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วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

that “a contract, an agreement, or any other means irrespective of its name” should be
considered when pricing behavior of enterprises is being judged. Crucial in this judgment

of whether a contract, an agreement, or any other means irrespective of its name exists,
and so the existence of a cartel, is the communication of intention. The communication

of intention does not require the explicit exchange of information between
the competitors. The Tokyo High Court has stated that it is possible to deduct
the communication of intention from all circumstances before and after the price increase.
Moreover, communication of intention can even be presumed. Such a presumption can

only be made if there has been an interaction between the competitors focusing on
competitive sensitive information and the competitors implement a same or similar

price increase.
Agreements in the broadest sense on the price are further subject to a substantiality
test. The JFTC has the burden to prove that an agreement’s restraint is substantial. Since

hardcore agreements seldom positively contribute to the economy, the substantiality
“may be presumed” and this to lessen the burden of the JFTC. These careful wordings
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of Masako Wakui stand in contrast with the terminology used by various other Japanese
scholars. The creation of a rebuttable presumption that hardcore cartels involve
substantial restraints is often referred to as the adoption of a quasi per se rule. Wakui’s
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more careful stance can be explained by her identification of another option for the
JFTC to construct a substantial effect. A substantial effect can be presumed when large
companies are involved in the hardcore cartel. To achieve this goal, it is important that

the JFTC tweaks the understanding of the relevant product market. This, as will be
explained below, is possible since the relevant product market for hardcore cartels is
not done by looking at substitutes for the product of which the prices are fixed. Rather,

the JFTC has developed a practice to look at the scope of the agreements. By pointing
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out that the current practice tends to follow the latter approach, Wakui sheds a light on
the market share that could be regarded as triggering a substantial effect. The JFTC
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31 Wakui (2018), p. 51.
32 Inoue (2012), p. 58. Hayashi, Wu and Ma (2020), p. 47.
33 Wakui (2018), p. 53.
34 Wakui (2018), pp. 90-91.

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