Immunity & Sanctions

Last verified on Sunday 24th May 2020

Immunity & Sanctions: Japan

Hideto Ishida and Yuhki Tanaka

Anderson Mōri & Tomotsune

Immunity or a 100 per cent reduction in sanctions

1. What benefits are available to the first applicant to qualify?

Japan

First of all, it should be noted that in Japan the leniency programme is established only for cartel enforcement.

Under this leniency programme, the first applicant to come forward before a dawn raid is fully exempted from administrative surcharge, which is the most significant sanction against cartels in Japan, unless it provides false information to, or refuses to cooperate in, investigations by the Japan Fair Trade Commission (the JFTC), the principal enforcement agency of the Antimonopoly Act in Japan.

Furthermore, the first applicant before a dawn raid is also effectively exempted from criminal sanctions. Under the Antimonopoly Act of Japan, the effect of the leniency programme extends only to administrative surcharge, but not to criminal sanctions. However, according to the policy statement of the JFTC, no criminal accusation will be made by the JFTC against the first applicant before a dawn raid. As the Ministry of Justice (MOJ) also made the official statement in the Diet that it will honour the JFTC’s judgment of making no criminal accusation, it means in practice that the first applicant before a dawn raid is effectively exempted from any criminal sanctions against cartels.

As to civil sanctions, no effect will be provided by leniency application, even by the first application before a raid.

Answer contributed by Hideto Ishida and Yuhki Tanaka

2. Do the protections extend to current and former officers, directors and employees?

Japan

Yes. Under the Antimonopoly Act, the protective effect of the leniency programme will not extend to current and former officers, directors and employees. This is because under the Antimonopoly Act the effect of the leniency programme extends only to administrative surcharge and surcharge payment orders are not addressed to individuals.      

Criminal sanctions, however, are addressed to individuals as well as corporations. According to the policy statement of the JFTC, it will never make any criminal accusation against the first applicant before a dawn raid and furthermore its officers, directors and employees as long as such officers, directors and employees cooperate with the JFTC’s investigation. Such statement can be construed to include former officers, directors and employees of the first applicant before a dawn raid. As the MOJ also made an official statement in the Diet that it will honour the JFTC’s judgment of making no criminal accusation, it means in practice that such officers, directors and employees of the first applicant are also effectively exempted from any criminal sanctions against cartels.

Answer contributed by Hideto Ishida and Yuhki Tanaka

3. Is immunity available after an investigation begins?

Japan

No immunity is available after an investigation begins. The first applicant after a dawn raid is granted only a 30 per cent reduction of administrative surcharge where its application is made by 20 business days after the dawn raid and afforded no exemption from criminal sanctions.

Note that an amendment to administrative surcharge system will be effective by the end of 2020.  Under such amendment, the reduction rate for the first applicant after a dawn raid will be granted a 10 per cent fixed reduction and also an additional variable reduction of 20 per cent at maximum depending on the degree of its cooperation with the JFTC.

Answer contributed by Hideto Ishida and Yuhki Tanaka

4. What are the eligibility requirements before an investigation begins?

Japan

Under the leniency programme, leniency applicant must identify the facts of the cartel in detail and submit relevant evidences in accordance with the prescribed procedures.

More specifically, leniency applicant before a dawn raid must first submit to the JFTC an application form named Form 1 by facsimile. Form 1 requires only outlining the relevant cartel, such as the relevant product, the type of cartel conduct (eg, price fixing, bid rigging or market allocation) and the duration of the violation, without attaching any evidence. An applicant who submits Form 1 is granted the status of marker and subsequent applicants basically cannot leapfrog them, unless the preceding applicant fails to secure leniency status, or provides false information to, or refuses to cooperate in, investigations by the JFTC.

To secure leniency status (only conditional on continuing cooperation), such applicant must submit Form 2 thereby providing more detailed information within a period to be designated by the JFTC. Form 2 requires information on the identities of other cartel participants, and the names and titles of individual employees of the applicant and other cartel participants who are involved in the cartel. Form 2 also requires attaching evidence for the relevant cartel, which may include the minutes or note of meetings where the collusion was discussed and formed, or written or oral statements prepared by employees involved in the cartel.

