The Asia-Pacific Antitrust Review 2019

Japan: E-Commerce

19 March 2019

Mori Hamada & Matsumoto

Overview

At the end of February 2019, the Japan Fair Trade Commission (JFTC) launched sector-wide inquiries into digital platform operators including global platform giants. This remarkable event clearly shows the JFTC's strong interest in the e-commerce sector. In accordance with the government-wide policy trend, the JFTC has announced that it will pay close attention to potential competition concerns caused by digital platform operators.1 Thus, it is reasonably anticipated that the JFTC will actively enforce the Anti-Monopoly Act (AMA) and establish policy arguments in the e-commerce sector in 2019.

The JFTC took some enforcement actions against alleged infringements by global ­e-commerce companies in the past couple of years, some of which are still ongoing. In addition, the JFTC disclosed that it has reviewed a couple of proposed mergers in the e-commerce sector in the past three fiscal years. With respect to a review of the administrative guidelines, the JFTC amended their guidelines for distribution. In the amendment, the JFTC shows, among other things, ­examples of issues relevant to the application of the Anti-Monopoly Act (AMA) in the context of the e-commerce sector. At the same time, various policy and academic discussions relevant to the e-commerce sector have been taking place within the JFTC and other authorities. For instance, last December, together with the Ministry of Economy, Trade and Industry (METI) and the Ministry of Internal Affairs and Communications (MIC), the JFTC launched the Study Group for the Improvement of the Trade Environment Involving Digital Platform Businesses. The study group announced fundamental principles to address issues relating to providing rules in response to the rise of digital platform businesses. The JFTC also released its 'Study Report on Data and Competition Policy' in June 2017, which focuses on how the AMA will be applied to issues relevant to the collection and usage of big data. Furthermore, the JFTC has just announced the results of a sector inquiry on the e-commerce sector, which was launched in January 2018.2

Recent enforcement actions

Amazon: parity clauses imposed by a platform company3 4

On 8 August 2016, the JFTC conducted a dawn raid on Amazon Japan GK (Amazon Japan). The JFTC suspected that Amazon Japan's conduct, including the imposition of certain parity clauses on sellers regarding its online sales platform (AmazonMarketplace), was unlawful. It took the view that they may be evaluated as restrictive trading prohibited by paragraph 12 of the Designation of Unfair Trade Practices and a violation of the AMA. The JFTC was concerned that when an online shopping platform imposes certain parity clauses on sellers, such clauses may exert the following negative effects on competition:

  • restricting sellers' business activities by limiting the reduction of prices and the range of goods that the sellers sell via other sales channels;
  • distorting competition among online shopping platforms by allowing an online shopping platform to impose those parity clauses to achieve the lowest price sold in its online shopping platform without making any competitive effort; and
  • reducing online shopping platforms' incentives for innovation and hindering new entrants.

On 1 June 2017, the JFTC announced that it had terminated the investigation of Amazon Japan based on the recognition that voluntary measures proposed by Amazon Japan could be sufficient to eliminate the JFTC's concerns. The JFTC also announced, on 15 August 2017, that it had received a report from Amazon Services International (ASI), which performs e-books deliveries on the Amazon.co.jp website. The report mentioned that ASI would take voluntary measures on the parity clauses contained in agreements with the publishers or distributors of e-books delivered on the website. According to the JFTC's announcement, it recognised that the voluntary measures proposed by ASI would basically eliminate the JFTC's concerns regarding the e-books delivery business on the Amazon.co.jp website.5

Airbnb: exclusive dealing

In the autumn of 2017, the JFTC made a dawn raid on Airbnb Japan (a Japanese subsidiary of Airbnb) on suspicion that its business may violate the AMA by requiring exclusivity from its counter­parties.6 Under the AMA, one party cannot trade with a counterparty on the condition that the counterparty does not trade with the party's competitor if such restriction tends to reduce trading opportunities for one's competitors (paragraph 11 of the Designation of Unfair Trade Practices, article 2, paragraph 9 of the AMA). Although the Airbnb spokesman announced that this was not the case,7 the JFTC was reportedly concerned that Airbnb asks its property management agencies not to list properties on rival home-sharing platforms by, among other means, forcing them to accept an agreement that contains a clause that the property management agencies may not use rival sites. While the JFTC has not made any official announcement yet, the JFTC is believed to be actively analysing the case, and it is still ongoing.

