ‘Highly
recommended’ in GCR 100 2016. After qualifying at
the Japan Federation of Bar Associations, she studied
at the Europa Instituut in the University of Amsterdam
and worked in a leading global law firm in Brussels
from 1986 to 1987. She serves as a board member ofthe EU Studies Association – Japan and is noted for her
comprehensive knowledge of EU competition law. In
2015 she was elected as a board member of the Japan
Competition Law Forum.

Atsumi & Sakai
Fukoku Seimei Building
2-2-2, Uchisaiwaicho
Chiyoda-ku
Tokyo 100-0011
Japan
Tel: +81 3 5501 2111
Fax: +81 3 5501 2211
Setsuko Yufu
setsuko.yufu@aplaw.jp

Tatsuo Yamashima
Atsumi & Sakai

Tatsuo Yamashima is a partner at Atsumi & Sakai
working primarily in the field of antitrust and competition law, government regulations, employment andhuman resources and other corporate legal affairs.
He has assisted and represented many Japanese andforeign companies with antitrust cases and merger
cases involving the JFTC, as well as authorities in many
foreign jurisdictions. In particular, he has significant
experience with leniency applications for the JFTC. He
is ranked as a leading individual in relation to antitrustand competition law in the Legal 500 Asia-Pacific 2015
and Chambers Asia-Pacific 2016. He is a graduate of
the University of Tokyo (BA, 2002; LLM, 2004) and isadmitted to the Bar in Japan. He worked in Brussels atthe competition law group of a leading global firm in2011 as a visiting foreign attorney.

Atsumi & Sakai was established in 1994 as a boutique firm focusing mainly on financelaw. Since then, the firm has developed and broadened its legal experience in financeas well as a wide range of corporate and dispute resolution disciplines, including
antitrust and competition law, such as cartel investigations and merger controls. The
firm also advises on antitrust and competition law aspects of various transactions,
including licensing, franchise and distributorship arrangements. Recently, Atsumi &Sakai has become increasingly active in the field of international cartel investigations
including private enforcement, extradition issues, and merger controls. Many of
the firm’s junior lawyers have extensive international experience in Asian, EU andAmerican jurisdictions.

Tatsuo Yamashimatatsuo.yamashima@aplaw.jp
Saori Hanada
saori.hanada@aplaw.jp
Masayuki Matsuura
masayuki.matsuura@aplaw.jp
www.aplaw.jp

www.globalcompetitionreview.com

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Saori Hanada
Atsumi & Sakai

Saori Hanada is a partner at Atsumi & Sakai working in
the field of antitrust and competition law, employment
law and other corporate legal affairs. She has advised
major retailers on various unfair trade practice issues
and represented Japanese and foreign companies ininternational cartel cases and merger cases. She wasadmitted to the Japan Federation of Bar Associationsin 2000. She obtained an LLM from Columbia Law
School in 2010 and was admitted to the New York StateBar in 2012.

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Masayuki Matsuura
Atsumi & Sakai

Masayuki Matsuura is a partner at Atsumi & Sakai
working primarily in the field of antitrust and competition law, M&A and other corporate legal affairs. He has
advised and represented Japanese and foreign companies in many international cartel cases and M&A transactions. He worked for the antitrust group of a leading
law firm in Washington D.C. from 2013 to 2014. Heis a graduate of Keio University (BA; 2001) and theUniversity of Southern California Gould School of Law(LLM; Certificate in Business Law; 2013), and admitted in Japan and New York.

The Handbook of Competition Enforcement Agencies 2016