June 25th, 2020
Japan Fair Trade Commission
The bill to amend the Act on Prohibition of Private Monopolization and Maintenance of Fair Trade was passed on June 19th and promulgated on June 26th, 2019*1(Act No.45 of June 26, 2019. Hereinafter referred to as “the amendment act”). It includes the introduction of the system of applying the reduction rates according to the degree of enterprises’ contribution to revealing the truth of the case (hereinafter referred to as “Reduction System for Cooperation in Investigation”) in the Leniency Program. The Japan Fair Trade Commission (hereinafter referred to as “JFTC”) shall introduce a new procedure, from the perspective of making the new leniency program more effective, etc. concurrently with the enforcement of the amendment act. The new procedure (hereinafter referred to as “Determination Procedure”) sets forth that investigators will not access the documents containing confidential communication between an enterprise and an attorney regarding the legal advice on unreasonable restraint of trade, if certain conditions are confirmed to be met pursuant to prescribed procedures.
The JFTC, to prescribe the details of the Determination Procedure, published the draft of the amendment of the Rules on Investigations by the Fair Trade Commission and the draft of the Treatment of confidential communication between an enterprise and an attorney along with the introduction of the Determination Procedure, and the draft of the amendment of the Guidelines on Administrative Investigation Procedures under the Antimonopoly Act. It is shown in the draft of the Guidelines that employees, etc. of the applicant for the leniency program may take notes on the spot after the completion of interview conducted by investigators. The JFTC published these draft amendments of them on April 2nd to request public comments from various stakeholders on these draft amendments, which was due to May 15th*2.
In response from home and abroad to the call for comments, 39 comments were submitted to the Determination Procedure and 6 comments to taking notes on the spot after the completion of interview. After careful consideration of the comments, the JFTC partially amended the draft of the Treatment of confidential communication between an enterprise and an attorney and published the Rules and Guidelines (Attachment 1, 2 and 3). Please refer to Attachment 4 (only in Japanese) for a summary of received public comments and the JFTC’s reviews on these comments and Attachment 5 (only in Japanese) for changes from this draft*3.
The Rules and Guidelines come into effect on the date of the promulgation of the amendment act*4.
*１The summary of the amendment act is also available on this website.
https://www.jftc.go.jp/en/pressreleases/yearly-2019/June/19061907.html
*２Besides the JFTC has published the draft of the amendment of the Rules on Reporting and Submission of Supporting Materials Regarding Immunity from or Reduction of Surcharges and the draft of the Guidelines to Reduction System for Cooperation in Investigation to introduce the Reduction System for Cooperation in Investigation and had requested public comments from various stakeholders on these drafts from April 2nd to May 15th. The results of the public comments will be published separately.
*３The supplementary Provisions Article 1 of the draft of the amendment of the Rules on Investigations by the Fair Trade Commission was revised in part from the legislative perspective. This revision has nothing to do with the content.
*４The amendment act shall come into effect on the date specified by Cabinet order within a period not exceeding one and a half years from the date of the promulgation of the Bill except for the enforced regulation. (Refer to the chapeau of Article 1 of the Supplementary Provisions of the amendment act.)
(Attachment 1)Rules on Investigations by the Fair Trade Commission in PDF(PDF : 393KB)
(Attachment 2)Guidelines on treatment of objects recording confidential
communications between an enterprise and an attorney in PDF(PDF : 428KB)
(Attachment 3)Guidelines on Administrative Investigation Procedures
under the Antimonopoly Act in PDF(PDF : 336KB)
(Reference)Treatment of confidential communication between an enterprise and an attorney(the point of Determination procedure) in PDF(PDF：147KB)
＊Every announcement is tentative translation.
Please refer to the original text written in Japanese for more details.
