Japan: Merger Control Comparative Guide

Last Updated: 6 September 2019
Article by Kentaro Toda
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1 Legal and enforcement framework

1.1 Which legislative and regulatory provisions govern merger control in your jurisdiction?

Chapter 4 of the Act on Prohibition of Private Monopolisation and Maintenance of Fair Trade (Act 54 of 14 April 1947, as amended) governs merger control in Japan. The Guidelines on the Application of the Anti-monopoly Act for Reviewing Business Combinations (31 May 2004, amended on 14 June 2011) explain which kinds of business combinations will be considered to cause substantive restraints to market competition.

1.2 Do any special regimes apply in specific sectors (eg, national security, essential public services)?

No, there are no special regimes for specific sectors.

1.3 Which body is responsible for enforcing the merger control regime? What powers does it have?

The Japan Fair Trade Commission (JFTC) is responsible for enforcing the merger control regime. The JFTC is an external agency of the Cabinet Office and is independent from any governmental agencies regarding its operation.

2 Definitions and scope of application

2.1 What types of transactions are subject to the merger control regime?

Under the Act on Prohibition of Private Monopolisation and Maintenance of Fair Trade, the types of transactions which are subject to the merger control regime are share acquisitions, mergers, joint share transfers, company splits and acquisitions of business.

2.2 How is ‘control' defined in the applicable laws and regulations?

Under the Act on Prohibition of Private Monopolisation and Maintenance of Fair Trade, ‘control' is not used as a concept relevant to evaluating whether a transaction is reportable.

2.3 Is the acquisition of minority interests covered by the merger control regime, and if so, in what circumstances?

If the acquisition of minority interests is based on one of the types of transactions which are subject to the merger control regime and the transaction meets the jurisdictional thresholds, the transaction will be subject to the merger control regime.

2.4 Are joint ventures covered by the merger control regime, and if so, in what circumstances?

There are no specific rules for joint ventures. Although the establishment of a joint venture itself is not subject to the merger control regime, if the business concentration constitutes any of the types of transactions which are subject to the merger control regime and meets the jurisdictional thresholds, the transaction will be subject to the merger control regime.

2.5 Are foreign-to-foreign transactions covered by the merger control regime, and if so, in what circumstances?

Yes, foreign-to-foreign transactions are covered by the merger control regime. The same criteria apply to foreign-to-foreign transactions.

2.6 What are the jurisdictional thresholds that trigger the obligation to notify? How are these thresholds calculated?

The thresholds vary based on the types of the transactions, as follows.

Share acquisitions: When a company acquires shares in another company exceeding either 20% or 50% of the ratio of the voting rights of the target, the transaction will be notifiable if:

  • the acquirer's total amount of domestic sales (explained below) is more than JPY 20 billion; and
  • the target and its subsidiaries (not including entities which will remain with the seller) have a domestic turnover of more than JPY 5 billion.

Mergers: A merger will be notifiable if:

  • the domestic turnover of one party is more than JPY 20 billion; and
  • the domestic turnover of another party is more than JPY 5 billion.

Joint share transfers: A transaction will be notifiable if:

  • the domestic turnover of one party is more than JPY 20 billion; and
  • the domestic turnover of another party is more than JPY 5 billion.

Company splits: There are two types of company splits which will be notifiable if the relevant transaction exceeds the thresholds.

A joint incorporation type of company split will be notifiable if:

  • a party that intends to split the whole business has domestic turnover of more than JPY 20 billion; and
  • either:
    • another party that intends to split the whole business has domestic turnover of more than JPY 5 billion; or
    • another party intends to split a substantial part of a business which generates more than JPY 3 billion.

It will further be notifiable if:

  • a party intends to split a substantial part of the business which has domestic turnover of more than JPY 10 billion; and
  • either:
    • another party that intends to split the whole business has domestic turnover of more than JPY 5 billion; or
    • another party intends to split a substantial part of the business which generates more than JPY 3 billion.

An absorption type of company split will be notifiable if:

  • the succeeding company has domestic turnover of more than JPY 20 billion; and
  • either:
    • another party that intends to transfer its whole business has domestic turnover of more than JPY 5 billion; or
    • another party intends to split a substantial part of a business which generates more than JPY 3 billion.

