2019 was a busy year for the Japan Fair Trade Commission (JFTC).
Cartel enforcement under the Act on Prohibition of Private Monopolisation and Maintenance of Fair Trade (AMA) continues to be a key priority for the agency, particularly against domestic price fixing cartels across various industry sectors.
Sector scrutiny including public utilities like energy and agriculture continued, though the standout actions were in connection with businesses operating in digital and data-driven markets. A number of IT firms were subject to JFTC enforcement for alleged unfair trade practices, including abuse of a superior bargaining position and restrictive conditions. Of particular note, a first commitment application was submitted by Rakuten and approved by the JFTC in connection with an investigation into alleged illegal MFN clauses imposed by online travel agencies in agreements with business partners.
Merger control enforcement remained relatively constant. The number of notifications stayed steady, including in respect of transactions involving foreign companies. Cases reviewed in Phase II continue to be limited, though remedies were imposed in multiple cases. There were a number of key policy changes however, including the release of the JFTC's revised 'Merger Review Guidelines'2 and 'Merger Review Procedure Policies',3 which were both aimed at the adequate review of M&A transactions relating to the digital sector as well as other sectors.
Other noteworthy policy developments include amendments to the AMA to strengthen the JFTC's enforcement power, including reform of leniency regimes, which passed the Diet last year. At the same time attorney–client privilege limited to cartel investigations was determined to be introduced under the JFTC regulations and guidelines. As part of the Japanese government's trans-agency efforts to promote competition/innovation in digital markets, the JFTC conducted multiple market inquiries and issued Guidelines on Abuse of a Superior Bargaining Position in Digital Platforms.4
Cartels and bid-rigging, still amongst the JFTC's top priorities, are prohibited by the AMA under the category of 'Unreasonable Restraint of Trade'.
The JFTC may issue a cease and desist order or a surcharge payment order, or both, by way of administrative sanctions for violations of the AMA, including the violation of 'Unreasonable Restraint of Trade'. Cease and desist orders aim to stop illegal acts, restore an appropriate competitive environment, and prevent a recurrence of such violations of the AMA by ordering the relevant party or parties to cease the actions in question and to take preventive measures. In addition to cease and desist orders, surcharges may be imposed in cases involving cartels and bid-rigging.
In 2019, the JFTC issued cease and desist orders for seven cartel cases. The total amount of surcharges imposed was approximately ¥69.3 billion, significantly higher compared to aggregate penalties in recent years (¥2.2 billion in 2018 and ¥7.5 billion in 2017). This is partly due to the record-breaking surcharge imposed in the asphalt cartel case, discussed further below.
The JFTC has a policy to seek criminal penalties in cases that: (1) it considers serious, having a widespread impact on consumer welfare; and (2) involve firms or industries that are repeat offenders, or who have not complied with administrative measures issued by the JFTC.5 The JFTC did not file any criminal charges in 2019. Court procedure continues for Taisei Corporation and Kajima Corporation with regard to the JFTC's 2018 criminal accusation for bid-rigging in the magnetic-levitation train project.
In 2019, cease and desist and surcharge payment orders in cartel and bid-rigging cases were issued only for conduct related to domestic markets. The authority, however, maintains a close relationship with competition agencies in other jurisdictions in respect of international cartels.
i Significant cases
Cartel by Manufacturers of Asphalt Mixture6
On 30 July 2019, the JFTC imposed a record-breaking surcharge totalling ¥39.9 billion against eight manufacturers of asphalt mixture.
Nine Japanese manufacturers of asphalt mixtures – Maeda Road Construction Co, Ltd., Taisei Rotec Co, Ltd., Kajimaroad Co, Ltd., Obayashi Road Corporation, Seikitokyu Kogyo, Gaeart and Toa Road Corporation, The Nippon Road Co, Ltd., and Nippo Corporation (the Nine Manufacturers) – had held nine-company meetings (the Nine-Company Meetings) to exchange information regarding trends in prices of petroleum asphalt and material for asphalt mixture, as well as regarding plans to raise prices. According to the JFTC's findings, by March 2011, the Nine Manufacturers had agreed to collude to raise prices. The conduct by the Nine Manufacturers had affected reconstruction work after the great earthquake of March 2011.