An applicant who has obtained leniency status will be definitively granted immunity if it continues to cooperate with the JFTC until the JFTC issues a cease-and-desist order (or until the JFTC notifies the first applicant of issuing neither cease-and-desist order nor surcharge payment order).

Answer contributed by Hideto Ishida and Yuhki Tanaka

5. What are the eligibility requirements after an investigation begins?

Japan

No immunity is available after an investigation begins.

Note that the first applicant before the dawn raid is still required to cooperate in investigations by the JFTC. If it provides false information to or refuses to cooperate in such investigations by the JFTC, its leniency status will be revoked.

Answer contributed by Hideto Ishida and Yuhki Tanaka

6. Will the applicant have to admit to a violation of law?

Japan

No. In a precise sense, the applicant will have to admit the facts of the cartels, but not have to admit the illegality of the cartels in its leniency application document. The illegality of such cartels is to be determined by the JFTC.

Answer contributed by Hideto Ishida and Yuhki Tanaka

7. Is immunity available to an applicant that admits exchanging commercially sensitive information with a competitor but does not admit entering into an agreement to fix prices or allocate markets?

Japan

Yes in practice because even such information exchange might be deemed as an illegal cartel depending on the situations.

Answer contributed by Hideto Ishida and Yuhki Tanaka

8. Is immunity available to an applicant that admits entering into a vertical price-fixing agreement if that agreement does not also include horizontal collusion?

Japan

No.

Answer contributed by Hideto Ishida and Yuhki Tanaka

9. Is immunity available to an applicant that admits entering into an agreement not to solicit or hire another company's employees ("no-poach" agreements)?

Japan

Not in practice.

Answer contributed by Hideto Ishida and Yuhki Tanaka

10. Are ringleaders or initiators of the conduct eligible?

Japan

Yes. Even ringleaders or initiators of the cartels are eligible for the immunity unless they have forced the other(s) to participate in or hindered the other(s) from leaving the cartels.

Answer contributed by Hideto Ishida and Yuhki Tanaka

11. When must the applicant terminate its involvement in the conduct?

Japan

The applicant before the dawn raid must terminate its involvement in the cartels before the commencement date of the dawn raid.

Answer contributed by Hideto Ishida and Yuhki Tanaka

12. What constitutes termination of the conduct?

Japan

In the context of leniency requirement, adopting a resolution at the board or equivalent to leave the cartels and then notifying the relevant officers and employees to that effect constitutes termination of the cartels. In the other contexts, however, declaring its intent to leave the cartels against other participants is often required to secure the termination of the cartels.

Answer contributed by Hideto Ishida and Yuhki Tanaka

13. Will the applicant be required to make restitution to victims?

Japan

No. Under the leniency programme in Japan, there is no such requirement to be granted immunity. Of course, the first leniency applicant as well as subsequent applicants are subject to civil damage claims.

Answer contributed by Hideto Ishida and Yuhki Tanaka

14. Can more than one applicant qualify for immunity?

Japan

Yes, but only in case of the first application by group filing.

The leniency programme in Japan allows a single joint application by certain group companies involved in the relevant cartel. Such a single joint application enables all group companies named as applicants to be granted the same leniency status. For example, if Company A files a leniency application as first-in but later finds that one of its group companies, Company B, also engaged in the relevant cartels, Companies A and B can jointly file another application upon discovering Company B’s involvement after revoking the original application; however, if another Company C, a company that is a competitor of Companies A and B, files an application as a second-in after Company A’s original application but before the joint application by Companies A and B, then Company A and B will not be granted the leniency status of first-in but will only be granted the status of a second-in while Company C will be granted the leniency status of first-in by virtue of Company A’s revoking the original application. This conclusion leads to considerable differences because only the first-in is granted full immunity, while the second-in is granted only a 50 per cent reduction.    

