Agreement between the European Community and the Government of Japan concerning cooperation on anti-competitive activities - Agreed minute
Date: 2003-07-10
Institutions: European Community, Japan
Subjects: Japan, competition law, cooperation agreement (EU), restriction on competition

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between the European Community and the Government of Japan concerning cooperation on anti-
competitive activities

AGREEMENT

THE EUROPEAN COMMUNITY,

of the one part, and

THE GOVERNMENT OF JAPAN,

of the other part

(hereinafter referred to as ‘the Parties’)

RECOGNISING that the world's economies, including those of the European Community and Japan, are becoming
increasingly interrelated,

NOTING that the sound and effective enforcement of competition laws of the European Community and Japan respec-
tively is a matter of importance to the efficient functioning of their respective markets and to trade between them,

NOTING that the sound and effective enforcement of competition laws of the European Community and Japan respec-
tively would be enhanced by cooperation and, where appropriate, coordination between the Parties in the application of
those laws,

NOTING that from time to time differences may arise between the Parties concerning the application of the competition
laws of the European Community and Japan respectively,

NOTING their commitment to give careful consideration to the important interests of each Party in the application of
the competition laws of the European Community and Japan respectively (hereinafter referred to as the ‘competition
laws of each Party’), and

HAVING REGARD to the recommendation of the Council of the Organisation for Economic Cooperation and Develop-
ment concerning cooperation between Member Countries on anti-competitive practices affecting international trade, as
revised July 27 and 28, 1995, and to the Recommendation of the Council of the Organisation for Economic Coopera-
tion and Development concerning effective action against hard core cartels adopted on March 25 1998,

HAVE AGREED AS FOLLOWS:

Article 1

1.
The purpose of this Agreement is to contribute to the
effective enforcement of the competition laws of each Party
through promoting cooperation and coordination between the
competition authorities of the Parties and to avoid or lessen the
possibility of conflicts between the Parties in all matters
pertaining to the application of the competition laws of each
Party.

authority of a Member State before this authority is
included in the list notified by the Commission to the
Government of Japan;

(c) the terms ‘competition authority’ and ‘competition authori-

ties’ mean:

(i) for the European Community, the Commission of the
responsibilities
the European

to the competition laws of

European Communities,
pursuant
Community; and

to its

as

2.

For the purposes of this Agreement:

(ii) for Japan, the Fair Trade Commission;

(a) the term ‘anti-competitive activities’ means any conduct or
transaction that may be subject to sanctions or other relief
under the competition laws of the European Community or
Japan;

(b) the term ‘competent authority of a Member State’ means
one authority for each Member State mentioned in Article
299(1) of the Treaty establishing the European Community
competent for the application of competition laws. Upon
signature of this Agreement a list of such authorities will be
notified by the Commission of the European Communities
to the Government of Japan. The Commission will notify to
the Government of Japan an updated list each time this
to Article
becomes necessary. No information pursuant
to a competent
this Agreement shall be sent
9(6) of

(d) the term ‘competition laws’ means:

(i) for the European Community, Articles 81, 82, and 85
of the Treaty establishing the European Community,
Council Regulation (EEC) No 4064/89 on the control
of concentrations between undertakings, and their
implementing Regulations pursuant to the said Treaty,
as well as any amendments thereto; and

(ii) for Japan, the Law concerning prohibition of private
monopoly and maintenance of fair trade (Law No 54,
1947)
(hereinafter referred to as ‘the Antimonopoly
Law’) and its implementing regulations as well as any
amendments thereto;

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(e) the term ‘enforcement activities’ means any application of
competition laws by way of investigation or proceeding
conducted by the competition authority of a Party.
However, research, studies or surveys with the objective of
examining the general economic situation or general condi-
tions in specific industries are not included. Such research,
studies or surveys shall not be construed so as to include
any investigation with regard to suspected violation of
competition laws;

(f) the term ‘the territory of a Party’, ‘the territory of the Party’
and ‘the territory of the other Party’ means the territory to
which the Treaty establishing the European Community
applies or the territory of Japan, as the context requires;

(g) the term ‘the laws and regulations of a Party’, ‘the laws and
regulations of the Party’ and ‘the laws and regulations of
the other Party’ means the laws and regulations of the
European Community or the laws and regulations of Japan,
as the context requires.

Article 2

1.
The competition authority of each Party shall notify the
competition authority of the other Party with respect to the
enforcement activities that the notifying competition authority
considers may affect the important interests of the other Party.