Based on the agreement, the Nine Manufactures discussed whether to further raise prices and, if they were raising prices, when and how much the raise will be. The Nine Manufacturers then instructed factory managers to negotiate the price raise based on this consensus. The branch offices and the factory managers of the Nine Manufacturers in each region confirmed the content of the consensus among each other and exchanged information regarding the price raise, while making adjustments depending on the situation in each region. To further assure the effectiveness of the agreement, the Nine Manufacturers: (1) disclosed to each other their production volumes to check if no member was increasing sales volume and selling at a low price; (2) visited factories that had not yet implemented the price raise for further instructions; and (3) chose not to record the minutes of the Nine-Company Meetings or marked some of the related documents as 'Done/for disposal' to prevent the agreement from being discovered.
Since the total production volume of the Nine Manufacturers exceeded 50 per cent of the total domestic production volume of asphalt mixture, the JFTC had no trouble concluding that competition in the market was restricted and that the agreement constituted an 'Unreasonable Restraint of Trade' (i.e., cartel) under the AMA.
Nippo Corporation was exempted from surcharges under the leniency system. The Nippon Road Co, Ltd. was granted a 50 per cent reduction in surcharges, and Maeda Road Construction Co, Ltd., Seikitokyu Kogyo and Gaeart were granted a 30 per cent reduction. With the exception of Nippo Corporation and Nippon Road Co, Ltd., cease and desist orders were issued to the manufacturers since they did not cease their illegal behaviours at their own initiative.
This decision by the JFTC on the amount of surcharge in this case is said to have been affected by the revisions made to the AMA in June 2019. Under the amended AMA, repeat offenders will not be imposed with an increased surcharge if they cease illegal behaviour before an order is issued by the JFTC. The Nine Manufacturers could have been issued a surcharge 1.5 times higher, had the bill not been passed by the National Diet one month prior to the JFTC's order.
Cartel by manufacturers of Cornstarch for Corrugated Paper
In September 2019, the JFTC hearing court handed down a decision denying the surcharge order against Kato Kagaku Co, Ltd (Kato Kagaku) and dismissing claims by Oji Cornstarch Co, Ltd and J-Oils Mills, Inc (together with Kato Kagaku, the 'Respondents') in relation to the orders made by the JFTC against the Respondents in July 2013.
The Respondents and three other companies were found to have taken part in a cartel to fix the price of cornstarch for corrugated paper in the Japanese market in accordance with corn prices on the Chicago Board of Trade (CBOT). The JFTC imposed a surcharge of ¥69 million on Oji Cornstarch Co, Ltd., ¥54.3 million on J-Oils Mills and ¥41.2 million on Kato Kagaku.
The decision by the JFTC hearing court to deny the surcharge order against Kato Kagaku was made for several reasons. Kato Kagaku was not present in the meeting where the price-fixing agreement was made. Although there were some others who were not also present at the meeting, there was insufficient evidence that Kato Kagaku expressed its intention to participate in the cartel: an employee of Kato Kagaku had responded 'We won't hold you back' when informed of the agreement to fix prices after the meeting took place. While Kato Kagaku did raise prices at the same time as the members of the cartel, the JFTC hearing court found that Kato Kagaku may not have acknowledged the agreement, since it had, among other things, negotiated for a different increase in price.
ii Trends, developments and strategies
Overview of amendments to the AMA
The surcharge system in Japan, introduced in 1977 as an administrative sanction, aims to prevent violations of the AMA by imposing financial penalties for violations. While it has been amended several times since its introduction, increasing globalisation and complexity of business structures have led the JFTC to conduct a further review of the current surcharge system.
In 2016, the JFTC established a Study Group on the AMA with the objective of re-evaluating and addressing issues with the surcharge system, which issued its report7 in April 2017. The inflexibility of surcharge calculation methods and the lack of sufficient incentives for businesses to cooperate in JFTC investigations were flagged as the main problems. By 2018, following a public consultation in mid 2017 on the issues raised in the report, the JFTC had begun to prepare a proposed bill to amend the AMA. The submission of the bill was however postponed after the governing political party, the Liberal Democratic Party (LDP), sought further discussions on the introduction of attorney–client privilege, a concept not previously recognised in Japanese law.