For the purpose of the leniency programme, a company is considered as a parent company of another when such parent directly or indirectly owns more than 50 per cent of the voting rights in such another (a subsidiary), and the ‘group’ consists of such parent and its subsidiaries.

Answer contributed by Hideto Ishida and Yuhki Tanaka

15. Can an applicant qualify if one of its employees reports the conduct to the authority first?

Japan

Yes. The leniency programme requires an applicant to formally decide a leniency application by itself and then to report the relevant cartels to the JFTC. Note that the first applicant as a corporation can qualify for immunity even after one of its employees reports the cartels to the JFTC first.

Answer contributed by Hideto Ishida and Yuhki Tanaka

16. Does the afforded protection extend to any non-antitrust infringements?

Japan

No. Under the leniency programme in Japan, there is no such extension of the afforded protection to any non-antitrust infringements, as well as to any antitrust infringements that are not included in the scope of the relevant leniency application.

Answer contributed by Hideto Ishida and Yuhki Tanaka

Immunity application and marker process

17. What confidentiality assurances are given to the first applicant to report?

Japan

First of all, it should be noted that under Japanese law there exist no discovery procedures similar to those in the US. In international cartel cases, however, discovery issues would inevitably come with leniency applications even in Japan, especially if such cartel cases are relevant to the US.

The JFTC’s policy regarding discovery requests of leniency applications is that it will never disclose leniency applications (including attached evidences) in its possession to anyone upon any requests from private plaintiffs or courts either in Japan or in foreign jurisdictions.

However, if a leniency applicant has a copy of a written leniency application (including its written evidences), such copy, whether privileged or not, may be subject to discovery. This is because a voluntary submission of privileged documents to third parties, even to public authorities such as the JFTC, may be deemed by the US courts as a waiver of privilege by the applicant.

To avoid this kind of discovery issue (ie, involuntary disclosure of leniency documents from a leniency applicant to foreign plaintiffs, particularly US plaintiffs), the JFTC allows the applicant to make oral leniency applications up to a reasonable extent. More specifically, a substantial part of Form 2 (the follow-up application form to be used before the dawn raid) can be reported orally to the JFTC and thereby no copies with detailed facts remain with the applicant.

Answer contributed by Hideto Ishida and Yuhki Tanaka

18. Does the authority publish guidance regarding the application of the programme?

Japan

Yes. The JFTC publishes the leniency application forms with some guidance in Japanese.

Answer contributed by Hideto Ishida and Yuhki Tanaka

19. Do the rules for obtaining immunity in your jurisdiction conflict with the immunity rules in other jurisdictions?

Japan

As far as we know, there is no such conflict with the immunity rules in other jurisdictions if the leniency application and any statements of applicant’s officers, directors and employees are made orally. See question 17.

Answer contributed by Hideto Ishida and Yuhki Tanaka

20. What is the initial process for making an application?

Japan

The initial process for making a leniency application before the dawn raid involves submitting to the JFTC an application form named ‘Form 1’ by facsimile, thereby securing the status of marker.

Answer contributed by Hideto Ishida and Yuhki Tanaka

21. What information is required to secure a marker?

Japan

Form 1 must be submitted to the JFTC for securing the status of marker.

Form 1 requires only outlining the relevant cartel, such as the relevant product, the type of cartel conduct (eg, price fixing, bid rigging or market allocation) and the duration of the violation, without attaching any evidence.

Answer contributed by Hideto Ishida and Yuhki Tanaka

22. How much time will an applicant have to perfect its marker?

Japan

The JFTC generally designates two weeks as the period to perfect its marker, but may grant a longer period (eg, one month) in cases of complicated cartels or foreign applicants, taking into account the difficulties in communicating internationally and time necessary for translation. (Any leniency application forms and evidence to be attached must be written or orally stated in Japanese.) It should, however, be noted that this "longer period" to be granted by the JFTC in the above-mentioned cases has recently become shorter.