Enforcement activities that may affect the important inter-

2.
ests of the other Party include those that:

3. Where notification is required pursuant to paragraph 1 of
this Article with respect to mergers or acquisitions, such notifi-
cation shall be given not later than:

(a) in the case of the European Community:

(i) the Decision to initiate proceedings with respect to the
concentration, pursuant to Article 6(1)(c) of Council
Regulation (EEC) No 4064/89; and

(ii) the issuance of a Statement of Objections;

(b) in the case of Japan:

(i) the issuance of request to submit documents, reports or
other information concerning the proposed transaction
pursuant to the Antimonopoly Law; and

(ii) the issuance of a recommendation or the decision to

initiate a hearing.

4. Where notification is required pursuant to paragraph 1 of
this Article with respect to matters other than mergers or
acquisitions, notification shall be given as far in advance of the
following actions as is practically possible:

(a) in the case of the European Community:

(i) the issuance of a Statement of Objections; and

(ii) the adoption of a decision or settlement;

(b) in the case of Japan:

(i) the filing of a criminal accusation;

(ii) the filing of a complaint seeking an urgent injunction;

(iii) the issuance of a recommendation or the decision to

(a) are relevant to enforcement activities of the other Party;

initiate a hearing; and

(b) are against a national or nationals of the other Party (in the
case of the European Community a national or nationals of
the Member States of the European Community), or against
a company or companies incorporated or organised under
the applicable laws and regulations within the territory of
the other Party;

(c) involve anti-competitive activities, other than mergers or
acquisitions, carried out in any substantial part within the
territory of the other Party;

(d) involve a merger or acquisition in which:

(i) one or more of the parties to the transaction; or

(ii) a company controlling one or more of the parties to

the transaction,

is a company incorporated or organised under the applic-
able laws and regulations within the territory of the other
Party;

(e) involve conduct considered by the notifying competition
authority to have been required, encouraged or approved
by the other Party; or

(f) involve the imposition of, or application for, sanctions or
other relief by a competition authority that would require
or prohibit conduct within the territory of the other Party.

(iv) the issuance of a surcharge payment order when no
prior recommendation with respect to the payer has
been issued.

Notifications shall be sufficiently detailed to enable the
5.
notified Party to make an initial evaluation of the effects of the
enforcement activities on its own important interests.

Article 3

1.
The competition authority of each Party shall render
assistance to the competition authority of the other Party in its
enforcement activities to the extent consistent with the laws
and regulations of the Party rendering the assistance and the
important interests of that Party, and within its reasonably
available resources.

2.
The competition authority of each Party shall, to the
extent consistent with the laws and regulations of the Party,
and the important interests of that Party:

(a) inform the competition authority of the other Party with
respect to its enforcement activities involving anti-competi-
tive activities that
the informing competition authority
considers may also have an adverse effect on competition
within the territory of the other Party;

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(b) provide the competition authority of the other Party with
any significant information, within its possession and that
comes to its attention, about anti-competitive activities that
the providing competition authority considers may be rele-
vant
to, or may warrant, enforcement activities by the
competition authority of the other Party; and

(c) provide the competition authority of the other Party, upon
request and in accordance with the provisions of
this
Agreement, with information within its possession that is
relevant to the enforcement activities of the competition
authority of the other Party.

Article 4

1. Where the competition authorities of both Parties are
pursuing enforcement activities with regard to related matters,
they shall consider coordination of their enforcement activities.

In considering whether particular enforcement activities
2.
should be coordinated,
the
Parties should take into account the following factors, among
others:

the competition authorities of

(a) the effect of such coordination on their ability to achieve

the objectives of their enforcement activities;

(b) the relative abilities of the competition authorities of the
Parties to obtain information necessary to conduct
the
enforcement activities;

(c) the extent to which the competition authority of either
Party can secure effective relief against the anti-competitive
activities involved;

(d) the opportunity to make more efficient use of resources;

(e) the possible reduction of cost to the persons subject to the

enforcement activities; and

(f) the potential advantages of coordinated relief to the Parties
and to the persons subject to the enforcement activities.

In any coordinated enforcement activities, the competi-
3.
tion authority of each Party shall seek to conduct its enforce-
ment activities with careful consideration to the objectives of
the enforcement activities by the competition authority of the
other Party.

4. Where the competition authorities of both Parties are
pursuing enforcement activities with regard to related matters,
the competition authority of each Party shall consider, upon
request by the competition authority of the other Party and
where consistent with the important interests of the requested
Party, inquiring whether persons who have provided confiden-
tial information in connection with those enforcement activities
to the sharing of such information with the
will consent
competition authority of the other Party.

Subject

to appropriate notification to the competition
5.
authority of the other Party, the competition authority of either
Party may, at any time, limit or terminate the coordination of
enforcement activities and pursue their enforcement activities
independently.

