Trends in Cartel Regulation

Transcription

1 Trends in Cartel Regulation Akinori Uesugi, Senior Consultant Freshfields Bruckhaus Deringer, Tokyo 0

2 Topics for discussion Are there any Asian particularities in cartel regulation? Current trends in cartel enforcement in Japan What can be done to improve the situation in Asian countries? 1

3 Are there any Asian particularities? 2

4 Issues for cartel regulation in Asia Are there any particular aspects in cartel regulation in Asian countries? In the past, many people might have answered Yes, there are, but nowadays the answer is definitely No! However, we should look at the reality instead of text of law. Is cartel enforcement in Asian countries satisfactory? Are businesses very serious in cartel law compliances? There is still a long way to go for Asian countries. 3

5 Common understanding of cartels in Asia It is a challenge to eliminate cartel activities from Asia. Misperception of cartels inherited from the past is still prevailing in Asia. How well do we know the status of cartel enforcement in Asian countries? Does the cartel regulation system in Asian countries provide sufficient deterrent effects against cartels? A goal should be to achieve more effective cartel regulation in Asia. 4

6 Surcharges in Japan Fiscal year Total surcharges (billion yen) FY FY FY FY FY FY FY FY FY FY

7 Fines in EU Fiscal year Total fines (million euro) FY2006 1,846 FY2007 3,338 FY2008 2,270 FY2009 1,623 FY2010 1,669 6

8 Criminal fines in US Fiscal year Total fines (million US dollars) FY FY FY FY FY FY FY FY FY FY

9 Surcharges - Japan top 8 Company Year Product Amount (billion yen) A 2009 Chloride vinyl tube 7.96 B 2009 Casted iron 7.07 C 2009 Steel plate 6.34 D 2009 Steel plate 5.49 E 2009 Chloride vinyl tube 3.72 F 2009 Steel plate 3.68 G 2009 Casted iron 2.93 H 2009 Air cargo

10 Fines - EU top 8 Company Year Product Amount (million euro) A 2008 Car glass 896 B 2009 Gas 553 C 2009 Gas 553 D 2007 Elevators & escalators 480 E 2001 Vitamins 462 F 2007 Gas insulated switchgear 396 G 2008 Car glass 370 H 2008 Candle wax 318 9

11 Criminal fines - US top 8 Company Year Product Amount (million US dollars) A 1999 Vitamins 500 B 2009 LCD Panels 400 C 2008 Air Transportation 350 D 2007 Air Transportation 300 E 2007 Air Transportation 300 F 2006 DRAM 300 G 1999 Vitamins 225 H 2010 LCD Panels

12 Analysis of enforcement records of three jurisdictions Freshfields Bruckhaus Deringer Current level of Japanese enforcement is roughly one-tenth of EU and US. A similar conclusion can be reached by comparing factors such as base fine percentage, multiplying factors for duration of cartels, repeat of violations, and turnover calculation method. Deterrence effects depend on severity of sanctions on cartel activities. Figures show strong deterring effects on business firms. 11

13 Are there any Asian particularities? Significant change in situation in Japan after 2006 All top 8 cases are rendered in Criteria of performance for competition agencies Proposal of a self-sufficiency test 12

14 Self-sufficiency test Fiscal year Total amount of surcharges (A) JFTC budget (B) (A/B in %) FY FY FY FY FY FY FY

15 Current trends in cartel enforcement in Japan 14

16 Efforts to tighten cartel regulation in Japan Freshfields Bruckhaus Deringer Amendment of the AMA effective in 2006 and in 2010 changed the cartel regulation scheme as follows: Introduction of a leniency program in 2006 Increase of surcharge calculation ratio from 6% to 10% of turnovers during the cartel period in 2006 Repeated violators are subject to 50% higher surcharges since 2006 and ring-leaders are subject to 50% higher surcharges since 2010 Leniency applications can be made by firms constituting a group since Up to 2010, applications had to be filed on entity-by-entity basis even if they belong to a single group Statute of limitation extended from 3 years to 5 years Maximum prison sentence raised from 3 years to 5 years 15

17 Surcharge orders and remedial measures The JFTC takes measures against international cartels more often Marine hose cartel case (JFTC, February 20, 2008) Cathode ray tube cartel case (JFTC, October 7, 2009) Leniency cases (the case originated by leniency application) tend to be big cases and involve big companies Surcharges against foreign turnovers is a key issue for the future 16

18 Leniency applications Fiscal year Number of applications per year Leniency cases (number of companies) FY 2005 (Jan Mar) 26 0 (0) FY (16) FY (37) FY (21) FY (50) After introduction of leniency program, amount of surcharges and size of recipient firms have increased significantly Leniency program is used mostly by leading firms in Japan 17

19 Criminal enforcement Since 2006, criminal investigation power is authorised to the JFTC Only 4 cases were prosecuted since 2006 despite criminal investigation power of JFTC, number of cases hasn t changed much Split of power of criminal investigation and power of criminal prosecution in Japan 18

20 What can be done to improve the situation in Asian countries? 19

21 What can be done to improve the situation in Asian countries? Freshfields Bruckhaus Deringer Awareness of enforcement situation in other Asian countries Exchange of successful experiences or problematic experiences in each Asian countries Exchange of experiences on government interventions which faciliate cartel behaviour SITUATION IN JAPAN More serious approach to cartel compliance No hesitation to spend necessary compliance budget 20

22 For further information, please contact: Akinori Uesugi Senior Consultant Freshfields Bruckhaus Deringer Akasaka Biz Tower 36F Akasaka Minato-ku Tokyo Japan TEL: FAX: akinori.uesugi@freshfields.com This material is for general information only and is not intended to provide legal advice. Freshfields Bruckhaus Deringer 2010 TOKBS