Answer contributed by Hideto Ishida and Yuhki Tanaka

23. Can the deadline for perfecting the marker be extended?

Japan

No. Under the leniency programme, there is no such extension of the deadline. However, unless a subsequent applicant exists, the first applicant in practice may renew its application again after negotiating with the JFTC.

Answer contributed by Hideto Ishida and Yuhki Tanaka

24. What is required to perfect the marker?

Japan

In order to perfect its marker (only conditional on continuing cooperation), an applicant must submit Form 2 in written or oral form thereby providing more detailed information within a period to be designated by the JFTC.

Form 2 requires information on the identities of other cartel participants, and the names and titles of individual employees of the applicant and other cartel participants involved in the cartel. Form 2 also requires attaching evidence for the relevant cartel, which may include the minutes or notes of meetings where the collusion was discussed and formed, or written or oral statements prepared by employees involved in the cartel.

Answer contributed by Hideto Ishida and Yuhki Tanaka

25. Can the scope of the marker be expanded if additional information is discovered by the applicant?

Japan

No. If such information is related to another cartel, one advisable option is to submit a new Forms 1 and 2 to the JFTC for securing the marker with respect to such another cartel. There exists neither an Amnesty-Plus nor Penalty-Plus system under the leniency programme in Japan.

Answer contributed by Hideto Ishida and Yuhki Tanaka

Immunity cooperation obligations

26. Can an applicant lose its marker if a second applicant comes forward with better information?

Japan

No. Under the leniency programme in Japan, subsequent applicants cannot leapfrog the predecessor by providing better information.

Answer contributed by Hideto Ishida and Yuhki Tanaka

27. What if the applicant’s investigation reveals that no violation exists?

Japan

In such case, one option would be withdrawing Form 1 with evidences to show that no violation exists. In practice, however, the applicant usually cannot definitely find whether no violation exists or not (partly because the applicant cannot know what evidence is submitted by subsequent applicants) and thus it will often leave its application as is.

Answer contributed by Hideto Ishida and Yuhki Tanaka

28. What if the authority decides not to investigate?

Japan

In such case, an applicant usually will leave its application as is. This is because it desires to keep the protection under the leniency programme and a possibility remains that the JFTC may change and decide to investigate later if things change.

Answer contributed by Hideto Ishida and Yuhki Tanaka

29. What is the applicant required to produce?

Japan

Under the leniency programme, there is no specific requirement to produce anything for the JFTC’s investigation.

An applicant who has obtained leniency status will be definitively granted immunity if it continues to cooperate with the JFTC until the JFTC issues a cease-and-desist order (or until the JFTC notifies the first applicant of issuing neither cease-and-desist order nor surcharge payment order). Under such duty to continue to cooperate with the JFTC, a leniency applicant may be required by the JFTC to submit additional materials or make additional written or oral statements, and their failure to submit such materials or make additional written or oral statements, or submitting or making false ones, may disqualify them from receiving immunity. In practice, the first applicant will be subject to a barrage of questions from the JFTC during the first few months of its application of Form 2.

Answer contributed by Hideto Ishida and Yuhki Tanaka

30. Will the applicant be required to make a written confession?

Japan

No. Especially in the case of international cartels, its officers, directors or employees involved in the cartels are only required to make oral statements instead of submitting their written statement. See question 17.

Answer contributed by Hideto Ishida and Yuhki Tanaka

31. Can third parties obtain access to the materials provided by the applicant?

Japan

No. See question 17.

Answer contributed by Hideto Ishida and Yuhki Tanaka

Granting immunity

32. Will the applicant lose its protection if one or more of its employees refuses to cooperate?

Japan

No, unless most of its relevant employees refuses to cooperate.

Answer contributed by Hideto Ishida and Yuhki Tanaka

33. Will the applicant lose its protection if one of its employees engages in obstructive conduct before or after the application?

Japan

No, unless most of its employees engage in obstructive conduct, thereby the applicant itself is deemed as refusing to cooperate in investigations by the JFTC.

