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fixing. Subsection 3 of Article 101 TFEU allows for considering consumer benefits in
a price fixing scheme, and this to introduce a balance of interests that also Ezrachi and
29
Stucke seem to advocate for. 30

The situation in Japan is still different. The unique conceptualization of
the AMA may prevent a swift application of the law to hub-and-spoke like cartels.

3. Price fixing under the japanese Antimonopoly Law

3.1 The Application Scope of Article 3 of the Antimonopoly Law

Price fixing in Japan is regulated by Article 3 of the AMA. Article 3 of the AMA
stipulates that “[a]n enterprise must not effect private monopolization or unreasonable

restraint of trade.” The unreasonable restraint of trade prong of this article is further
explained in Article 2 (6) of the AMA. This provision specifies that:

The term “unreasonable restraint of trade” as used in this Act means such business

activities, by which any enterprise, by contract, agreement or any other means
irrespective of its name, in concert with other enterprises, mutually restrict or
conduct their business activities in such a manner as to fix, maintain or increase

prices, or to limit production, technology, products, facilities or counterparties,
thereby causing, contrary to the public interest, a substantial restraint of
competition in any particular field of trade.

The combination of Article 3 and 2(6) of the AMA implies that agreements
would be declared illegal when its substantially restricts business activities in a particular

field of trade. To be illegal, it is further required that the agreement should also be
contrary to public policy and mutually restrict the business activities among competitors.

To make the anti-cartel law efficient, the AMA has a broad understanding of
how enterprises can reach an agreement on price fixing. Article 2(6) of the AMA states

29 Nowag (2018), p. 20.
30 Ezrachi and Stucke (2016), p. 54.

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