Additionally, such a transaction will be notifiable if:

  • a succeeding company has domestic turnover of more than JPY 5 billion; and
  • either:
    • another party that intends to split the whole business has domestic turnover of more than JPY 20 billion; or
    • another party intends to split a substantial part of the business which generates more than JPY 10 billion, then the transaction will be notifiable.

Acquisitions: If the acquirer's domestic turnover is more than JPY 20 billion and the target's business or business-related assets exceed the following thresholds, the transaction will be notifiable:

  • The acquirer will acquire the whole business of a target with a domestic turnover of more than JPY 3 billion;
  • The acquirer will acquire a substantial part of a target with a domestic turnover of more than JPY 3 billion; or
  • The acquirer will acquire the whole part or a substantial part of the business-related fixed assets of a target with a domestic turnover of more than JPY 3 billion.

The thresholds are calculated based on the total amount of domestic sales of the last complete financial year. Domestic turnover is calculated by aggregating all domestic sales of the notifying company's final parent company and its subsidiaries. When calculating domestic turnover, both direct and indirect sales in and into Japan during the most recent financial year are included. However, intra-group captured sales should be excluded.

2.7 Are any types of transactions exempt from the merger control regime?

There are no exemptions from the merger control regime, except in situations involving combinations between members of the same corporate group.

3 Notification

3.1 Is notification voluntary or mandatory? If mandatory, are there any exceptions where notification is not required?

Yes, notification is mandatory.

3.2 Is there an opportunity or requirement to discuss a planned transaction with the authority, informally and in confidence, in advance of formal notification?

Yes, there is a pre-notification consultation procedure through which the parties can discuss the planned transaction with the Japan Fair Trade Commission (JFTC) informally and in confidence. In complex cases which may involve substantive issues, it is advisable for the parties to utilise this pre-notification consultation procedure to avoid unexpected delays in the JFTC's review.

3.3 Who is responsible for filing the notification?

If the transaction is a share acquisition or acquisition of a business, the acquirer is responsible for filing the notification. If the transaction is a merger, a joint share transfer or a company split, all parties are jointly responsible for filing the notification.

3.4 Are there any filing fees, and if so, what are they?

No, the JFTC does not charge any filing fees.

3.5 What information must be provided in the notification? What supporting documents must be provided?

The information to be provided in the notification includes the following:

  • the purpose, reasons, details and method of the transaction;
  • an outline of the notifying companies;
  • an outline of the corporate group to which each notifying company belongs;
  • an outline of the target or the company to be established by the transaction; and
  • the position of the notifying companies and the target or the company to be established by the transaction in the relevant market, including the competing relationship or transactional relationship between the notifying companies and the target or the company to be established by the transaction.

The supporting documents to be provided include the following:

  • the articles of incorporation of the notifying companies;
  • a copy of the definitive agreement for the transaction or the document which verifies the decision of the notifying company in relation to the transaction (a draft of the definitive agreement is permissible);
  • the most recent business reports and financial statement of the notifying companies;
  • the list of shareholders of the notifying companies;
  • a copy of the minutes of the shareholders' meeting or partners' meeting at which the transaction was approved, where such approval is required;
  • a securities report prepared by the ultimate parent company of the corporate group to which the notifying companies belong or an equivalent; and
  • powers of attorney issued by the notifying companies.

3.6 Is there a deadline for filing the notification?

No, there are no deadlines for filing the notification. However, the notification should be filed in the 30 calendar days before closing of the transaction, for the following reasons.

Under the Act on Prohibition of Private Monopolisation and Maintenance of Fair Trade, no company that gives notification may close a transaction until a 30-day waiting period from the date of acceptance of the notification has expired. However, upon the notifying party's request and where the JFTC finds this necessary, it may shorten the relevant period accordingly.

3.7 Can a transaction be notified prior to signing a definitive agreement?

Yes, a transaction can be notified prior to signing a definitive agreement, provided that a draft of the definitive agreement is submitted together at the time of notification and a copy of the signed definitive agreement is submitted promptly after signing.