Answer contributed by Hideto Ishida and Yuhki Tanaka

34. Will the applicant be required to provide materials protected by attorney-client privilege or work-product doctrine?

Japan

In the context of leniency application, any materials are provided to the JFTC on a voluntary basis. The JFTC usually will not request that the applicant provide such materials protected by attorney-client privilege or work–product doctrine in other jurisdictions. (Note that under Japanese law there is no concept of attorney–client privilege or work–product doctrine.) Even if any such request is made by the JFTC, the applicant can refuse to provide materials protected by attorney–client privileges or work–product doctrine in other jurisdictions. In practice, such refusal would not be deemed as ‘refusal’ of cooperation with the JFTC; however, there is a possibility that its refusal to provide most of the relevant materials may be deemed as insufficient cooperation in investigations by the JFTC, which would lead to revocation of its leniency status.

Answer contributed by Hideto Ishida and Yuhki Tanaka

Individual immunity or leniency

35. Does the existence of an effective compliance programme affect whether an applicant meets the eligibility requirements?

Japan

No.

Answer contributed by Hideto Ishida and Yuhki Tanaka

36. Does the authority consider the existence of an effective compliance programme at the time it becomes aware of an infringement when determining the leniency benefits granted?

Japan

No.

Answer contributed by Hideto Ishida and Yuhki Tanaka

37. Will the applicant be required to implement or enhance a compliance programme to obtain leniency benefits?

Japan

No. However, note that such implementation or enhancement will usually be required to avoid any cease-and-desist order from the JFTC.

Answer contributed by Hideto Ishida and Yuhki Tanaka

38. How does the authority announce its promise not to charge or sanction?

Japan

The JFTC will issue a written notice of its commitment to the immunity to the first applicant before the dawn raid.

Answer contributed by Hideto Ishida and Yuhki Tanaka

39. Does the authority put its commitment in writing?

Japan

Yes, in the form of a written notice to the first applicant before the dawn raid.

Answer contributed by Hideto Ishida and Yuhki Tanaka

40. Who is given access to the document?

Japan

No one other than the applicant and the JFTC is given such access, if the leniency application and any statement of its officers, directors and employees are made orally. Please refer to our responses to question 17.

Answer contributed by Hideto Ishida and Yuhki Tanaka

41. Does the authority publish a model letter for conferring immunity?

Japan

There is no such model letter, but such a written notice uses boilerplate language to the effect that the JFTC has decided not to issue any surcharge payment order against the applicant.

Answer contributed by Hideto Ishida and Yuhki Tanaka

42. Is there an individual immunity programme?

Japan

There is no leniency programme for individuals available in Japan. This is because under the Antimonopoly Act the effect of the leniency programme extends only to administrative surcharge, and surcharge payment orders are not addressed to individuals.

Criminal sanctions, however, are addressed to individuals as well as corporations. According to the policy statement of the JFTC, it will never make any criminal accusation against the first applicant before the dawn raid as long as such officers, directors and employees cooperate with the JFTC’s investigation. As the MOJ also made the official statement in the Diet that it will honour the JFTC’s judgment of making no criminal accusation, it means in practice that such individual is effectively exempted from any criminal sanctions against cartels.

Answer contributed by Hideto Ishida and Yuhki Tanaka

43. What is the process for applying?

Japan

Not applicable.

Answer contributed by Hideto Ishida and Yuhki Tanaka

44. What are the criteria for qualifying?

Japan

Not applicable.

Answer contributed by Hideto Ishida and Yuhki Tanaka

Revocation of immunity

45. On what basis can corporate immunity be revoked?

Japan

Even after perfecting the marker, the immunity can be revoked on the following basis, if:

  • false descriptions are found in its leniency application or attached materials;
  • failure to submit additional reports and materials required by the JFTC or false descriptions in such reports and materials are found; or
  • forcing the other(s) to participate in or hindering the other(s) from leaving the cartels is found.

Answer contributed by Hideto Ishida and Yuhki Tanaka

46. When can it be revoked?

Japan

The immunity can be revoked until the JFTC definitively grants the applicant immunity (ie, until the JFTC issues a written notice to the effect that the JFTC has decided not to issue any surcharge payment order against the applicant). See question 38.

Answer contributed by Hideto Ishida and Yuhki Tanaka

47. What notice is required to revoke?

Japan

Under the Antimonopoly Act, revocation itself does not require any notice to the applicant. In the case of revocation, a surcharge payment order will be issued against the applicant. As a matter of practice, however, we assume the JFTC will make certain notice to the applicant before issuing a surcharge payment order.

Answer contributed by Hideto Ishida and Yuhki Tanaka

48. Can the applicant file a judicial challenge to a decision to revoke?

Japan

Yes, the applicant can file a complaint with the Tokyo District Court with respect to the surcharge payment order, especially the issue of whether such revocation is legitimate or not. 

Answer contributed by Hideto Ishida and Yuhki Tanaka

Reduction in sanctions

49. Does the leniency programme allow for reductions in sanctions?

Japan

Yes.

Before a dawn raid, the second applicant to come forward is granted a 50 per cent reduction of administrative surcharge, and the third in, fourth in and fifth in are each granted a 30 per cent reduction.

After a dawn raid, leniency applicants are granted the same 30 per cent reduction of administrative surcharge if they are the fifth or earlier among all applicants before and after the dawn raid, and the third or earlier among all applicants only after the dawn raid.

Note that an amendment to administrative surcharge system will be effective by the end of 2020. Under such amendment, the number of the leniency applicants eligible for administrative surcharge reduction will be no longer limited: more than five leniency applicants also can be eligible for such reduction. Then, the reduction rate for the second or the subordinate applicants will be determined by not only the application order, but also the degree of cooperation with the JFTC to investigate the case. For example, the second applicant will be granted a 20 per cent fixed reduction and also an additional variable reduction of 40 per cent at maximum depending on the degree of its cooperation with the JFTC.

Answer contributed by Hideto Ishida and Yuhki Tanaka

50. What is the process for seeking a reduction in sanctions?

Japan

As to leniency applications before the dawn raid, the same process as that for the immunity shall apply. Please refer to our responses to the questions above related to the immunity.

As to leniency applications after dawn raid, the applicant must submit a ‘Form 3’ to the JFTC within 20 business days after a dawn raid. Form 3 requires detailed information and also evidences to the same extent as Form 2 (the follow-up application form to be used before a dawn raid) does.

Note that the fourth and fifth applicants before a dawn raid and any applicants after a dawn raid are required to provide added-value evidences for the JFTC. In practice, however, such requirement can be easily fulfilled by employees’ written or oral statements including concrete episode descriptions.

Answer contributed by Hideto Ishida and Yuhki Tanaka

51. Is there a marker process similar to immunity applications?

Japan

Yes.

As to leniency applications before a dawn raid, the marker process is the same as that for the immunity. Please refer to our response to question 21.

As to the leniency applications after a dawn raid, the maker process is a little bit tricky. Form 3 (the application form to be used after a dawn raid) seemingly requires detailed information and also evidence to the same extent as Form 2 (follow-up application form to be used before dawn raid) does. It does not, however, mean that Form 3 cannot be submitted to the JFTC until internal investigation has been completed sufficiently to fill out the entire form. Form 3 with less comprehensive information and without attaching evidence is enough for securing the status of marker. Of course, such form must be completed with more detailed information and evidence within 20 business days of the dawn raid in order to secure leniency status. In practice, most seats for leniency become occupied often on the same day as the dawn raid or at the latest by the next day.

Answer contributed by Hideto Ishida and Yuhki Tanaka

52. Are the reductions in sanctions fixed or discretionary?

Japan

Under the Antimonopoly Act, the reduction rates are fixed according to the application order and timing of whether before or after dawn raid (50 per cent or 30 per cent).