Minna no Pet Online: exclusive dealing

On 27 February 2018, the JFTC made a dawn raid on Minna no Pet Online co ltd (Minna no Pet) on suspicion that its business may violate the AMA by restricting its customers from posting infor­mation on competitors' website. According to the JFTC's announcement,8 Minna no Pet operated two websites to intermediate transactions involving dogs and cats between breeders and con­sumers, and Minna no Pet is an influential enterprise in this market space. As mentioned above, under the AMA, one party cannot trade with a counterparty on the condition that the counter­party does not trade with the party's competitor if such restriction tends to reduce trading oppor­tunities for one's competitors (paragraph 11 of the Designation of Unfair Trade Practices, article 2, ­paragraph 9 of the AMA). In this case, the JFTC was concerned that Minna no Pet may restrain fair compe­tition with other platform operators and cause unfair restraints of trade by restricting the breeders that register with Minna no Pet's site from posting information about dogs and cats on other pet intermediate websites. On 23 May 2018, the JFTC announced it had terminated the investigation of Minna no Pet based on the recognition that voluntary measures9 proposed by Minna no Pet could be sufficient to eliminate the JFTC's concerns.10

Merger review cases

Yahoo Japan/eBOOK initiative Japan11

In the 2016 fiscal year, the JFTC reviewed the acquisition of a minority of shares of eBOOK Initiative Japan (EIJ) by Yahoo Japan, a subsidiary of Soft Bank Japan (SBJ). Both SBJ group and EIJ group operate businesses relevant to e-books. Although the case itself was not so challenging because the market shares in the relevant market are below the safe harbour thresholds, the case is important since the JFTC indicated its view on the market definition for the e-book business. To elaborate, the JFTC analysed the substitutability between regular books and e-books, and reached the conclusion that such substitutability is limited at least under current conditions.12

Media Do/Digital Publishing Initiatives Japan13

In the 2016 fiscal year, the JFTC reviewed an acquisition by Media Do (MD) of a majority of shares of Digital Publishing Initiatives Japan (DPIJ). Both the MD group and the DPIJ group operate businesses relevant to e-books. In this case, the JFTC defined a two-sided relevant market in the e-book sector. To give some detail, the JFTC made a thorough analysis on the distribution system of e-books and defined the relevant market as the market for 'e-book brokerage'. Although the ­consolidated market shares of MD and DPIJ in the e-book brokerage market is approximately 60 per cent, the JFTC issued non-conditional clearance in this case. Among relevant factors, the JFTC placed importance on:

  • competition pressures from other e-book brokers;
  • actual and potential new entrants; and
  • competition pressures from customers who switch to other e-book brokers, from direct transactions between e-book publishers and e-book retailers, and from other e-book retailers that purchase e-books without using e-book brokers.

Yahoo Japan/Ikyu14

In the 2015 fiscal year, the JFTC reviewed an acquisition by Yahoo Japan (Yahoo) of all shares of Ikyu Corporation (Ikyu). Yahoo operates a business relevant to internet advertisement, and Ikyu operates businesses relevant to online reservations of travel and restaurants. Although the case itself was not so challenging because the market shares of most of the relevant markets are below safe harbour thresholds, the case is important since the JFTC publicly showed its views on two-sided markets. To elaborate, the JFTC mentioned in this case that two-sided market is a market that has:

  • different multiple users;
  • a platform that provides brokerage functions among different multiple users; and
  • indirect network effects.

Based on this analysis, the JFTC defined the following as relevant markets in this case:

  • 'Online Travel Reservation Services';
  • 'Online Restaurant Reservation Services';
  • 'Metasearch Services for Online Travel Reservations'; and
  • 'Metasearch Services for Online Restaurant Reservations'.

