Act on Prohibition of Private Monopolization and Maintenance of Fair Trade

If an enterprise effects unreasonable restraint of trade or enters into an international agreement or an international contract containing matters, falling under unreasonable restraint of trade, that is related to the price of goods or services or substantially restrain supply or purchase volume, market share or transaction counterparties with respect to goods or services and thereby affects their price, the Japan Fair Trade Commission must order the enterprise, pursuant to the procedures as provided in Section 2 of Chapter VIII, to pay to the national treasury a surcharge of an amount equivalent to the total sum of ten percent of the amount listed in items (i) through (iii) below and the amount listed in item (iv) below provided, however, that if the amount thus calculated is less than one million yen, the Japan Fair Trade Commission must not order the payment of the surcharge.

the amount of sales of the relevant goods or services that the enterprise and its specified non-violating supplying subsidiary company, etc. supplied in the particular field of trade concerned with the relevant violation (limited to the violation related to supplying goods or services; hereinafter the same applies in this item) (excluding the goods or services that the specified non-violating supplying subsidiary company, etc. supplied to the enterprise and the goods or services that the enterprise or the specified non-violating supplying subsidiary company, etc. supplied to the supplying subsidiary company of the enterprise, etc.), and the relevant goods or services that the enterprise and the specified non-violating supplying subsidiary company, etc. supplied to the supplying subsidiary company, etc. in the particular field of trade (excluding the goods or services that the supplying subsidiary company, etc. (limited to the violating supplying subsidiary company, etc. or the specified non-violating supplying subsidiary company, etc. of the enterprise) received from the enterprise or the specified non-violating supplying subsidiary company, etc. in order to supply the goods or services to others) for the period of implementation concerned with the violation, calculated using the method provided by Cabinet Order;

the amount of purchases of the relevant goods or services that the enterprise and its specified non-violating purchasing subsidiary company, etc. received in the particular field of trade concerned with the relevant violation (limited to the violation related to receiving goods or services; hereinafter the same applies in this item) (excluding the goods or services that the specified non-violating purchasing subsidiary company, etc. received from the enterprise and the goods or services that the enterprise or the specified non-violating purchasing subsidiary company, etc. received from the purchasing subsidiary company, etc. of the enterprise), and the relevant goods or services that the enterprise and the specified non-violating purchasing subsidiary company, etc. received from the purchasing subsidiary company, etc. in the particular field of trade concerned with the violation (excluding the goods or services that the purchasing subsidiary company, etc. (limited to the violating purchasing subsidiary company, etc. or the specified non-violating purchasing subsidiary company, etc.) received from others in order to supply the goods or services to the enterprise or the specified non-violating purchasing subsidiary company, etc.) for the period of implementation concerned with the violation, calculated using the method provided by Cabinet Order;

the amount calculated by using the method provided by Cabinet Order, equivalent to the price for the business that is closely connected to the goods or services concerned with the relevant violation such as manufacturing, sales, or management of all or part of the goods or services which, provided by Cabinet Order, the enterprise and its wholly owned subsidiary company, etc. (limited to the wholly owned subsidiary company, etc. that has never committed a violation; the same applies in the following item) conducted;

the amount calculated by using the method provided by Cabinet Order, equivalent to economic benefits such as money which the enterprise and its wholly owned subsidiary company, etc. gained irrespective of its name such as charges and remuneration, with regard to not supplying the goods or services concerned with the relevant violation to others (excluding the supplying subsidiary company, etc. of the enterprise, other enterprises that committed a violation and their supplying subsidiary company, etc.) or not receiving the goods or services from others (excluding the purchasing subsidiary company, etc. of the enterprise, other enterprises that committed a violation and their purchasing subsidiary company, etc.).

In cases under the preceding paragraph, if an enterprise falls under either of the following items (excluding the cases where one or more subsidiary companies, etc. of the enterprise do not fall under any of those items), the term "ten percent" appearing in the paragraph is replaced with "four percent".

any company whose amount of stated capital or total contribution amount is not more than three hundred million yen and any company or individual whose number of regular employees is three hundred or less, which operates as its principal business, a manufacturing, construction, transportation or other business (excluding the business types listed in items (ii) through (iv) and the business types provided by Cabinet Order pursuant to item (v));

any company whose amount of stated capital or total contribution amount is not more than one hundred million yen and any company or individual whose number of regular employees is one hundred or less, which operates a wholesale business (excluding business types provided by Cabinet Order pursuant to item (v)) as its principal business;

any company whose amount of stated capital or total amount of contribution is not more than fifty million yen and any company or individual whose number of regular employees is one hundred or less, which operates as its principal business, business belonging to service business (excluding the business types provided by Cabinet Order pursuant to item (v));

any company whose amount of stated capital or total amount of contribution is not more than fifty million yen and any company or individual whose number of regular employees is fifty or less, which operates as its principal business, business belonging to retail business (excluding the business types provided by Cabinet Order pursuant to the following item);

any company whose amount of stated capital or total amount of contribution is not more than the amount provided by Cabinet Order for each of its business types and any company or individual whose number of regular employees is the number provided by Cabinet Order or less for each of its business types, which operates as its principal business, business belonging to any of the business types provided by Cabinet Order; or

of cooperative partnerships and other partnerships established pursuant to special Acts with the principal purpose of cooperation in business (including federation of partnerships), any partnership which has a scale comparable to the scale provided in each of the preceding items for the individual business type in the preceding items as provided by Cabinet Order.

