Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Investigations may be initiated either by a report from the public (Shinkoku report, Article 45(1) of the AMA) or as a result of monitoring from the JFTC or following an application for leniency. Reports submitted by the public play a key role in enforcement proceedings and may be submitted by victims of the alleged anticompetitive act in question, general consumers or any other third parties. A R …

Complaints and investigations

Investigations may be initiated either by a report from the public (Shinkoku report, Article 45(1) of the AMA) or as a result of monitoring from the JFTC or following an application for leniency. Reports submitted by the public play a key role in enforcement proceedings and may be submitted by victims of the alleged anticompetitive act in question, general consumers or any other third parties. A Report can take an oral or written form; however, parties have greater chance of triggering an investigation where their Report is substantiated by documentary evidence. The contents of Reports are treated confidentially.

Where a preliminary investigation by the General Secretariat of the JFTC suggests that an investigation is appropriate, the latter appoints investigators (Shinsakan) to conduct an investigation. Investigators have authority to issue a summons requiring parties to appear before them, to carry out interrogations (without the assistance of the undertaking's attorney), request expert advice, require the handing over personal property and to carry out an on-site inspection (Article 47 of the Antimonopoly Act). Undertakings which refuse to comply with the investigation without justifiable reasons may be subject to punishment under Articl 94 of the AMA. Once the investigation is complete, investigators prepare a report and submit it to the JFTC upon finishing the investigation.

On 25 December 2015, the JTFC issued its Guidelines on Administrative Investigation Procedures under the Antimonopoly Act. The document states that on-site inspections may be carried out at the residence of the undertaking's employees where materials related to the alleged infringement are suspected to be and the JTFC's official reasonably considers them necessary for the investigation. In addition, an order to submit materials may be issued regarding items that are “generally considered highly private”, such as personal belongings (day planner, mobile phone, etc.) if such items are suspected to contain information useful to prove the alleged infringement. The order may also cover electronic data stored on a server, client’s PC, etc. (including data such as emails). Under the Guidelines, the JFTC's officer may allow the undertaking's attorney to be present as long as this does not affect the smooth implementation of the on-site inspection. However, the Guidelines point out that the presence of an attorney is not recognized as a right of the undertakings and that the investigator need not delay the start of an on-site inspection until an attorney arrives.

On 2 April 2020, the JFTC released draft guidelines which would introduce client-attorney privilege in Japanese law, in order to enhance the incentives for leniency applications.

Under the Antimonopoly Act (AMA), if the investigations conducted establish a violation thereof, the JFTC can either issue a cease-and-desist order, impose a fine (called a "surcharge") or file an accusation with the Public Prosecutor's Office. 

Before issuing a cease-and-desist order, the JFTC must give the undertakings concerned the opportunity to express their opinion and submit evidence, and then only, issue the order. If the undertakings are dissatisfied with the order, they may request, within sixty days of the servicing of the order, the JFTC to initiate a hearing (Article 49(6)). If no such request is made within the period prescribed, the cease-and-desist order becomes final and binding. Pending the hearing, the JFTC may suspend the execution of all or part of the cease-and-desist order. After the hearing, the JFTC may uphold, rescind or modify its order.

The 2013 Amendment, which came into force in June 2015, significantly altered the hearing procedure to enhance the undertakings' rights of defense. Under the new rules, an independent hearing officer must be designated to conduct the hearings. Both the undertakings and the investigation officers may submit oral explanations and evidence. From the Statement of Objections until the end of the hearing procedure, the undertakings now have a right to full disclosure of evidence gathered against them by the JFTC unless such disclosure is likely to harm the interests of a third party or there are any other justifiable grounds. After the hearings, the hearing officer drafts a report for the JFTC which may only then issue the cease-and-desist order.

An amendment of 30 December 2018 introduced a commitments procedure in the Japanese system, which allows the JFTC and the investigated undertaking to agree to resolve an alleged violation without any admission of guilt or the imposition of a surcharge or cease-and-desist order. On 26 September 2018, the JFTC released guidelines clarifying the scope and functioning of the commitment procedure. The guidelines specify that the commitments procedure is not available for hardcore cartels, criminal infringements and authors of repeat infringements. The commitments may, at the discretion of the JFTC, be market-tested and may consist in the commitment to terminate the conduct, enforce a compliance program, make amendments to restrictive terms and conditions offered to customers, divest businesses, grant financial restitution to victims of practices such as overcharging or bundling. The commitments offered must be suitable to address the JFTC's competition concerns and enforceable. However, the system does not provide for sanctions in case of non-compliance. In that event, the JFTC can only resume proceedings and establish the breach in a proper decision in order to be able to impose surcharges. 

Proceedings before the JFTC

    The JFTC can seek an order of interim relief from the courts in cases where it is urgently necessary to temporarily restrain suspected illegal activity. Urgent necessity will be deemed to exist where competition is being damaged and the harm will be difficult to remedy if allowed to continue until the moment a final decision is to be taken.      

Global Competition Law

1048. Complaints and investigations

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Les notions juridiques connexes

1048. Complaints and investigations

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise