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Non- Discretionary Administrative Sanctions under the AMA in Japan

Non- Discretionary Administrative Sanctions under the AMA in Japan. Takujiro Kono Senior Investigator, Investigation Bureau Japan Fair Trade Commission. ICN CWG SG1 3 rd call series Tuesday, 10 February. Administrative Measures. Dual Sanctioning System under the AMA.

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Non- Discretionary Administrative Sanctions under the AMA in Japan

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  1. Non-Discretionary Administrative Sanctions under the AMA in Japan Takujiro Kono Senior Investigator, Investigation Bureau Japan Fair Trade Commission ICN CWG SG1 3rd call series Tuesday, 10 February

  2. Administrative Measures Dual Sanctioning System under the AMA Administrative procedure ･Indirect compulsory investigation ･Aiming at administrative measures(cease and desist order & surcharge payment order) ・Surcharge payment order ・Ceaseand desist order Hardcore Cartel Administrative procedure or Criminal procedure ? Worthy of Accusation After criminal Accusation Companies Criminal procedure ･Compulsory investigation with court permit ･Aiming at criminal accusation Indictment ・Criminal penalty Individuals Criminal Accusation Public Prosecutors Office (PPO) <Policy Statement> The JFTC will actively accuse･･･ ･　Vicious and serious cases which have a significant adverse impact on the public ･　Repeat offenders Butthe first leniency applicantwould not be accused. -PPO can’t indict without JFTC’s accusation -Consultation between JFTC and PPO

  3. Characteristics of Non-Discretionary Administrative Sanctions

  4. Comparison of Administrative Surcharges and Criminal Fines in Real Cases • Since surcharges are calculated automatically, the amount of surcharges can be far larger than that of fines.

  5. No Discretion in JFTC Surcharge Q: Is it possible to abstain from Imposing surcharges? A: JFTC has no discretion to abstain from impose surcharges. Q: What is the basis for the calculation? Are indirect sales counted/considered to prevent under-deterrence? A: Surcharges are calculated fromthe cartelized sales amounts during the period of violation (Max 3 years) multiplied by calculation rates. Indirect sales are out of the basis of the calculation. Q: Is it possible to reduce surcharges, depending on the degree of cooperation? A: JFTC has no discretion to take into account the degree of cooperation of company in setting surcharges. Under the leniency program, fixed rate reduction is available for leniency applicants who meet the conditions of the program; but JFTC has no discretion to evaluate the degree of cooperation and the value of evidence submitted in the leniency program. Q: Is it possible to reduce surcharges, depending on sanctions already imposed by another agency to prevent over-deterrence? A: JFTC is not allowed totake into account sanctions imposed by another agency, except for corporate criminal fines imposed by domestic court decisions.

  6. Thank you for your attention !

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