JAPAN Law and Practice Contributed by: Shigeyoshi Ezaki, Vassili Moussis, Yoshiharu Usuki, Takeshi Ishida and Azusa Hongo, Anderson Mori & Tomotsune
7-4, paragraph 1 of the AMA). The leniency measures available to subsequent applicants for leniency depend on whether the company files its application with the JFTC before or after the Investigation Start Date. Before the Investigation Start Date, the second applicant will obtain a surcharge reduction of 20% to 60%, depending on the extent of co- operation with the JFTC. The third, fourth and fifth applicants will also be eligible for a surcharge reduction, but the reduction will vary from 10% to 50% depending on the extent of co-operation with the JFTC. The sixth or later applicants will also be eligible for a surcharge reduction of 5% to 45%, depending on the extent of their co- operation with the JFTC. After the Investigation Start Date, up to three leni - ency applicants will obtain a surcharge reduction of 10% to 30%, depending on the extent of their co-operation with the JFTC, provided that the number of applicants in total (including those who applied before the Investigation Start Date) is five or fewer. The leniency applicants follow - ing the applicants indicated in this category will obtain a surcharge reduction of between 5% and 25%, depending on the extent of their co- operation with the JFTC (there is no limit to the number of applicants that can apply for this level The AMA does not provide a formal amnesty regime. There is therefore no applicable amnes - ty regime (including an amnesty plus regime) in Japan. However, it is noteworthy that the JFTC published The Fair Trade Commission’s Policy on Criminal Accusation and Compulsory Inves - tigation of Criminal Cases Regarding Antimo - nopoly Violations in October 2005, which were then revised in October 2009. The guidelines of surcharge reduction). 3.2 Amnesty/Immunity
regarding criminal enforcement confirm that the JFTC’s policy is not to bring criminal actions against the first leniency applicant and its co- operating officers or employees. 3.3 Whistle-Blowers The AMA does not provide for a whistle-blower regime. However, current and former employees and officers at a company who report a violation by the company that is subject to criminal sanc - tions are protected by the Whistleblower Pro - tection Act. For example, dismissal and other disadvantageous treatments against them due to the report are prohibited under the AMA. The JFTC also encourages companies to intro - duce an internal leniency programme so as an employee who engages in cartel conduct but then blows the whistle on cartel conduct that took place in their company may be exempt from disciplinary action. This is aimed at facilitating the detection of cartels. 4. Procedural Framework for Cartel Enforcement 4.1 Obtaining Evidence From Employees Although the JFTC usually seeks any documents from the company being investigated, investiga - tors sometimes ask current and former employ - ees suspected of cartel activity to submit any materials, even personal belongings such as notebooks, planners and mobile phones, in their possession at the time (eg, during an interview). 4.2 Obtaining Documentary Evidence From Subject/Target Companies The JFTC usually contacts the legal department of the company when it asks it to voluntarily sub - mit additional materials that the JFTC considers necessary to prove the allegations in the course
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