On 19 June 2019, the National Diet passed the bill amending the AMA.8 The bill included the revised leniency programme based on the level of a company's cooperation with the JFTC's investigations as well as a revised surcharge calculation method. In addition to these amendments, the new attorney–client privilege will be introduced under the JFTC regulations and guidelines.
Revised leniency programme/surcharge system and introduction of attorney–client privilege
Under the new surcharge system, a company can be exempted from multiplied surcharge due to recidivism if it ceases its illegal behaviour before the JFTC issues an order.
In accordance with the new leniency programme, the JFTC will have discretion to increase the reduction of surcharge amounts by up to 40 per cent (20 per cent for applicants after the commencement of investigation), depending on the level of the company's cooperation with JFTC's investigation in addition to the base rate. The base rate of reduction has changed from 50 per cent to 20 per cent for applicants second in line, and from 30 per cent to 10 per cent for those third to fifth in line. Applicants beyond sixth in line who currently have no incentive to apply for leniency will also be able to apply for the 5 per cent reduction as the base rate after the enforcement of the amendment. The immunity granted to the first applicant prior to the initial investigation is unchanged. The amendment in relation to the new leniency programme is expected to be enforced by the end of 2020.
The newly established attorney–client privilege will apply to administrative investigation procedures against 'Unreasonable Restraint of Trade' (i.e., cartels and bid-rigging). Documents containing communication between a company and its external attorney (in some cases, a qualified in-house lawyer) regarding legal opinions on cartel or bid-rigging conduct cannot be accessed by JFTC's investigators. However, documents that existed before consultation with the attorney or preliminary documents explaining the facts to be provided to the attorney would be excluded from privilege. The details of procedures and scope of communications between a company and its attorney covered by the privilege will be determined in JFTC guidelines, which are expected to be published in the summer of 2020.
III ANTITRUST: RESTRICTIVE AGREEMENTS AND DOMINANCE
The JFTC took notable enforcement action in a number of non-cartel cases, namely those involving unfair trade practices, such as resale price maintenance (RPM) as well as abuse of superior bargaining position, particularly in the IT and digital sectors.
With regard to RPM, the JFTC issued cease and desist orders in July 20199 to two manufacturers of baby products, including baby strollers, car seats, and carriers. One manufacturer requested that retailers sell their products at the recommended resale price (RRP), or it would otherwise cease product supply to non-compliant retailers. The other supplied only to the retailers who agreed to sell them at a price indicated by the manufacturer. Both sets of conduct were deemed as RPM, a violation of the AMA, which enables the JFTC to issue a cease and desist order for the first violation. If the RPM conduct is repeated by the same company within 10 years, a surcharge may be imposed, though the JFTC has yet to do so with respect of RPM.
The JFTC has expressed strong concerns about major companies in the IT sector, as well as online platforms' activities. Investigations in this sector included probes into the use of parity clauses and MFNs by Rakuten, Expedia and Booking.com, as well as alleged conduct by Amazon on suspicion of infringing the AMA by abusing a superior bargaining position.
i Significant cases
Commitments accepted from Rakuten in respect of certain MFN and parity clauses
The JFTC's investigation into online travel booking company, Rakuten, was the first Japanese case closed under the Commitment Procedures, which were introduced in December 2018 under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.
In April 2019, the JFTC raided Rakuten, Expedia and Booking.com on the suspicion that these online travel booking companies have imposed anticompetitive MFN clauses in their contracts with accommodation operators such as hotels and the JFTC's investigations against these three companies started. After Rakuten proposed commitments to resolve antitrust issues subjected to the JFTC's investigation, the JFTC approved Rakuten's proposed commitment plan to resolve its concerns and concluded the investigation against the company.10
The commitments proposed by Rakuten included the elimination of the alleged anticompetitive clauses and the cessation of imposing such restrictions for three years. Having accepted the commitment plan, the JFTC did not determine whether the MFN clauses imposed by Rakuten was an infringement of the AMA and accordingly no sanctions, including cease and desist orders, were imposed on Rakuten.
The investigations against Expedia and Booking.com remain ongoing.
Decision regarding Qualcomm's 3G licences
Competition authorities in several jurisdictions, including the US and China, has found some of Qualcomm's licensing practices to be anticompetitive. In Japan, the JFTC reached a different conclusion.
The JFTC issued a cease and desist order to the US-based semiconductor and telecommunications equipment manufacturer back in September 2009, for anticompetitive licence agreements with Japanese mobile phone manufacturers in relation to the 3G telecommunication standard. Specifically, the JFTC decided that the royalty-free licensing clause and non-assertion of patent provision (NAP) were deemed as restrictive conditions,11 which is a type of unfair trade practice prohibited by the AMA. Qualcomm challenged the JFTC's decision and the JFTC hearing court revoked a previous decision in March 2019.
The hearing court ruled that the clauses regarding royalty-free licensing and NAP were considered a form of cross licensing, which was legal in principle. It also concluded that the JFTC investigators did not show sufficient evidence to prove that the alleged clauses would hamper fair competition.
ii Trends, developments and strategies
Framework for assessing competition issues arising from business alliances
Business alliances are widely utilised as a means of business strategy to address various issues including business efficiency and innovation by realising prompt business operation and cost saving. Recently, business alliances have been implemented not only between competitors or trade partners, but also among companies in different sectors or industries, for example between an automotive manufacturer and a telecommunication company.
The Study Group on Business Alliances, established by the JFTC's Competition Policy Research Centre (CPRC), issued a report in July 201912 compiling the authority's past statements on business alliances13 and presenting a general framework for competition assessment of the market effects from these joint activities based on recent JFTC practices. The report acknowledges that business alliances generally have pro-competitive effects and at the same time may also raise competition issues in a relevant market. Specific issues on each of seven types of business alliances (i.e., business alliances regarding production, sales, purchasing, logistics, R&D, technological and standardisation) are addressed respectively in the report.
In addition, the report addresses such specific issues as data accumulation and sharing in respect of data-related business alliances. Though the report raises no new theories of harm, this comprehensive document is a helpful resource for companies that collaborate on activities like production, sales, marketing, purchasing, logistics and R&D, whether privately with competitors/trade partners or on an industry or cross-sector basis.
Regulatory developments affecting digital markets
Close scrutiny of this sector is likely to continue in 2020. To facilitate competition and innovation in line with rapid changes in digital markets and implement competition policy effectively in this sector, the Japanese government commenced discussions around digital market regulation. In accordance with this government initiative, the JFTC conducted a survey in 2019 on digital platform trade practices (i.e., business-to-business transactions on online retail platforms and app stores), the results of which form the basis for the preparation of new law in relation to platform businesses. The JFTC has also addressed issues specific to digital markets in its recently published Guidelines on Abuse of a Superior Bargaining Position in Digital Platform Businesses as well as Merger Review Guidelines and Merger Review Procedure Policies (discussed further below).
Bill for the Act on Enhancement of Transparency and Fairness of Specified Digital Platforms
Based on the survey on digital platform trade practices, the JFTC came out with a report14 in October 2019 highlighting various issues affecting platform operators and their users, including: (1) unilateral changes to contractual terms and conditions; (2) lack of transparency for refusing transactions and in the use of transaction data; and (3) unfair treatment of customer complaints. To address these issues, the Japanese government has been considering legislation to ensure that digital platforms are operated in a fair and transparent manner. A direction of the Digital Platformer Transaction Transparency Bill was disclosed and submitted for a public consultation process in December 2019. Based on the results, a bill for the Act on Enhancement of Transparency and Fairness of Specified Digital Platforms was approved by the Cabinet on 18 February 2020 and is scheduled to be submitted to the ongoing ordinary session of the Diet in 2020. According to the Bill, only a limited number of digital platforms called 'Specified DPFs' will be subjected to regulation due to the heightened necessity of ensuring that these platforms are operated with transparency and fairness. More concretely, only large-scale online mall operators and app stores will be initially defined as specified DPFs, based on certain criteria, such as the total amount of sales and the number of users. Specified DPFs will be required to disclose the terms and conditions of their contracts with users and to provide prior notice of revisions to these terms and conditions. They will also be required to take other measures, including the establishment of procedures and administrative organs in accordance with the policies promulgated by the relevant ministry. Specified DPFs will also be required to submit to the ministry regular reports on the status of their implementation of the above measures, which it will then use to review and assess conduct.