Recent amendments of statutes and guidelines

Amendments of the distribution guidelines15

The amendment of the Guidelines Concerning Distribution Systems and Business Practices under the AMA16 (Distribution Guidelines) on 16 June 2016 is the first substantial change since its enactment.17 The amendment covers a wide range of topics, but the three main features are as follows:

  • clarification of review processes for suspected conduct;
  • outlining of the JFTC's policy regarding its attitude toward online transactions; and
  • increasing the number of references to administrative precedents and prior consultations that are relevant to vertical restraints.

With respect to the clarification of review processes for suspected conduct, the amendment was accomplished in light of similar guidelines in other jurisdictions, such as, for instance, the EU Commission's Guidelines on Vertical Restraints.18 At the same time, the amended Distribution Guidelines categorise various vertical restraints by the scope of their anticompetitive effects. With respect to online transactions, the amended Distribution Guidelines emphasise the pro-­competitiveness of online transactions based on the recognition that online transactions generally broaden geographic and client reach compared to real-site transactions and provide efficiencies both with suppliers and consumers.19

The amended Distribution Guidelines demonstrate the JFTC's position that online trans­actions should be reviewed under the same fundamental principles as real site transactions.20 In the guidelines, the JFTC explains that a platfor holder's actions toward users of its platform are to be reviewed under the same fundamental principles as real site transactions.21 As for the details of the analysis of vertical restraints by platform businesses, the amended Distribution Guidelines point out that competition status among platform businesses and network effects22 should be taken into account in addition to other relevant factors, which the JFTC considers in the course of its review of traditional businesses (eg, inter-brand competition, intra-brand compe­tition, ­relevant players' market shares, competitive effects on counterparties, and numbers and market position of counterparties)23 (section 1-3-(1)).

In the amended Distribution Guidelines, the JFTC inserted an example of passive sales in the context of geographic restrictions. Like the European Commission's Guidelines on Vertical Restraints,24 the amended guidelines state that a passive sale occurs when: a customer gets to know a product on a website of a distributor and places an order with the distributor; or a customer chooses to continuously receive information, such as magazines, from a distributor and places an order with the distributor based upon the information, leading to a sale. When a manu­facturer imposes strict geographic restrictions on its distributors and prohibits them from making trans­actions with a customer outside the distributor's territory, the manufacturer's conduct is pro­hibited under the AMA as an Unfair Trade Practice (paragraph 12 of the Unfair Trade Practices, article 2, paragraph 9 of the AMA)25 (section2-3-(4)).

Amendments to the AMA to introduce commitment procedures

On 30 December 2018, a new procedure for terminating an investigation under the AMA came into force called kakuyaku-tetsuduki or 'commitment procedure'. Under the procedure, like the commitment procedure in Europe, the JFTC's investigation may be terminated without issuing any cease-and-desist or surcharge order when an investigated company voluntarily proposes effective remedies to the JFTC and the JFTC approves them.26 At the timing of writing, there have been no publicly announced cases terminated through this procedure. It is possible that the JFTC may become active in investigating the e-commerce sector as a result of the introduction of this procedure since it may help the investigated company and the JFTC find a reasonable solution and lead to termination of an investigation.

Policy discussions

Study report on data and competition policy27

Big data is one of the most important competition factors in the e-commerce industry. A policy report that discusses the interactive relationship between data and competition policy was recently released by the JFTC Study Group on Data and Competition Policy. The study group mainly consisted of academic professionals and antitrust law practitioners. Their report, released on 6 June 2017, discusses how Japan's AMA may address issues caused by today's data-driven ­society. The report clearly endorses the notion that the accumulation and utilisation of data promotes competition and creates innovation. On the other hand, it also mentions that some situations justify intervention under the AMA, and provides for possible application of the Act in each such situation. The report provides some suggestions for analysing competition concerns when business combination accompanies significant data accumulation, noting that free services such as social networking services can be recognised as a relevant market for the purpose of market defi­nition. With respect to competition analysis, the report suggests that whether a proposed business combination with data accumulation harms competition should also be examined from the following perspectives:

  • competition for artificial intelligence techniques or goods and services related to data; or
  • competition in the 'data market' in a situation where similar data are bought and sold in a data market.