An amendment to administrative surcharge system will be effective by the end of 2020. Under such amendment, the number of the leniency applicants eligible for administrative surcharge reduction will be no longer limited: more than five leniency applicants also can be eligible for such reduction. Then, the reduction rate for the second or the subordinate applicants will be determined by not only the application order, but also the degree of cooperation with the JFTC to investigate the case. For example, the second applicant will be granted a 20 per cent fixed reduction and also an additional variable reduction of 40 per cent at maximum depending on the degree of its cooperation with the JFTC.

Answer contributed by Hideto Ishida and Yuhki Tanaka

53. How are the reductions in sanctions calculated?

Japan

The reduction rates are automatically determined according to application order and timing as follows:

  • Before dawn raid, the second applicant to come forward is granted a 50 per cent reduction of administrative surcharge, and the third in, fourth in and fifth in are each granted a 30 per cent reduction; and
  • After the dawn raid, leniency applicants are granted the same 30 per cent reduction of administrative surcharge if they are (i) the fifth or earlier among all the applicants before and after the dawn raid, and (ii) the third or earlier among all the applicants only after the dawn raid.

An amendment to administrative surcharge system will be effective by the end of 2020.  Under such amendment, the number of the leniency applicants eligible for administrative surcharge reduction will be no longer limited: more than five leniency applicants also can be eligible for such reduction. Then, the reduction rate for the second or the subordinate applicants will be determined by not only the application order, but also the degree of cooperation with the JFTC to investigate the case. For example, the second applicant will be granted a 20 per cent fixed reduction and also an additional variable reduction of 40 per cent at maximum depending on the degree of its cooperation with the JFTC.

Answer contributed by Hideto Ishida and Yuhki Tanaka

54. Are there sentencing guidelines?

Japan

No, because the reduction rates are fixed according to application order and timing of whether they are before or after the dawn raid (50 per cent or 30 per cent) under the Antimonopoly Act.

An amendment to administrative surcharge system will be effective by the end of 2020. Under such amendment, the number of the leniency applicants eligible for administrative surcharge reduction will be no longer limited: more than five leniency applicants also can be eligible for such reduction. Then, the reduction rate for the second or the subordinate applicants will be determined by not only the application order, but also the degree of cooperation with the JFTC to investigate the case. For example, the second applicant will be granted a 20 per cent fixed reduction and also an additional variable reduction of 40 per cent at maximum depending on the degree of its cooperation with the JFTC. Sentencing guidelines will be published along with the amendment above to be effective.

Answer contributed by Hideto Ishida and Yuhki Tanaka

Cooperation obligations for sentencing reductions

55. If an applicant's cooperation reveals self-incriminating information that expands the scope of the conduct known to the authority, will that conduct be factored into the fine calculation?

Japan

No.

Under the leniency programme in Japan, the extent of cooperation with the JFTC’s investigations is not supposed to affect the amount of administrative surcharge either upwards or downwards.

If such information is related to another cartel, one advisable option is to submit Forms 1 and 2 to the JFTC with respect to such other cartel.

Futhermore, there is neither an ‘Amnesty-Plus’ nor a ‘Penalty-Plus’ system under the leniency programme in Japan.

An amendment to administrative surcharge system will be effective by the end of 2020. Under such amendment, the number of the leniency applicants eligible for administrative surcharge reduction will be no longer limited: more than five leniency applicants also can be eligible for such reduction. Then, the reduction rate for the second or the subordinate applicants will be determined by not only the application order, but also the degree of cooperation with the JFTC to investigate the case. For example, the second applicant will be granted a 20 per cent fixed reduction and also an additional variable reduction of 40 per cent at maximum depending on the degree of its cooperation with the JFTC.

Answer contributed by Hideto Ishida and Yuhki Tanaka

56. Are there fixed or discretionary discounts for the first applicant to cooperate after the immunity applicant (assuming there is an immunity applicant)?

Japan

The discount rate is fixed as 50 per cent before the dawn raid and as 30 per cent after the dawn raid. Note that the JFTC has no discretion to change the discount rates under the leniency programme in Japan.

