JAPAN Law and Practice Contributed by: Shigeyoshi Ezaki, Vassili Moussis, Yoshiharu Usuki, Takeshi Ishida and Azusa Hongo, Anderson Mori & Tomotsune
7.6 “No Poach” and Labour Market Allocation Conduct Although the AMA does not apply to matters regulated under the labour laws, issues such as “no poach” agreements and labour market allo - cations can raise a competition concern under the AMA. Despite publishing a study report relat - ed to these issues a few years ago and express - ing an interest in the issues raised, the JFTC has not actively been investigating them. 7.7 Leniency v Ex Officio Investigations The JFTC publishes a statistical report regarding its enforcement of violations of the AMA annu - ally. According to these reports the number of leniency applications from companies sharply decreased during the COVID-19 pandemic from 2020 to 2022. Ex officio investigations are not very common as companies being investigated usually co-oper - ate with the JFTC by submitting factual evidence with the objective of obtaining leniency. 7.8 Domestic v International Investigations As described in 1.8 Enforcement Priorities , most of the cartels investigated by the JFTC are domestic cartels. 7.9 Environmental, Social and Governance (ESG) Cartels In April 2024, the JFTC revised the Guidelines Concerning the Activities of Enterprises, etc. Toward the Realisation of a Green Society Under the Antimonopoly Act, which were origi - nally published in March 2023. It amended the Guidelines after consulting with enterprises and reviewing comments from the public. The Guidelines specify three review frame - works for the JFTC in terms of joint activities
However, the discussion paper did not raise a specific concern about the use of generative AI. The JFTC requested information and opinions from a diverse audience to enable it to analyse the market further and present its views from the competition policy perspective, as necessary. 7.3 Monopolisation as a Cartel Offence Under the AMA, if a company holding a domi - nant position in a market controls and restricts business activities of other companies by direct - ing price, supply quantity and customers of their business, the act may constitute a violation of the AMA. This is because “private monopoly” and “unreasonable restraint of trade” , which pro - hibits a cartel conduct under the AMA, share the same objective of prohibiting acts which may substantially restrict competition in the market. 7.4 Focus on Certain Industries/Sectors The JFTC has frequently stated that it keeps a close eye on any anti-competitive behaviour in the market related to digital platform busi - nesses. It has actually taken unilateral enforce - ment action against violations. However, when it comes to cartel enforcement, it has not shown interest in any specific industries or sectors. 7.5 Use of Messaging Applications and Chat Platforms As explained in 1.8 Enforcement Priorities , most cartel investigations are triggered by companies submitting factual evidence in pursuit of lenien - cy. Companies usually continue to co-operate with the JFTC during its investigation. Loss of evidence is therefore not a typical issue and the JFTC has not published any guidance regarding the preservation of transient communications.
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