Cartels 2025

JAPAN Law and Practice Contributed by: Shigeyoshi Ezaki, Vassili Moussis, Yoshiharu Usuki, Takeshi Ishida and Azusa Hongo, Anderson Mori & Tomotsune

amount can be increased by up to 50% under Article 7-3 (1) and (2) of the AMA. If the company is both “repeat offender” and took a leading role, the total surcharge amount can then be doubled under Article 7-3, paragraph 3 of the AMA. The JFTC does not have discretion to increase the surcharge amount as a result of the level of co-operation provided by the company in ques - tion. However, the JFTC has limited discretion to reduce the amount of the surcharge for leniency applicants, depending on the level of co-oper - ation. As regards this reduction rule, the JFTC published Guidelines to the Reduction System for Co-operation in Investigation in December 2020. The Guidelines aim to improve the predict - ability and transparency of the JFTC’s assess - ment of the level of co-operation offered by the leniency applicant. 5.6 Relevance of Effective Compliance Programmes For criminal sanctions, courts, as opposed to the JFTC, have discretion to decide the amount of criminal fines imposed on a company when cal - culating the surcharge amount under the AMA. An “effective compliance programme” that is pri - marily put in place to prevent the violation from recurring after the company found a violation could be considered as an extenuating circum - stance by the court when it decides the amount of criminal fines. As noted in 5.5 History of Criminal Sanctions , the JFTC does not have any discretion when it comes to the amount of surcharges imposed on cartel participants. An effective compliance pro - gramme is therefore not taken into account when imposing administrative fines on companies that participate in cartels. The JFTC instead seems keen to determine whether the companies being investigated performed an effective compliance

programme throughout the entire investigation. Accordingly, the fact that these companies put an effective compliance programme in place could affect the decision as to whether they would be required to conduct additional com - pliance efforts as part of the cease-and-desist order. 5.7 Mandatory Consumer Redress There is no mandatory consumer redress system under the AMA. Victims of cartels therefore need to take legal action, including private litigation such as a damage claim, against the companies involved in the cartels if they want redress. 5.8 Judicial Review or Appeal As mentioned in 4.7 Issuing Civil Complaints , appeals against the JFTC’s cease-and-desist orders and surcharge payment orders are heard by the commercial affairs division of the Tokyo District Court. Until 1 April 2015, if a company wanted to challenge a cease-and-desist order and/or an order imposing a fine issued by the JFTC, it had to file an appeal before the JFTC first. The JFTC would then open an internal hear - ing procedure to determine the legality of the order. If the company was still not satisfied with the decision, it could then file a petition for the annulment of the decision before the Tokyo High Court. However, there was a rule to the effect that facts established by the JFTC through the hearing pro - cedure would, if based on substantial evidence, be binding upon the appeal court. Under the cur - rent system, this substantial evidence rule has been abolished. Furthermore, any evidence that the company wishes to present can be offered to the Tokyo District Court, including new evidence. In practice, it is quite rare that a court overturns all of the JFTC’s decision. That said, there have

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