Article 5

1.
If the competition authority of a Party believes that anti-
competitive activities carried out in the territory of the other
Party adversely affect the important interests of the former
the
Party, such competition authority,
importance of avoiding conflicts regarding jurisdiction and
taking into account that the competition authority of the other
Party may be in a position to conduct more effective enforce-
ment activities with regard to such anti-competitive activities,
may request that the competition authority of the other Party
initiate appropriate enforcement activities.

taking into account

The request shall be as specific as possible about the
2.
nature of the anti-competitive activities and their effect on the
important interests of the Party of the requesting competition
authority, and shall include an offer of such further information
and other cooperation as the requesting competition authority
is able to provide.

The

activities

3.
carefully
requested competition authority shall
consider whether to initiate enforcement activities, or whether
to expand ongoing enforcement activities, with respect to the
anti-competitive
request. The
requested competition authority shall
inform the requesting
competition authority of its decision as soon as practically
possible. If enforcement activities are initiated, the requested
competition authority shall inform the requesting competition
authority of their outcome and, to the extent possible, of signif-
icant interim developments.

identified in the

the
Nothing in this Article limits the discretion of
4.
requested Party's competition authority under its competition
laws and enforcement policies as to whether or not to under-
take enforcement activities with respect to the anti-competitive
activities identified in the request, or precludes the requesting
Party's competition authority from withdrawing its request.

Article 6

1.
The competition authority of each Party shall give careful
consideration to the important interests of the other Party
including
throughout all phases of its enforcement activities,
decisions regarding the initiation of enforcement activities, the
scope of enforcement activities and the nature of sanctions or
other relief sought in each case.

2. When either Party informs the other Party that specific
enforcement activities by the latter Party may affect
the
former's important interests, the latter Party shall endeavour to
provide timely notice of significant developments of such
enforcement activities.

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3. Where either Party considers that enforcement activities
by a Party may adversely affect the important interests of the
other Party, the Parties should consider the following factors, in
addition to any other factor that may be relevant in the circum-
stances in seeking an appropriate accommodation of
the
competing interests:

(a) the relative significance to the anti-competitive activities of
conduct or transactions occurring within the territory of a
Party as compared to conduct or transactions occurring
within the territory of the other Party;

(b) the relative impact of the anti-competitive activities on the

important interests of the respective Parties;

(c) the presence or absence of evidence of an intention on the
part of those engaged in the anti-competitive activities to
affect consumers, suppliers, or competitors within the terri-
tory of the Party conducting the enforcement activities;

(d) the extent to which the anti-competitive activities substan-
tially lessen competition in the market of the European
Community and Japan respectively;

(e) the degree of conflict or consistency between the enforce-
ment activities by a Party and the laws and regulations of
the other Party, or the policies or important interests of
that other Party;

(f) whether private persons, either natural or legal, will be

placed under conflicting requirements by both Parties;

(g) the location of relevant assets and parties to the transac-

tion;

(h) the degree to which effective sanctions or other relief can
be secured by the enforcement activities of the Party against
the anti-competitive activities; and

(i) the extent to which enforcement activities by the other
Party with respect to the same persons, either natural or
legal, would be affected.

Article 7

1.
The Parties may hold, as necessary, consultations through
the diplomatic channel on any matter which may arise in
connection with this Agreement.

A request for consultations under this Article shall be

2.
communicated through the diplomatic channel.

Article 8

The competition authorities of the Parties shall consult
1.
with each other, upon request of either Party's competition
authority, on any matter which may arise in the implementa-
tion of this Agreement.

The competition authorities of the Parties shall meet at

2.
least once a year to:

(a) exchange information on their current enforcement efforts
and priorities in relation to the competition laws of each
Party;

(b) exchange information on economic sectors of common

interest;

(c) discuss policy changes that they are considering; and

(d) discuss other matters of mutual

interest relating to the

application of the competition laws of each Party.

Article 9

1.
Notwithstanding any other provision of this Agreement,
neither Party is required to communicate information to the
other Party if such communication is prohibited by the laws
and regulations of the Party possessing the information or such
communication would be incompatible with its important
interests.

2.

(a) Information, other than publicly available information,
communicated by a Party to the other Party pursuant to
this Agreement shall only be used by the receiving Party
for the purpose specified in Article 1(1) of this Agree-
ment.

(b) When a Party communicates information in confidence
under this Agreement, the receiving Party shall, consis-
tent with the laws and regulations, maintain its confi-
dentiality.

A Party may require that

information communicated
3.
pursuant to this Agreement be used subject to the terms and
conditions it may specify. The receiving Party shall not use
such information in a manner contrary to such terms and
conditions without the prior consent of the other Party.