Guidelines on Abuse of a Superior Bargaining Position in Digital Platform Businesses
Consumers provide personal data to digital platform operators when using operators' services. Concern has been mounting that both the means by which digital platform operators obtain consumer data and the manner in which they use it constitute abuses of the operators' superior bargaining positions under the AMA.
Abuse of a superior bargaining position under the AMA has traditionally been found only in B-to-B transactions and it had been unclear whether this type of conduct is prohibited in B-to-C transactions.
The JFTC considered whether problematic conduct by digital platform operators vis-à-vis consumers constituted abuse of a superior bargaining position. After a public consultation process, it announced the Guidelines on Abuse of a Superior Bargaining Position in Digital Platform Businesses in December 2019.15
According to the Guidelines, where a consumer has no choice but to accept terms and conditions offered by a digital platform operator that are disadvantageous to the consumer, the digital platform operator is considered to occupy a superior bargaining position. More specifically, a digital platform operator will be found to occupy a superior bargaining position where: (1) no alternative platform that provides a service equivalent to the operator's is available; (2) it is difficult for consumers to terminate use of a service provided by the operator; or (3) the operator has some discretion to unilaterally determine the terms and conditions of transactions, including the price, quality, and quantity of goods or services. Further, the Guidelines specify certain types of abusive conduct in terms of unjustifiable acquisition and unjustifiable use of personal information, including: (1) acquiring personal information without notifying consumers of the purpose of its use; (2) acquiring personal information against consumers' wishes that exceeds the scope necessary to achieve the purpose of its use; and (3) using personal information without taking necessary and appropriate precautions to ensure its safe management.
IV SECTORAL COMPETITION: MARKET INVESTIGATIONS AND REGULATED INDUSTRIES
i Significant cases
Credit card market
Cashless payments are encouraged by the Japanese government,and the amount of payments using credit cards continue to increase. The JFTC recently conducted a survey on the credit card market to consider competition law issues arising out of business practices in this sector. A questionnaire was sent to five international credit card brands (i.e., payment network operators, such as VISA, Mastercard and American Express), more than 200 card issuers and 2000 merchants, some of whom were interviewed by the JFTC. An online survey was also conducted with 2,000 customers. After the year-long survey, the JFTC published its report in March 2019,16 which focused on transactions between payment network operators and credit card companies that are card issuers or acquirers.
The JFTC found that some payment network operators are likely to be in a superior bargaining position over credit card companies. The result of the survey showed that over 70 per cent of the credit card companies that responded to the survey gained 60 per cent of their transaction value from transactions with a particular payment network operator, and over 80 per cent of them considered it would be difficult or impracticable to change the payment network operators. Based on these circumstances, the JFTC considers that the credit card companies would be unable to avoid accepting disadvantageous requests from payment network operators because the termination of the contract with a particular payment network operator may lead to significant problems for the credit card companies' business.
Given this finding, the report identified the potential violations of the AMA as abuse of superior bargaining position in relation to unilateral revision of contract contents and bearing of expenses involved with the mandatory embedding of contactless payment chips. Other unfair trade practices considered to be potential violations were discussed in the context of prohibitions against embedding multiple contactless payment chips, most favoured nation clauses, dynamic currency conversion services and interchange fees.
This survey is considered as the one of the JFTC's actions concerning platform operators. The JFTC will continue to monitor the anticompetitive practices in this sector, and major payment network operators in particularly should deal cautiously with credit card companies in Japan to avoid antitrust scrutiny.
ii Trends, developments and strategies
The JFTC continues close scrutiny in digital markets as mentioned above. Currently, the JFTC is conducting several surveys and market research operations in relation to the digital market, including the digital advertising market.
In addition to digital markets, the JFTC is also monitoring other sectors that it has concerns about and will conduct any survey or market research on these sectors if necessary.
V MERGER REVIEW
The number of merger filings with the JFTC has been relatively stable with a slight increase as compared to the immediately preceding year. From April 2018 to March 2019 (FY 2019), the JFTC accepted 321 notifications, of which 315 were cleared in Phase I (including 240 with early termination), two were brought into Phase II and four were voluntarily withdrawn by the parties. From the standpoint of competitive landscape between the parties, 179 involved horizontal overlaps and 129 involved vertical relationships.