As for data collection, the report says it may be an abuse of superior bargaining position when a company A, which has a superior bargaining position, unilaterally demands that another company B provide data to company A when company B wants to enter an alliance with company A. In addition, the report points out that a digital platform holder's collection of personal infor­mation that is not in accordance with relevant laws in Japan may be an issue for antitrust law if its service 'locks in' the customers, although such conduct is primarily addressed by the Act on the Protection of Personal Information.28

Regarding data hoarding, the report suggests that refusal of access to data by competitors or customers may be a violation of the Anti-Monopoly Act if the data is essential for competitors' business in certain conditions if:

  • the refusal of disclosure has no reasonable grounds other than exclusion of a competitor if there is a fact that the data has been disclosed to other competitors; or
  • the refusal of access may result in exclusion of a competitor if there is a fact that the company is obliged to allow customers to access the data and let the customers make use of the data for the transaction with the competitor.

The report also suggests that it may be a violation of the AMA under certain conditions if a ­company ties data provision and data analysis services together or demands that its customer not trade with its competitors on condition of providing data or analysis techniques. While the report indicates that joint collection and joint use of data generally foster competition, it notes that businesses should pay attention to joint data collection that would allow businesses in the market to conjecture competitors' price and quantity. The media covering the release of the report has been rather sensational at times.

The report does not aim to provide a brand new approach to or a new way of regulating compe­tition in a data-driven society. First of all, as mentioned before, the report generally emphasises positive effects on competition associated with the accumulation and utilisation of data. In addition, while the report mentions some circumstances in which competition law issues may arise with regard to data accumulation or utilisation and tries to provide some suggestions on how to approach those issues, the suggestions provided in the report are essentially based on regular interpretation of the AMA. Since the Act has no exemption for the accumulation or utilisation of data, it is natural that standard interpretations are applied to them. In this regard, the report may not contain anything greatly unexpected for antitrust law practice in Japan. Nonetheless, however, the report provides some suggestions based on meticulous observations of the latest discussions in international arenas such as the OECD and various jurisdictions.

For example, the report clearly indicates that free services are to be recognised as relevant ­markets. Although the JFTC had previously defined a service-for-free business as a relevant ­market (eg, 'non-paid video provision service' was defined in the Kadokawa/Dwango joint share transfer case),29 it is still remarkable that the report keeps an eye on multi-sided markets and provides a clear view of the market definition in such markets as a general matter. In the process of defining a service-for-free market, the report discusses that demand substitutability shall be evaluated based on the result of the review of the customers' recognition on the target service, although the 'small but significant and non-transitory increase in price' test is difficult to apply in defining a service-for-free market. The report also provides an interesting discussion on merger review thresholds in Japan. Currently, merger review thresholds in Japan30 are defined primary by the relevant companies' domestic turnovers in Japan. Although even non-notifiable M&A transactions may also be subject to merger review under the existing system, the report suggests that revision of the thresholds should be on the agenda when needed to make an appropriate assessment in the early stages of a deal that may create significant market power in relevant markets. This remark in the report may be an indication of the JFTC's concerns about M&A transactions that probably result in considerable data accumulation. As for specific conduct that may cause antitrust concerns with respect to the accumulation and utilisation of data, the report discusses possible applications of the AMA to each type of conduct.

For regulating anticompetitive practices, the Act has two primary legal tools in addition to the prohibitions of cartels and bid-rigging. One is the prohibition of abuse of dominance, or private monopolisation, as defined in article 2, paragraph (5) and article 3 of the AMA; and the other is the prohibition of unfair trade practices as defined in article 2, paragraph (9) and article 19 of the AMA. Considering that unfair trade practices include various types of conduct, some of which are not usually prohibited in other jurisdictions (eg, an abuse of superior bargaining position) and usually requires fact-specific and elaborate analysis, the report may increase predictability and legal stability for businesses by showing examples of the AMA's application in each situ­ation where it matters. Unlike the European Commission's active application of article 102 of the Treaty on the Functioning of the European Union against platform businesses such as Google 31 32 – the JFTC takes a conservative view toward making a case under the clause prohibiting private ­monopolisation. In this regard, the possible applications of that clause suggested in the report look relatively theoretical compared to those on the prohibition of unfair trade practices.