4.
Each Party may limit the information it communicates to
the other Party when the latter Party is unable to give the assur-
ance requested by it with respect to confidentiality, with respect
to the terms and conditions it specifies, or with respect to the
limitations of purposes for which the information will be used.

5.
This Article shall not preclude the use or disclosure of
information, other than publicly available information, by the
receiving Party to the extent that:

(a) the Party providing the information has given its prior

consent to such use or disclosure, or

(b) there is an obligation to do so under the laws and regula-
tions of the Party receiving the information. In such case,
the receiving Party:

(i) shall not take any action which may result in a legal
obligation to make available to a third party or other
authorities
confidence
pursuant to this Agreement without the prior consent
of the Party providing the information;

information

provided

in

(ii) shall, wherever possible, give advance notice of any
such use or disclosure to the Party which provided the
information and, upon request, consult with the other
Party and give due consideration to its important inter-
ests; and

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(iii) shall, unless otherwise agreed by the Party which
provided the information, use all available measures
under the applicable laws and regulations to maintain
the confidentiality of information as regards applica-
tions by a third party or other authorities for disclosure
of the information concerned.

6.

The competition authority of the European Community,

(a) after notice to the Japanese competition authority, will
inform the competent authorities of the Member State or
Member States whose important interests are affected of
the notifications sent to it by the Japanese competition
authority;

(b) after consultation with the Japanese competition authority,
will inform the competent authorities of such Member State
or Member States of any cooperation and coordination of
enforcement activities; and

(c) shall ensure that information, other than publicly available
information, communicated to the competent authorities of
the Member State or Member States pursuant to subpara-
graphs (a) and (b) above shall not be used for any purpose
other than the one specified in Article 1(1) of this Agree-
ment, as well as that such information shall not be
disclosed.

Nothing in this Agreement shall prevent the Parties from
3.
seeking or providing assistance to one another pursuant to
other bilateral or multilateral agreements or arrangements
between the Parties.

Nothing in this Agreement shall be construed to prejudice
4.
the policy or legal position of either Party regarding any issue
related to jurisdiction.

5.
Nothing in this Agreement shall be construed to affect
the rights and obligations of either Party under other interna-
tional agreements or under the laws of the European Commu-
nity or Japan.

Article 11

Unless otherwise provided in this Agreement, communications
under this Agreement may be directly carried out between the
competition authorities of
the Parties. Notifications under
Article 1(2)(b), Article 2 and requests under Article 5(1) of this
Agreement, however, shall be confirmed in writing through the
diplomatic channel. The confirmation shall be made as
promptly as practically possible after
the communication
concerned between the competition authorities of the Parties.

Article 12

Article 10

This Agreement shall enter into force on the 30th day

1.
after the date of signature.

This Agreement shall be implemented by the Parties in
1.
accordance with the laws and regulations in force in the
European Community and Japan respectively and within the
available resources of their respective competition authorities.

This Agreement shall remain in force until 60 days after
2.
the date on which either Party notifies the other Party in
writing through the diplomatic channel that it wishes to termi-
nate the Agreement.

Detailed arrangements to implement this Agreement may

2.
be made between the competition authorities of the Parties.

The Parties shall review the operation of this Agreement

3.
not more than five years from the date of its entry into force.

IN WITNESS WHEREOF, the undersigned, being duly authorised, have signed this Agreement.

DONE at Brussels in duplicate, on this tenth day of July,
in the Danish, Dutch, English,
Finnish, French, German, Greek, Italian, Portuguese, Spanish, Swedish and Japanese languages.
In case of divergence the English and Japanese texts shall prevail over the other language
texts.

FOR THE EUROPEAN COMMUNITY:

FOR THE GOVERNMENT OF JAPAN:

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AGREED MINUTES

The undersigned wish to record the following understanding which they have reached during the negotia-
tion of the Agreement between the European Community and the Government of Japan concerning coop-
eration on anti-competitive activities (hereinafter referred to as the ‘Agreement’) signed today:

Both Parties confirm their understanding that:
1. the Government of Japan is not required to communicate to the European Community under the
Agreement
the Law
‘trade secrets of entrepreneurs’ covered by the provisions of Article 39 of
concerning prohibition of private monopoly and maintenance of fair trade (Law No 54, 1947), except
for those communicated with the consent of the entrepreneurs concerned and in accordance with the
provisions of Article 4(4) of the Agreement; and

2. the European Community is not required to communicate to the Government of Japan under the
Agreement confidential information covered by Article 20 of Regulation 17/62, except for the informa-
tion communicated in accordance with the provisions of Article 4(4) of the Agreement.

Brussels, 10 July, 2003

FOR THE EUROPEAN COMMUNITY:

FOR THE GOVERNMENT OF JAPAN: