COOPERATION BETWEEN AGENCIES IN LENIENCY PROGRAM

Katsutoshi KATAOKA Chief Investigator for Leniency Program, Investigation Bureau Japan Fair Trade Commission

ICN SGI 6

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Call Wednesday, 13th March, 2013

CONTENTS TOPIC1 TOPIC2 TOPIC3 WAIVER PRE-INVESTIGATION COORDINATION INFORMATION EXCHANGE DURING INVESTIGATION

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TOPIC1 WAIVER

JAPAN  Usually submitted orally  Often conditional (ex. Only the fact that the company applied to JFTC and the basic information of the cartel etc. )  Usually documents and evidences not allowed to exchange Issue  Would the universal document form of waiver among agencies be useful? In addition, would asking the applicants to submit the copy of waiver to other relevant agencies as well be helpful?

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TOPIC2 PRE-INVESTIGATION COORDINATION

 Information exchange (ex. the applicant, cartel members, relevant market, duration) •  Coordinating the schedule of dawn raids, investigation methods Usually JFTC does dawn raids for cartel investigations. So time difference could matter in international cartel cases. 9AM in Tokyo, 1AM in Belgium, 7PM in DC… • Which authority should lead? The authority where key companies or persons reside?

• Where are key persons? They may be on business trip to other jurisdiction on the dawn raids date. Inform other authorities when arresting key persons from their jurisdictions?

Any critical difficulty in this phase?

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TOPIC3 INFORMATION EXCHANGE DURING INVESTIGATION JAPAN In JFTC, leniency program and investigation are handled by different divisions. After dawn raids, the investigation team exchanges info with other authorities:  Information obtained through leniency program: exchanged by waivers  Information obtained by the investigation: only schedule of investigation, legal issues etc. exchanged Issue How is info after dawn raids exchanged between other jurisdictions? More info could be exchanged by Cooperation Agreements etc.?

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Thank you for listening!!

Questions, comments, thoughts… [email protected]

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Appendix 1 Threshold for Immunity or Reduction

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THRESHOLD FOR IMMUNITY OR REDUCTION JAPAN  Marker period: usually 10 business days for pre investigation applications and 20 business days for post investigation ones. Cannot be extended.

 Full and continuous cooperation is not clear in the law. JFTC can require additional information but does not so much.

 4 th and 5 th pre-investigation applicants and post investigation ones need to submit reports and documents unknown to JFTC, but the threshold seems not high.

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THRESHOLD FOR IMMUNITY OR REDUCTION Issue  (CONT’D) Marker period should be able to be extended?

  Full and continuous cooperation should be prescribed clearly in the law?

ex. Can authorities get more information efficiently by extending marker period and requiring info in a step-by-step manner?

The threshold for applicants, especially 2 nd or later applicants, should be high?

ex. Can we get more info by being strict to 2 nd applicants? Could it chill 2 nd or later or later applicants?

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Appendix 2 Leniency Program in Japan

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1st Applicant OVERVIEW Initiation of JFTC investigation

Before After

2nd Applicant 100% immunity 50% reduction 3 rd to 5 th Applicant 30% reduction Criminal accusation NOT filed by JFTC (Applicant firm and its individuals) Up to 5 applicants Up to 3 Applicants 30% reduction 30% reduction

REQUIREMENTS(1)

For immunity  The first firm to come forward before the first day of the investigation  Not commit the relevant violation on or after the first day of the investigation For reduction  2nd to 5th firm to individually report to JFTC  Not commit the relevant violation on and after the first day of the investigation for pre investigation applicants, or on and after the reporting date for post-investigation ones  Submit reports and documents unknown to JFTC (for 4 th and 5 th applications before the investigation begins, or for applications after the investigation begins)  Report is due the twentieth day from the first day of the investigation (for applications after the investigation begins)  Maximum Number of Applications after the investigation begins : Three (but The total of applications including before and after the investigation are limited to no more than 5) 12

REQUIREMENTS(2)

Both for immunity and reduction  Form No.1 (for pre-investigation) and Form No.3 (for post-investigation) must be transmitted only in facsimile  03-3581-5599 (+81-335815599 from overseas, but Japanese language only)  Reports and documents submitted not contain false information  Submit reports or materials responding to JFTC's additional requests  Not coerce others to commit the infringement or block others from ceasing  Not disclose the fact of application to third parties without justifiable reasons 13

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EXPERIENCE (1)

Number of Applications after the introduction of the leniency program （ Since Jan. 2006 ） FY 2005 2006 2007 2008 2009 2010 2011 Total Applications ２６ ７９ ７４ ８５ ８５ １３１ 143 623 ※ The period of FY2005 is between Jan. 4 and Mar. 31 in 2006.

  Number of Cases ※ In 2010, the program was revised to introduce joint application and to expand the number of applicants.

Leniency applications are important information sources of price-fixing cartels, etc.

FY 05 06 07 08 09 10 11 Total １７ ９ ２０ １１ ２２ １０ 17 106 The number of price-fixing cartels and bid-riggings etc Leniency applied cases (published) Leniency applied companies (published) ０ ０ ６ １６ １６ ３７ ８ ２１ ２１ ５０ ７ １０ 9 27 67 161 14

 EXPERIENCE (2) After the introduction of the leniency program （ Since Jan. 2006 ） size of price-fixing cartel cases enlarges .

→ The  Strict measures against price-fixing cartels in the large market fields Major Cases (As of 2010) Main fields Hot-dip galvanized steel sheets Electric wire Vinyl chloride pipes Optical fiber cable Market size （ for one year ） 2032million US ＄ 2018million US ＄ 1416 million US ＄ 537 million US ＄  In FY 2011, the total of market sizes of 17 cartels or bid-riggings is about 7003 million US$.

※ Exchange rate: 2011 79.97\/$ 2010 88.09\/$ 2009 93.52\/$ 2008 104.23\/$ FY 2009 2010 2008 2010 15

Instructions Notifying the order of submission and the deadline of submission 16

MARKER

  Form No.1 Reporting Name and address of the applicant  Products concerned  Basic information of the conduct (such as geographical area, parties, duration)  No need to describe in detail, nor to attach documents  Not only 1st applicant , but also 2nd and subsequent  Order is decided according to the timing of Form No. 1 reporting Marker Period    JFTC notifies the applicant of the order of submission the deadline by which (1) reporting the facts regarding the violative act by using Form No.2 and (2) submission of materials should be completed 17