In addition to discussions of the possible applications of relevant clauses of the AMA, the report provides some suggestions. It discusses a situation where a platform holder with market power can form, maintain or strengthen its market power by changing its data policy for customers – the situation is similar to the investigation33 by Germany's Federal Cartel Office against Facebook for alleged abuse of a dominant position in the social networking market. The report suggests that the Act on the Protection of Personal Information34 and other consumer protection laws are the primary tools for handling such situations. But it also argues that the AMA may be an option to address the issue when an anticompetitive effect arises, and the report identifies legal issues to consider when applying the prohibition of private monopolisation, as well as the prohibition against abuse of a superior bargaining position.

Report of the Study Group for Ideal Approaches to Competition Policies for the Fourth Industrial Revolution

The competition enhancement office of the METI set up 'a Study Group for Ideal Approaches to Competition Policies for the Fourth Industrial Revolution', which released its report dated 28 June 2017.35 Compared to the JFTC study group, the METI study group has paid more attention to encouraging growth in data-related industries in Japan through maintaining a fair compe­tition environment. It may be evaluated as a reflection of the METI's industrial policy mission.36 In the report, the METI study group categorises data-related businesses into the following four models, in accordance with the level of utilisation of data:

  • 'Independent Growth Model' (ie, data to be accumulated or utilised for the improvement of products or services);
  • 'Concomitant Provision Model' (ie, data gained from products or services to be utilised for incidental service);37
  • 'Other Field Utilization Model' (ie, data gained from products or services to be utilised in a different market);38 and
  • 'Multi Fields Interlocking Model' (ie, data gained from many markets of products or services to be mutually accumulated or utilised).39

The report also presents factors to be considered together with the following three factors to be examined to analyse competition law issues in each model:

  • the impact of data;
  • possibilities of accumulation; and
  • possibilities of utilisation.

Although the JFTC is the sole enforcer of the AMA, given that the METI is involved in the enhancement of a sound competition environment in Japan, conducting further analysis on the report by the METI study group is also important to predicting coming antitrust law and policy trends for data-related businesses including e-commerce.

Study Group Interim Report and Fundamental Principles: digital platform operators

In July 2018, three government agencies, the JFTC, the METI and the MIC, set up a study group discussing the business environment for digital platform operators, and on 12 December 2018, the study group released an interim report (the Interim Report).40 The Interim Report identifies41 the following major discussion points:

  • the nature of digital platform operators;
  • the legal approach to digital platform operators;
  • the duties that might be imposed on digital platform operators based on their role as innovators;
  • the realisation of transparency for a fair business environment;
  • the re-definition of fair and free competition;
  • the discussion of transfer and disclosure rules of data; and
  • international perspectives.

Although the interim report admits that digital platform operators provide various positive effects and efficiencies for customers including SMEs and consumers, it may recommend imposing new rules on world-renowned digital platform operators such as Google, Apple, Facebook and Amazon.

On 18 December 2018, the JFTC, the METI and the MIC released a policy paper titled 'Fundamental Principles for Rulemaking to Address the Rise of Platform Businesses' (Fundamental Principles).42 The Fundamental Principles paper was formulated based on the Interim Report and proposes the following points as fundamental principles for rulemaking to address the rise of platform businesses:

  • consider legal perspectives for digital platform operators;
  • foster appropriate development of platform businesses;
  • realise transparency for establishing a fair business environment with regard to digital platform operators;
  • substantiate fair and free competition with regard to digital platform operators;
  • study rules for the transfer and disclosure of data;
  • establish sound, flexible and effective rules; and
  • discuss extraterritorial applicability of Japanese regulations in the context of international harmonisation43.

