Answer ... Between April 2018 and March 2019, the Japan Fair Trade Commission (JFTC) issued seven cease and desist orders and imposed administrative surcharges of JPY 261.1 million in relation to cartel cases. The number of cease and desist orders issued was at a similar level as compared to the past few years. However, the amount of administrative surcharges imposed was at its lowest level since the leniency programme was introduced in 2006.

That said, as the amount of administrative surcharges imposed can fluctuate significantly, depending on the nature and extent of the violation, the low level of administrative surcharges imposed should not be construed as an indication that the JFTC has become less active in cartel enforcement.

In terms of new developments, on 19 June 2019 a bill to amend the Act on Prohibition of Private Monopolisation and Maintenance of Fair Trade (AMA) passed the Diet. The main amendments are as follows.

Leniency programme:

• The upper limit on the number of leniency applicants (currently five) will be abolished.
• In the case of leniency applications filed prior to commencement of a JFTC investigation, leniency applicants will receive the following reductions:
• • First applicant: full exemption.
  • Second applicant: 20% reduction plus additional reduction of up to 40% (depending on the degree of cooperation with the JFTC investigation).
  • Third to fifth applicants: 10% reduction plus additional reduction of up to 40% (depending on the degree of cooperation with the JFTC investigation).
  • Sixth and subsequent applicants: 5% reduction plus additional reduction of up to 40% (depending on the degree of cooperation with the JFTC investigation).
• In the case of leniency applications filed after commencement of the JFTC investigation, the leniency applicants will receive the following reductions:
• • Up to three applicants (where the total number of leniency applicants, both before and after such investigation, is five or fewer): 10% reduction plus additional reduction of up to 20% (depending on the degree of cooperation with the JFTC investigation).
  • All other applicants: 5% reduction plus additional reduction of up to 20% (depending on the degree of cooperation with the JFTC investigation).

Administrative surcharges:

• The maximum period of implementation subject to an administrative surcharge order will be extended to 10 years (currently three years).
• The statute of limitations to issue administrative surcharge orders will be extended to seven years (currently five years) from the end of the period of implementation.
• The calculation rates by type of business (ie, manufacturers, wholesalers or retailers) will be abolished.

Timeframe for implementation: The amendments will come into effect on a date specified by cabinet order within a period not exceeding 18 months from the date of promulgation of the bill (26 June 2019). In addition, with the aim of making the new leniency programme more effective, the JFTC plans to introduce a (partial) attorney-client privilege regime, which will be implemented as of the date on which the amended AMA takes effect (see question 3.7).