Effective use of pre-notification consultation with the JFTC has been one of the keys to the high rate of Phase I clearance. Parties may benefit from informal discussion with the authority during the pre-notification phase, which often extends to substantive competition issues. Sometimes the parties discuss and agree on remedies with an aim to obtain conditional clearance during Phase I.
The JFTC has also been keen to employ economic analysis in complex cases. Out of 13 decisions published by the authority as notable ones during FY 2019, four involved the use of economic analysis.
i Significant cases
Takeda Pharmaceutical's acquisition of Shire
The JFTC unconditionally cleared Takeda Pharmaceutical's acquisition of Shire upon careful scrutiny of the parties' actual and potential horizontal overlaps.
Following the recent practice, the authority defined the relevant product markets in accordance with ATC level 3 and 4 categories, and especially focused on intestinal anti-inflammatory agents (A7E) with distinction of intestinal aminosalicylate products (A7E1) and intestinal corticosteroid products (A7E2). Distinction was also made between existing low molecular pharmaceuticals and new biopharmaceuticals in view of the difference in medicinal properties and functional mechanism.
For the existing low molecular pharmaceuticals, Takeda competes with a third party to which Shire grants licence of the overlapping product. The JFTC did not recognise it as horizontal overlap because the acquisition would not change competitive landscape as the licence agreement would survive. For the new biopharmaceuticals, the authority scrutinised the parties' potential horizontal overlap, which was concluded as not problematic on the grounds that (1) Shire's product has been developed for the US and European markets but not for Japan, hence the overlap is less obvious; and (2) there exist a number of competing products, which are under development and would likely create competitive pressure to the parties.
M3's acquisition of Nihon Ultmarc
The JFTC concluded, on 24 October 2019, that M3's acquisition of Nihon Ultmarc would not substantially restrain competition on the condition that the parties implement the proposed remedies. While the filing thresholds were not met, the authority raised concerns and reviewed the transaction that was closed on 1 April 2019.
M3, the acquirer, operates online platforms that provide information on pharmaceuticals to doctors (Pharmaceuticals Information Platform), while Nihon Ultmarc, the target, provides a database of medical institutions and healthcare professionals (Medical Information Database). The latter service constitutes essential input of the former service, and the parties may provide both services in a bundled manner. In view of these vertical and conglomerate relationships, as well as the parties' position in the relevant markets (i.e., both are No. 1 players and no comparable competitor exists), the JFTC raised concerns and sought the following remedies: (1) the parties will not refuse to provide Medical Information Database service to their competitors, and will not provide these services under discriminatory conditions; (2) Nihon Ultmarc will not disclose the confidential information of its customers (i.e., M3's competitors) to M3; (3) the parties will refrain from tying these services; and (4) the parties will make annual reporting to the authority for the period of five years.
ii Trends, developments and strategies
Amendment to the guidelines
On 17 December 2019, the JFTC published the amendment to the Guidelines to Application of the Antimonopoly Act Concerning Review of Business Combination (the Merger Review Guidelines) and the Policies Concerning Procedures of Review of Business Combination (the Merger Review Procedure Policies).
The amendment primarily focuses on the effective review of M&As that involve digital markets. In context of market definition, for example, the amended Merger Review Guidelines gives consideration to the characteristics of digital services such as: (1) multisided markets where a platform serves as intermediary of multiple customer segments and generates strong network effects; (2) quality-oriented competitions (as compared to price-oriented); and (3) sub-segment of services by reference to functions, sound/video qualities, communication speed, security level, etc. Assessment of anticompetitive effect should also be adjusted to address R&D overlaps, multisided markets, network effects, importance of data in digital services.
Amendment to the Merger Review Procedure Policies includes introduction of the value-based threshold that triggers voluntary consultation. Under this new rule, parties to a transaction valued at more than ¥40 billion are recommended to consult with the authority if it is likely to affect domestic customers (e.g., target either has domestic locations, business operations targeting domestic customers or domestic turnover exceeding ¥100 million).
Exemption for regional banks and bus operators
With the expected decrease of Japanese population and other economic circumstances as backgrounds, M&As are considered important and effective options for regional players to survive but their relatively high market share in specific regions may lead the transactions to the JFTC's in-depth review.