Academic and policy discussions in the Competition Policy Research Center

The Competition Policy Research Center (CPRC) of the JFTC44 is a policy research insti­tution ­sponsored by the JFTC. Its objective is:

to build and improve functional and sustainable ­cooperative platforms between intellectual resources of outside researchers and practitioners and staff ­members of the Fair Trade Commission in order to reinforce the theoretical foundation on which it operates Antitrust Law and to plan, propose, and evaluate competition policy from medium- and long-term perspectives as well as from the perspective to utilize the platform to enforce measures for current issues45

As for the e-commerce sector, the CPRC regularly holds seminars and symposiums focusing on, among other things:

  • 'New Competition Policy in the Digital Society: Platforms and Protection of Personal Information' (December 2018), discussing interactions between competition policy and data protection policy in a era of digital society;46
  • 'New Businesses which make use of big data and AI and Competition Policy' (May 2018), discussing the application of competition policy to new business models in the context of big data and AI;47
  • 'Development of Digital Economy and Competition Policy' (March 2018), discussing future trends of competition policy under ongoing development of the digital economy;48
  • 'Digital Economy and Competition Policy' (December 2017), discussing competition policy and business strategy of Japanese companies in the Digital Economy Era;49
  • 'The Emerging Matchmakers Economy and Competition Policy' (December 2016), discussing changes in competition law and policy in relation to emerging multisided platformers;50 and
  • 'Vertical Restraints in E-Commerce: from the Competition Policy Perspectives' (June 2016), discussing issues of vertical restraints that are unique to E-Commerce transactions.51

The CPRC also regularly issues discussion papers focusing on E-Commerce, such as:

  • Jérôme Fabre and Masako Wakui, 'The Booking.com Case and Commitment Procedure, Restraint of Trade by the Court and Sector Regulations: Focusing on Parity Clauses in Online Tourism Business' (January 2018);52
  • Mitsuru Kikkawa, 'Issues of Competition Policy in the Era of the Sharing Economy' (March 2017);53 and
  • Hiroshi Ohashi, Naoki Okubo, Chizuru Ikeda, et al, 'Analysis of Characteristics of Platform Business and Issues of Merger Review' (December 2015).54

Since the JFTC positioned the digital economy and e-commerce as one of its most important policy issues,55 the CPRC is likely to continue to provide advanced academic and policy discussions rele­vant to the e-commerce sector in cooperation with government officials and private practitioners in Japan and all over the world.

Fact-finding efforts

Sector inquiry for e-commerce sector

In January 2018, the JFTC launched a sector inquiry for the e-commerce sector.56 Like the sector inquiry into e-commerce conducted by the European Commission,57 the JFTC gathered facts about sales conditions between manufacturers and distributors, sales measures of manufacturers and distributors via their websites, and conducted surveys regarding online market transactions. Furthermore, the JFTC is said to gather information relevant to the usage of algorithms in the context of e-commerce through the inquiry.

In the inquiry, the JFTC announced that it only focuses on the transaction of goods (ie, the JFTC does not include transactions of services nor digital contents). On 29 January 2019, the JFTC released the result of the sector inquiry in a form of the report (the 'Survey Report on the Trading Conditions for Consumers via E-Commerce'), in which the JFTC summarises various facts of e-commerce transactions obtained through the survey and provides its positions on certain ­typical but debatable trading customs (eg, strict restrictions of online transactions, MFN clauses) from the perspectives of the AMA.58

Survey for digital platform operators

In reaction to the Interim Report released on 12 December 2018, the JFTC is said to have begun preparing a survey of digital platform operators. Though the details of the survey have yet to be revealed, it is likely that the JFTC will launch the survey based on article 40 of the AMA to try to understand the business of the digital platform operators. Since the JFTC seems to have interest in the applicability of the abuse of superior bargaining positions in platform operators' unfair conduct against platform users, it is possible that the JFTC may aim to obtain relevant facts through the survey to substantiate the discussion of the AMA's applicability.

What to expect

Though the JFTC has yet to conduct a large number of investigations in the e-commerce sector, it has handled some cases in infringement investigations and merger reviews. At the same time, the JFTC continues to facilitate policy and academic discussions relevant to the sector and has started discussing the application of the AMA against digital platform operators. Based on these facts, it is apparent that the JFTC maintains considerable interests in e-commerce.

