JAPAN Law and Practice Contributed by: Shigeyoshi Ezaki, Vassili Moussis, Yoshiharu Usuki, Takeshi Ishida and Azusa Hongo, Anderson Mori & Tomotsune
authorities where the duties are equivalent to those of the JFTC under Article 43-2 of the AMA. In addition, the JFTC has entered into bilateral co-operation agreements with various competi - tion authorities, including those in the EU, the USA and Canada, as well as the Philippines, Viet - nam, Brazil, Korea, Australia, China, Kenya and Mongolia. These bilateral agreements are mainly focused on general co-operation between the agencies, such as the exchange of information. Disclosure of confidential investigative infor - mation and evidence is a violation of govern - ment officials’ confidentiality obligations and is subject to criminal sanctions under Article 39 of the AMA. During the course of administra - tive (as opposed to criminal) procedures, JFTC officials cannot therefore exchange information (for example, business secrets of the companies under investigation) without prior permission or waivers to do so from the companies in ques - tion. However, when examining leniency applica - tions, it is understood that the JFTC exchanges confidential information (including the contents of the applications) with foreign competition authorities but only after obtaining a waiver to do so from the applicant. 4.6 Issuing Criminal Indictments As mentioned in 4.4 Domestic Inter-Agency Co- Operation , criminal actions can only be brought against companies (or their officers and employ - ees) by the JFTC after filing a criminal accusation with the Public Prosecutor’s Office. The JFTC states that it will actively seek criminal penalties if it believes that administrative sanctions are not sufficient to fulfil the purpose of the AMA in cer - tain cases, including: • serious cases of “unreasonable restraint of trade” (including cartel conduct) considered
likely to have a widespread influence on peo - ple’s living; and • cases involving firms or industries that the JFTC deems “repeat offenders” or that do not comply with enforcement measures previ - ously imposed. In practice, the JFTC generally tends to decide at the initial stage whether it is going to deal with the cartel in question as an administrative or criminal case. For example, companies faced with “dawn raids” can identify whether the alle - gation is likely to be dealt with via administra - tive or criminal proceedings through the notifica - tions delivered by the investigator at the on-site inspection. Once the JFTC has filed a criminal accusation with the Public Prosecutor’s Office and normally very soon after the filing, the Public Prosecutor’s Office can file an indictment for cartels with the Tokyo District Court or other district courts under Articles 84-3, 84-4 and 89 of the AMA. The Pub - lic Prosecutor’s Office is responsible for proving facts that constitute cartel conduct before the court and the court is the ultimate finder of facts. As with other criminal trials, following the indict - ment, a defendant has the right to access evi - dence upon which the Prosecutor’s Office relies in terms of the allegation, although there is no guarantee that a defendant can access poten - tially relevant information held by third parties. 4.7 Issuing Civil Complaints Administrative trials are discussed here and pri - vate actions are covered in 6.1 Private Rights of Action . The JFTC issues a cease-and-desist order and/or a surcharge payment order under Articles 7 and 7-2 of the AMA when it proves a cartel activity allegation. The process for a cease-and-desist order or a surcharge payment order was amended as of 1 April 2015, as part of
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