Recommendations for Amendments to Ensure Japan's Antimonopoly Act Meets the Needs of the 21^st Century

1. Basic position of Nippon Keidanren

1. Japan's international competitiveness should be strengthened by revising the Antimonopoly Act and bringing it up to date.
2. The Japanese government should establish the basis for 21^st-century competition policies by: (i) eliminating the structural imbalances of enforcement mechanisms embodied in the Antimonopoly Act that are the result of numerous amendments made in a jumbled fashion; (ii) clarifying the nature of surcharges, which is at present unclear; and (iii) treating surcharges as punitive sanctions.
3. The government should eliminate the practice of subjecting corporations to the dual punishment of both surcharges and criminal penalties, and amend the Antimonopoly Act so that it more closely resembles the antimonopoly laws of other countries.
4. When enhancing the authority of the Fair Trade Commission (FTC), the government should ensure that it respects due process and is structured in a way that is suitable for the quasi-judicial entity that it is.
5. The government should take overall responsibility for ensuring that steps leading to the amendment of the Antimonopoly Act are transparent and fair by promoting an open, full-fledged study, before a bill amending the act is submitted to the Diet.

2. Revision of the surcharge system

1. The determination of a surcharge amount should take into consideration the level of seriousness or maliciousness of each specific case. The surcharge base amount should then be increased or decreased accordingly.

   Note: For example, under the current system, the rate is 6% of the amount of sales revenue earned during the time a cartel supplies goods or services illegally (no increase or decrease is recommended).

2. Transparent criteria should be established to permit an increase or decrease in the ratio used to calculate the surcharge.

3. Elimination of dual punishment for corporations

1. Sanctions applied against a corporation should be in the form of surcharges. Criminal penalties should only be applied against individuals who commit illegal acts.
2. If surcharges and criminal penalties are both allowed to remain as corporate sanctions, only one of them should be imposed for a single infraction.

4. Introduction of leniency program

1. A leniency program should be introduced, provided that the recommendations in sections 2 and 3 above are adopted.
2. Before an FTC on-site inspection, entrepreneurs who report substantial information to the FTC should have the surcharge waived in the case of the first reporter, reduced by 50% in the case of the second reporter, or reduced by 30% in the case of the third and subsequent reporters.

5. Need for due process

1. At the present time, there are numerous problems with the way authority is exercised in administrative investigations. Due process needs to be followed.
2. FTC hearing procedures should allow entrepreneurs and investigators equal footing when they are testifying, just as in a criminal case. Hearing examiners (chosen mainly from among people who have had experience serving as judge) should not form any opinions before hearing the testimony, and should remain impartial when rendering a decision.
3. FTC warnings, which are issued without entrepreneurs having the opportunity to refute their content, should not be made public without the consent of the entrepreneurs who are receiving such warnings.
4. The FTC should make a point of hiring experienced people for the FTC General Secretariat who have either judicial qualifications or a rich academic background in the relevant fields.

6. Dealing with bid rigging

1. The public procurement system should be changed into a bidding system that takes into account not only price but also technical ability and work quality. This would be one way to combat the practice of contractors obtaining orders through dumping.
2. To deal with cases in which government officials orchestrate bid collusions, a new provision should be established that imposes criminal penalties on an employee of an entity calling for bids who tries to persuade a supplier to collude in the bidding process.
3. An effective, clear-cut standard should be established to deal with dumping and officials that take undue advantage of their high position.