On a separate note, the enforcement tools under the AMA are about to change: the commitment procedure was introduced in December 2018 and a kind of discretionary surcharge system is scheduled to be introduced in the near future.59 With these new enforcement tools, the JFTC will obtain more flexibility in launching enforcement actions. Along this line of thinking, it is likely that the JFTC will come to enforce the AMA more actively in the e-commerce sector in the next couple of years.


Footnotes

1 This can be found in the JFTC Chairman's message on January 2019, available at: https://www.jftc.go.jp/en/about_jftc/MessagefromChairma/190121.html.

2 The press release is available only in Japanese at: https://www.jftc.go.jp/houdou/pressrelease/2019/jan/190129.html.

5 The JFTC 'Report on e-Books Agreements from Amazon Services International, Inc.', 15 August 2017, available at: http://www.jftc.go.jp/en/pressreleases/yearly-2017/August/170815.html.

7 Ibid.

9 According to the JFTC's announcement, Minna no Pet proposed that it will give up restricting its registered breeders from posting information on competitors' websites and make a public announcement on the new policy.

11 Please refer to No. 11 of Major Business Combination Cases in FY 2016 available at: https://www.jftc.go.jp/houdou/pressrelease/h29/jun/170614_01.files/170614.pdf.

12 In the course of its analysis, the JFTC referred to a report titled 'Demand Substitutability between Online Service and Offline Service'. The report was issued by the Competition Policy Research Center of the JFTC in 2015 and isavailable at: https://www.jftc.go.jp/cprc/reports/index.files/cr-0315.pdf.

13 Please refer to No. 12 of Major Business Combination Cases in FY 2016, available at: https://www.jftc.go.jp/houdou/pressrelease/h29/jun/170614_01.files/170614.pdf.

14 Please refer to No. 8 of Major Business Combination Cases in FY 2015, available at: https://www.jftc.go.jp/houdou/pressrelease/h28/jun/160608_2.files/160608.pdf.

17 The original version of the Distribution Guidelines was introduced on 11 July 1991.

18 The European Commission 'Guidelines on Vertical Restraints' (2010/C 130/01). Available at:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:130:0001:0046:EN:PDF.

19 Part I, Section 1-1-(1) of the Distribution Guidelines.

20 Ibid.

21 Ibid.

22 In the amended Distribution Guidelines, the JFTC provides for both direct network effects and indirect network effects (Note 3 of Section 1-3-(1)).

23 Part I, Section 1, 3-(1) of the Distribution Guidelines.

25 Part I, Section 2, 3-(4) of the Distribution Guidelines.

36 The METI announced that it aims to create a new type of industrial society called 'Connected Industries', as a policy concept through which a variety of industries are connected and create new added value. Please refer to: www.meti.go.jp/english/press/2017/0628_001.html.

37 The report describes the following data usage as an example: maintenance service utilising operational information gained from a product.

38 The report describes the following data usage as an example: setting insurance premiums by utilising driving records gained through driving support apps.

39 The report describes the following data usage as an example: mutual data utilisation among many different services including matching, sharing and other online services, various apps and advertisements.

40 A draft of the interim report was released on November 5, 2018 and was finalized on 12 December 2018 after the public comment procedure. For the final version of the interim report, please refer to METI, JFTC and MOIA's 'Announcement of the Interim Report by the Panel of Experts for Discussing the Business Environment for Digital Platform Operators' (November 5, 2018). Available at: http://www.meti.go.jp/english/press/2018/1105_003.html.

41 Ibid.

43 Ibid.

49 The relevant materials are available in Japanese at: https://www.jftc.go.jp/cprc/koukai/seminar/h29/45_notice.html.

50 The relevant materials are available in Japanese at: https://www.jftc.go.jp/cprc/koukai/seminar/h28/43_notice.html.

51 The relevant materials are available in Japanese at: https://www.jftc.go.jp/cprc/koukai/sympo/
2016notice.html.

57 As for the European Commission's Sector Inquiry, please refer to: http://ec.europa.eu/competition/antitrust/sector_inquiries_e_commerce.html.

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