When the Japan Fair Trade Commission orders an enterprise to pay a surcharge pursuant to the provisions of paragraph (1), if the enterprise has not responded to the request from the Japan Fair Trade Commission or the staff who engage in the administrative affairs pertaining to investigations into the case concerned with the violation (such as the investigators designated pursuant to Article 47, paragraph (2)) to report facts or submit materials regarding facts concerned with the violation that should form the basis for the calculation of the surcharge for the violation, the Japan Fair Trade Commission may order the enterprise to pay the surcharge, by estimating the amount listed in each of the items in paragraph (1) for the period of implementation where the facts that should form the basis for the calculation of the surcharge cannot be ascertained because the enterprise has not reported the facts and submitted the materials regarding the facts, using a reasonable method provided in the Rules of the Japan Fair Trade Commission, in light of materials obtained from the enterprise, its specified non-violating supplying subsidiary companies, etc., its specified non-violating purchasing subsidiary companies, etc. or other enterprises that supply or receive goods or services concerned with the violation, or other materials.

If an enterprise is ordered to pay a surcharge pursuant to the provisions of paragraph (1) of the preceding Article, the term "the total sum" in the paragraph (including the cases when these are applied pursuant to paragraph (2) of the Article following the deemed replacement of terms) is deemed to be replaced with "the total sum, multiplied by 1.5,", if the enterprise falls under any of the following items provided, however, that this does not apply if the enterprise is subject to the application of the provisions of paragraph (3).

a person that was subject to an order pursuant to the provisions of paragraph (1) of the preceding Article or paragraph (1) or (2) of Article 7-9 (limited to when the order has become final and binding), a notice pursuant to the provisions of paragraph (7) of the following Article or paragraph (3) of Article 7-7, or a decision pursuant to paragraph (2) of Article 63 (hereinafter referred to in this paragraph as "payment order, etc.") within the ten years prior to the investigation start date concerned with the relevant violation (limited to a person committing a violation on or after the day of the payment order, etc.);

a person whose wholly owned subsidiary company was subject to a payment order, etc. (limited to the case when the wholly owned subsidiary company was that of the person on the date of the payment order, etc.) within the ten years prior to the investigation start date concerned with the relevant violation (limited to a person committing a violation on or after the day of the payment order, etc.), excluding persons who fall under the previous item; or

a corporation who is an enterprise who merged with another corporation who is an enterprise subject to a payment order, etc. within the ten years prior to the investigation start date concerned with the relevant violation, or succeeded through a transfer or split to all or part of the business concerned with the violation related to the payment order, etc. from another corporation who is an enterprise subject to a payment order, etc. within the ten years prior to the investigation start date concerned with the relevant violation (limited to a person committing the violation on or after the date of the merger, transfer or split), excluding persons that fall under the previous item (i) or (ii).

If an enterprise is ordered to pay a surcharge pursuant to the provisions of paragraph (1) of the preceding Article, the term "the total sum" in the paragraph (including the cases when these are applied pursuant to paragraph (2) of the Article following the deemed replacement of terms) is replaced with "the total sum, multiplied by 1.5,", if the enterprise falls under any of the following items provided, however, that this does not apply if the enterprise is subject to the application of provisions of the following paragraph:

a person that planned to engage in a violation and required, requested or instigated another enterprise to engage in, or not to refrain from committing a violation, either individually or in concert with others, thereby causing the other enterprise to engage in, or fail to refrain from committing a violation;

a person that has, at the request of another enterprise, designated a price, supply volume, purchase volume, market share or transaction counterparty in relation to the goods or services involved in the violation, continuously to other enterprises, either individually or in concert with others; or

beyond the person listed in the preceding two items, a person that has committed any of the following acts to materially facilitate the relevant violation, either individually or in concert with others:

requiring, requesting, or instigating another enterprise to perform, or not to discontinue, the relevant violation;

designating price, supply volume, purchase volume, market share, or a transaction counterparty to another enterprise in connection with the goods or services involved in the violation, or about business activities constituting the violation (excluding designations exclusively about one's own transactions);

requiring, requesting, or instigating another enterprise to conceal or disguise at the time of the Japan Fair Trade Commission investigation, the materials related to the relevant violation or the facts that should be the basis of its calculation of the surcharge relating to the relevant violation or to report false facts or submit false materials related to the relevant facts at the time of the investigation; or

requiring, requesting, or instigating another enterprise not to report facts or submit materials pursuant to the procedures provided in the following Article, paragraph (1), item (i), paragraph (2), items (i) through (iv) or paragraph (3), item (i) or (ii), or not to apply for consultation pursuant to the procedures provided in Article 7-5, paragraph (1).

If an enterprise is ordered to pay a surcharge pursuant to the provisions of paragraph (1) of the preceding Article, the term "the total sum" in the paragraph (1) of the article (including the cases when these are applied pursuant to paragraph (2) of the Article following the deemed replacement of terms) is replaced with "the total sum, multiplied by 2,", if the enterprise falls under any items of paragraph (1) and any items of the preceding paragraph.