In order to facilitate this momentum, on 3 March 2020 the Cabinet adopted the bill that exempts mergers and joint operations between regional banks and bus operators from the merger control regulation, on the conditions that (1) the parties would be difficult to survive without the proposed merger or joint operation; and (2) there is no concern that the parties would unreasonably increase the interest rates or prices.
Competent regulatory authority and the JFTC will jointly review the eligibility for the exemption, and also monitor the parties' behaviours post-transaction. The exemption will last for 10 years from the effective date.
With the amended Merger Review Guidelines and Merger Review Procedure Policies, the JFTC is expected to make thorough assessment on the growing number of M&As that involve digital markets. The Japanese government expects that the Diet will enact the proposed exemption for regional banks and bus operators during the current ordinary session, and put it into force by the end of 2020.
Under the leadership of Commissioner Kazuyuki Sugimoto and his successor, the focus on cartel and merger control enforcement and on various industry sectors is expected to continue in 2020. In particular, the JFTC has expanded its budget and capacity to strengthen enforcement in digital markets.
The JFTC is also expected to issue further key reports and statements of new policy. In relation to rule-making around digital platforms, the JFTC will likely increase enforcement in this area under new proposed legislation concerning the transparency and improvements in fairness for digital platform operators that will be submitted to the Diet.
Implementation of the reformed leniency regime and newly introduced attorney–client privilege system will be designed later this year, details of which should be closely monitored.
1 Junya Ae is a partner, Michio Suzuki is a senior associate and Ryo Yamaguchi and Lisa Nagao are associates at Baker & McKenzie (Gaikokuho Joint Enterprise).
2 Guidelines to Application of the Antimonopoly Act Concerning Review of Business Combination, JFTC, published on 17 December 2019. See https://www.jftc.go.jp/en/legislation_gls/imonopoly_guidelines_files/191217GL.pdf.
3 Policies Concerning Procedures of Review of Business Combination, JFTC, published on 17 December 2019. See https://www.jftc.go.jp/en/legislation_gls/imonopoly_guidelines_files/191217policy.pdf.
4 Guidelines Concerning Abuse of a Superior Bargaining Position in Transactions between Digital Platform Operators and Consumers that Provide Personal Information, JFTC, published on 17 December 2019. See https://www.jftc.go.jp/en/legislation_gls/imonopoly_guidelines_files/191217DPconsumerGL.pdf.
5 'The Fair Trade Commission's Policy on Criminal Accusation and Compulsory Investigation of Criminal Cases Regarding Antimonopoly Violations', the JFTC, revised 23 October 2009, p. 1.
6 See JFTC press release of 30 July 2019 (https://www.jftc.go.jp/en/pressreleases/yearly-2019/July/190730.html).
7 'Report of the Study Group on the Antimonopoly Act', published on 25 April 2017. See the JFTC press release of 25 April 2017 (https://www.jftc.go.jp/en/pressreleases/yearly-2017/April/170425.html).
8 See the JFTC press release of 19 June 2019 (https://www.jftc.go.jp/en/pressreleases/yearly-2019/June/19061907.html).
9 See JFTC press release of 1 July 2019 (https://www.jftc.go.jp/en/pressreleases/yearly-2019/July/190701.html) and of 24 July 2019 (https://www.jftc.go.jp/en/pressreleases/yearly-2019/July/190724.html).
10 See JFTC press release of 25 October 2019 (https://www.jftc.go.jp/en/pressreleases/yearly-2019/October/191025.html).
11 With regard to 'restrictive conditions as unfair trade practices', the JFTC may issue a cease and desist order for this type of unfair trade practice, but it cannot impose surcharges.
12 See JFTC press release of 10 July 2019 (https://www.jftc.go.jp/en/pressreleases/yearly-2019/July/190710.html).
13 The JFTC had indicated its views in relation to business alliances in several guidelines, including guidance on merger review, joint R&D and intellectual property or consultation cases announced on its website.
14 See JFTC press release of 31 October 2019 (https://www.jftc.go.jp/en/pressreleases/yearly-2019/October/191031.html).
15 See JFTC press release of 17 December 2019 (https://www.jftc.go.jp/en/pressreleases/yearly-2019/December/191217_DP.html).
16 See JFTC press release of 13 March 2019 (https://www.jftc.go.jp/en/pressreleases/yearly-2019/March/190313.html).