3.8 Are the parties required to delay closing of the transaction until clearance is granted?

Yes. As mentioned in question 3.6, no company that has given notification may close the transaction until a 30-day waiting period or a shortened period from the date of acceptance of notification has expired. Therefore, the parties must delay closing of the transaction until clearance is granted.

3.9 Will the notification be publicly announced by the authority? If so, how will commercially sensitive information be protected?

The notification itself will not be publicly announced by the JFTC.

Once the JFTC has cleared the transaction, and unless this would cause any inconvenience, it will publicly announce:

  • the date of notification;
  • the names of the relevant parties;
  • the main business of the relevant parties;
  • the type of business combination;
  • the relevant threshold of share transfer (if applicable);
  • the date of clearance; and
  • whether the waiting period has been shortened.

The JFTC also annually publishes the results of any major business combination cases. In doing so, it will consult with the relevant parties regarding the content of such publication, so that commercially sensitive information is deleted accordingly.

At the beginning of the Phase 2 review, the JFTC will publicly announce that it has asked the relevant parties to provide further reports and will accept opinions from third parties. In this announcement, the JFTC will not publish commercially sensitive information.

4 Review process

4.1 What is the review process and what is the timetable for that process?

A corporation that plans to notify the Japan Fair Trade Commission (JFTC) concerning a business combination plan may enter into a pre-notification consultation with the JFTC regarding how to make entries on the notification form, how the position of the notifying corporation in the domestic market should be described and so on.

On receipt of a notification form by the JFTC, the notifying corporation is prohibited from effecting the transaction until the 30-day waiting period from the date of receipt of such notification has expired. However, usually upon the notifying party's request, and where it finds this necessary, the JFTC may shorten this period accordingly.

During the waiting period (standard or shortened), the JFTC will normally either:

  • find that the business combination is not problematic in light of the Act on Prohibition of Private Monopolisation and Maintenance of Fair Trade; or
  • find that more detailed review is necessary and request submission of the necessary reports, information or materials.

In the first case above, the JFTC will give notification to the effect that it will not issue a cease and desist order.

In the second case, the period during which the JFTC may give notice prior to a cease and desist order shall be extended up to 120 days after receipt of the notification or 90 days after the date of receipt of all reports, whichever is later.

4.2 Are there any formal or informal ways of accelerating the timetable for review? Can the authority suspend the timetable for review?

There is a formal way to accelerate the timetable for Phase 1 review. If the notifying party submits to the JFTC a request to shorten the 30-day waiting period, the JFTC will usually shorten this period in cases where business combinations are not problematic in light of the Act on Prohibition of Private Monopolisation and Maintenance of Fair Trade.

The authority cannot suspend the timetable for review. Regarding Phase 2 review, however, the JFTC request submission of necessary reports, information or materials, and the period during which the JFTC may give notice prior to a cease and desist order will be extended to 90 days after receipt of all reports. Therefore, the JFTC may extend the timetable for Phase 2 review by requesting the submission of necessary reports, information or materials.

4.3 Is there a simplified review process? If so, in what circumstances will it apply?

There is no simplified review process. However, as mentioned in question 4.2, the JFTC will usually shorten the waiting period in cases where business combinations are not problematic in light of the Act on Prohibition of Private Monopolisation and Maintenance of Fair Trade.

4.4 To what extent will the authority cooperate with its counterparts in other jurisdictions during the review process?

The JFTC will cooperate with its counterparts in other jurisdictions during the review process.

For example, in fiscal year 2017, the JFTC cooperated with EU and Korean counterparts in relation to the business combination of Qualcomm River Holdings BV and NXP Semiconductors NV; with US and EU counterparts in relation to the business combination of Broadcom Limited and Brocade Communications Systems, Inc; and with EU and Chilean counterparts in relation to the business combination of Kawasaki Kisen Kaisha, Ltd, Mitsui OSK Lines, Ltd and Nippon Yusen Kabushiki Kaisha.

4.5 What information-gathering powers does the authority have during the review process?

The JFTC has no formal information-gathering powers during the Phase 1 review process, but does have formal information-gathering powers to request the submission of necessary reports, information and materials during the Phase 2 review process.

4.6 Is there an opportunity for third parties to participate in the review process?

Third parties can informally submit their opinions to the JFTC during the review process.