An amendment to administrative surcharge system will be effective by the end of 2020. Under such amendment, the number of the leniency applicants eligible for administrative surcharge reduction will be no longer limited: more than five leniency applicants also can be eligible for such reduction. Then, the reduction rate for the second or the subordinate applicants will be determined by not only the application order, but also the degree of cooperation with the JFTC to investigate the case. For example, the second applicant will be granted a 20 per cent fixed reduction and also an additional variable reduction of 40 per cent at maximum depending on the degree of its cooperation with the JFTC.

Answer contributed by Hideto Ishida and Yuhki Tanaka

57. Other than fine reductions, are there additional incentives offered to an applicant that is the first non-immunity applicant?

Japan

No. There are no additional incentives offered to such applicants, even with respect to criminal sanctions.

Answer contributed by Hideto Ishida and Yuhki Tanaka

58. Does the competition authority publish guidance regarding sentencing reductions?

Japan

No. The reduction rates are fixed according to application order and timing of whether before or after the dawn raid (50 per cent or 30 per cent) under the Antimonopoly Act.

An amendment to administrative surcharge system will be effective by the end of 2020. Under such amendment, the number of the leniency applicants eligible for administrative surcharge reduction will be no longer limited: more than five leniency applicants also can be eligible for such reduction. Then, the reduction rate for the second or the subordinate applicants will be determined by not only the application order, but also the degree of cooperation with the JFTC to investigate the case. For example, the second applicant will be granted a 20 per cent fixed reduction and also an additional variable reduction of 40 per cent at maximum depending on the degree of its cooperation with the JFTC. Sentencing guidelines will be published along with the amendment above to be effective.

Answer contributed by Hideto Ishida and Yuhki Tanaka

59. Does the authority provide for "Leniency Plus" benefits?

Japan

No. Under the leniency programme in Japan, there are no ‘Amnesty Plus’ benefits. If any information found after leniency application is related to another cartel, one advisable option is to submit Forms 1 and 2 to the JFTC with respect to such another cartel.

Answer contributed by Hideto Ishida and Yuhki Tanaka

60. How is the Leniency Plus discount calculated?

Japan

Not applicable.

Answer contributed by Hideto Ishida and Yuhki Tanaka

61. Are the cooperation obligations similar to those for immunity applicants?

Japan

Yes, the same obligations as those for immunity applicant shall apply. Please refer to our response to question 29.

Answer contributed by Hideto Ishida and Yuhki Tanaka

62. Will the applicant be required to make a written confession?

Japan

No. In particular in the case of international cartels, the applicant’s officers, directors or employees involved in the cartels are only required to make oral statements, instead of submitting their written statement. It is the same as for immunity. See question 30.

Answer contributed by Hideto Ishida and Yuhki Tanaka

63. Can third parties obtain access to the materials provided by the applicant?

Japan

No. See question 17. It is the same as for the immunity.

Answer contributed by Hideto Ishida and Yuhki Tanaka

64. Will an applicant qualify for sentencing reductions if one or more of its employees refuse to cooperate?

Japan

No, unless most of its relevant employees refuse to cooperate. It is the same as for immunity. See question 32.

Answer contributed by Hideto Ishida and Yuhki Tanaka

65. Will the applicant lose its protections if one of its employees engages in obstructive conduct before or after the application?

Japan

No, unless most of its employees engage in obstructive conduct thereby the applicant itself being deemed to refuse to cooperate in investigations by the JFTC. Note that the extent of cooperation with the JFTC’s investigations is not supposed to affect the amount of administrative surcharge either upwards or downwards in Japan. Please refer to our response to question 33.

Answer contributed by Hideto Ishida and Yuhki Tanaka

66. Will the applicant be required to provide materials protected by attorney-client privilege or work-product doctrine?

Japan

Basically, no. Please refer to our responses to question 34. It is the same as for the immunity.

Answer contributed by Hideto Ishida and Yuhki Tanaka

67. Can an applicant challenge the amount of the reduction of sanctions?

Japan

Yes, the applicant can file a complaint with the Tokyo District Court with respect to the surcharge payment order. 

Answer contributed by Hideto Ishida and Yuhki Tanaka

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