2022 Fiscal Year Research-status Report
Enforcement of competition law in the EU and Japan at a crossroads: an enquiry into the effectiveness of the remedies imposed by competition authorities and the role of private enforcement
| Project/Area Number |
22K01183
|
|---|
| Research Institution | The University of Tokyo |
|---|
Principal Investigator |
|
|---|
| Project Period (FY) |
2022-04-01 – 2025-03-31
|
| Keywords | 独占禁止法 / 競争法 / 民事訴訟法 / competition law / antitrust law / Japanese competition law |
|---|
| Outline of Annual Research Achievements |
My research suggests that competition law enforcement in Japan is particularly "consensual", meaning it places a strong emphasis on advocacy, consultation, and voluntary compliance mechanisms such as commitments. This has been particularly true in digital cases such as those against Amazon, Rakuten and Apple, and in unilateral conduct cases (as opposed to cartel cases). This “consensual” approach stands in contrast to the approach in jurisdictions such as the EU and the United States, where the major cases have led to high fines and fierce court battles.
My research identifies several lessons which Japan's rich experience with "consensual" enforcement holds for other jurisdictions. I have presented my findings at Japanese and international conferences and workshops (e.g. Simon Vande Walle, The Enforcement of Competition Law in Japan: All Carrots and No Sticks?, Academic Society for Competition Law (ASCOLA) Asia Workshop, 29 March 2023, https://www.youtube.com/watch?v=XBKzwpyuw-s).
In relation to private enforcement of competition law, I have conducted an in-depth analysis of the situation in the Netherlands and Germany, two jurisdictions where private competition litigation is booming. My analysis, conducted jointly with Jannik Otto and Patrick Hauser, was published in a new research handbook on private enforcement of competition law (Research Handbook on Private Enforcement of Competition Law in the EU, Barry J. Rodger, Miguel Sousa Ferro & Francisco Marcos eds., Edward Elgar, 2023).
|
| Current Status of Research Progress |
Current Status of Research Progress
2: Research has progressed on the whole more than it was originally planned.
Reason
The analysis of private enforcement of competition law in the Netherlands and Germany offers a window into the rapidly evolving situation in the EU and can serve as a point of comparison when assessing the role of private enforcement in Japan.
Progress was also made in relation to the analysis of competition law enforcement in Japan. The analysis of the wide range of tools which the Japan Fair Trade Commission (JFTC) uses to address competition law violations demonstrated the JFTC's emphasis on cooperation and voluntary compliance (e.g. frequent use of consultations, warnings, fact-finding reports that are used to identify and discuss problematic practices, commitments). This analysis is an important building block as it allows for a more accurate and balanced view on the effectiveness of competition law enforcement in Japan.
In relation to enforcement of competition law in the EU, several decisions involving merger remedies were analyzed and published in Concurrences Law Review, in a section that chronicles major decisions in European merger control (Chroniques Concentrations).
|
| Strategy for Future Research Activity |
Additional data on private litigation cases in Japan will be collected, and this data can then be analyzed and form the basis for an assessment and comparison.
The discussion of the Japan Fair Trade Commission's approach to competition law enforcement has raised various questions that warrant further investigation.
|
| Causes of Carryover |
For practical reasons and due to scheduling conflicts, it was not possible to attend a conference in Europe, but I plan to do so next year.
|