Particularly during the Phase 2 review process, any third party with an opinion on a business combination plan which has been publicly announced by the JFTC can formally submit a written opinion to the JFTC within 30 days of such publication.

4.7 In cross-border transactions, is a local carve-out possible to avoid delaying closing while the review is ongoing?

There have been no publicised cases in which the JFTC has permitted a local carve-out to close a transaction in Japan while the review in other jurisdictions is ongoing.

4.8 What substantive test will the authority apply in reviewing the transaction? Does this test vary depending on sector?

The JFTC reviews individual transactions in light of whether competition in any particular field of trade will be substantially restrained. For example, to decide whether a horizontal business combination may serve to substantially restrain competition in a particular field, the following determining factors are given comprehensive consideration:

  • the market positions of the parties and their competitors;
  • imports;
  • market entry;
  • competitive pressure from related or neighbouring markets;
  • competitive pressure from users;
  • overall business capabilities;
  • efficiency; and
  • the financial strength of the parties.

The Guidelines on the Application of the Anti-monopoly Act for Reviewing Business Combinations include certain safe harbour provisions for horizontal business combinations, and for vertical and conglomerate business combinations, based on the Herfindahl-Hirschman Index (HHI). For example, for horizontal business combinations, the criteria suggested by the Merger Guidelines are as follows:

  • The HHI after the business combination is not more than 1,500;
  • The HHI after the business combination is more than 1,500 but not more than 2,500 and the increase in HHI is not more than 250; or
  • The HHI after the business combination is more than 2,500 and the increase in HHI is not more than 150.

This test does not vary depending on sector.

4.9 Does a different substantive test apply to joint ventures?

No. There is no specific substantive test for joint ventures and, in principle, the substantive test set out in question 4.8 also applies to joint ventures.

4.10 What theories of harm will the authority consider when reviewing the transaction? Will the authority consider any non-competition related issues (eg, labour or social issues)?

The Act on Prohibition of Private Monopolisation and Maintenance of Fair Trade and the Guidelines on the Application of the Anti-monopoly Act for Reviewing Business Combinations do not address theories of harm directly, and the JFTC reviews the transaction in light of whether competition in any particular field of trade would be substantially restrained.

In addition, the act and the guidelines do not expressly include non-competition issues to be considered in the review process.

5 Remedies

5.1 Can the parties negotiate remedies to address any competition concerns identified? If so, what types of remedies may be accepted?

Yes. The parties can propose behavioural and/or structural remedies to the Japan Fair Trade Commission (JFTC) at any time during the reviewing period. In principle, structural measures such as the transfer of business are preferable. However, when such primary measures are not feasible, there may be cases in which certain behavioural measures are accepted under certain circumstances.

5.2 What are the procedural steps for negotiating and submitting remedies? Can remedies be proposed at any time throughout the review process?

As mentioned in question 5.1, the parties can propose remedies to the JFTC at any time during both the Phase 1 and Phase 2 review.

In principle, the remedies should be completed before the combination is implemented. If the remedies are to be completed without fail after implementation of the combination, then an appropriate and definite deadline for completion should be imposed.

5.3 To what extent have remedies been imposed in foreign-to-foreign transactions?

As long as competition in any particular field of trade which geographically includes Japan is substantially restrained, remedies are required, even for foreign-to-foreign transactions. The JFTC handles foreign-to-foreign transactions in the same way as domestic transactions and will not hesitate to order remedies regarding foreign-to-foreign transactions.

6 Appeal

6.1 Can the parties appeal the authority's decision? If so, which decisions of the authority can be appealed (eg, all decisions or just the final decision) and what sort of appeal will the reviewing court or tribunal conduct (eg, will it be limited to errors of law or will it conduct a full review of all facts and evidence)?

In order to challenge a cease and desist order imposed by the Japan Fair Trade Commission (JFTC), the parties may file an appeal for revocation of the order with the Tokyo District Court within six months of the date of becoming aware of the order or within one year of the date on which the certified copy of the order is received.

The decision of the Tokyo District Court may in turn be appealed to the Tokyo High Court within two weeks of the date on which service of the judgment document is received.

The parties may appeal the decision of the Tokyo High Court or file a petition of acceptance of final appeal to the Supreme Court within two weeks of the date on which service of a judgment document is received.

All decisions of the JFTC can be appealed and the court will conduct a full review of all facts and evidence.

6.2 Can third parties appeal the authority's decision, and if so, in what circumstances?

The Act on Prohibition of Private Monopolisation and Maintenance of Fair Trade does not specify whether third parties can appeal the JFTC's decision. Under the Administrative Case Litigation Act, an action for revocation of an original administrative disposition on appeal may be filed only by a person that has a legal interest to seek revocation of the original administrative disposition.

However, the circumstances in which the court will rule that third parties have sufficient legal interest to appeal a JFTC decision are unclear, as there have been no such cases to date.

7 Penalties and sanctions

7.1 If notification is mandatory, what sanctions may be imposed for failure to notify? In practice, does the relevant authority frequently impose sanctions for failure to notify?

A criminal fine of up to JPY 2 million may be imposed for failure to notify. This fine can be imposed both on the parties that ought to have notified and on any representative or employee who is responsible for the failure. However, there are no cases in which such a penalty has been imposed.

7.2 If there is a suspensory obligation, what sanctions may be imposed if the transaction closes while the review is ongoing?

A criminal fine of not more than JPY 2 million may be imposed for failure to comply with waiting periods. This fine can be imposed both on the notifying parties and on any representative or employee who is responsible for the failure.

7.3 How is compliance with conditions of approval and sanctions monitored? What sanctions may be imposed for failure to comply?

The Japan Fair Trade Commission (JFTC) generally requires regular reports in order to ensure that the parties are complying with the terms of any remedies on which clearance was based. Parties that fail to implement a remedy on which clearance was based can be subject to a cease and desist order. Imprisonment with work for up to two years or a fine of up to JPY 3 million or a person and up to JPY 300 million for a legal person may be imposed for failure to comply with a cease and desist order which has become final and binding.

8 Trends and predictions

8.1 How would you describe the current merger control landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

According to the latest data published by the Japan Fair Trade Commission (JFTC), a total of 321 filings were made in fiscal year 2018 (April 2018 to March 2019). Of those cases, 315 cases were cleared in Phase 1 (four cases were withdrawn by the notifying parties in Phase 1) and two cases were reviewed in Phase 2.

As regards foreign-to-foreign transactions, 34 cases were filed during the fiscal year 2018.

A new commitment procedure entered into force on 30 December 2018. With respect to merger control, where the JFTC finds that a proposed transaction would substantially restrain competition in a particular field of trade, the JFTC can now send a notice to the parties to the transaction inviting them to submit proposed commitments. The parties have 60 days from receipt of the notice in which to submit commitments. If the JFTC finds that the proposed commitments are sufficient to eliminate the JFTC's concerns and expects they will be implemented, it shall issue a conditional clearance decision.

9 Tips and traps

9.1 What are your top tips for smooth merger clearance and what potential sticking points would you highlight?

In a horizontal business combination with a high market share, the review period tends to be extended. For example, the acquisition of shares in Ju-Hachi bank by Fukuoka Financial Group took over two years from receipt of notification to clearance. This trend is expected to continue in the future, so in critical cases it is important to utilise pre-notification consultation proactively and appropriately. In the pre-notification consultation, the parties can provide materials in order to explain to the JFTC the outline of the case and the market definition from their perspective, and demonstrate that the proposed transaction will not substantially restrain competition in any particular field of trade.

In addition, there has recently been an increase in cases in which economic analysis is used to define the market and to determine whether competition would be substantially restrained in the market. It would therefore be worthwhile to obtain an economist's opinion as part of the pre-notification consultation.

Also, in critical cases evidence based on interviews and questionnaires from competitors and customers may have a significant impact on the Japan Fair Trade Commission's (JFTC) decision. Such interviews and questionnaires will be conducted by the JFTC, but the parties should also confirm the survey method and the content of the questionnaires.

In summary, the parties should put together a detailed schedule, prepare explanatory materials and economic analysis, and actively communicate with the JFTC throughout the review period, including the pre-notification consultation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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