Page 154 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

Article 3 of the AMA only applies to horizontal agreements. Vertical agreements,
no matter how serious anti-competitive harm they cause, are outside the scope of

application. A less cited consequence is the inability to apply the unreasonable restraint
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prong of Article 3 of the AMA to non-competing enterprises that are playing a role in

an anti-competitive agreement. This means, on the one hand, that the JFTC would not
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be able to punish a facilitator of a price fixing agreement, and, on the other hand, that
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Article 3 of the AMA would not be applicable to enterprises that have different
restrictions.
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The JFTC has been consistent in applying Article 3 in combination with Article

2(6) of the AMA to pure horizontal agreement. In pure horizontal agreements, non-
competitors would not participate. This view has been upheld for 40 years. 53

A Tokyo High Court decision of 1993 is said to have changed the position.
In the Social Insurance Agency Seal case, the Tokyo High Court had to decide whether
a bid rigging scheme in which a non-qualified bidder, Hitachi Information Systems

(Hitachi), could be included into an action based on Article 3 of the AMA. In the end,
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as a non-qualified bidder, Hitachi held that it was not in competitive relationship with
the three bidding firms and should therefore not be held liable under Article 3 of the

AMA. Furthermore, Hitachi argued that it was not operating its business in the same
particular field of trade as the bidding firm. The Tokyo High Court argued that none of
these arguments should be considered valid.

The desire to come up with another reasoning than in the Asahi Newspaper Co.
case, requested the Tokyo High Court to differentiate that case from the Social Insurance

49 Wakui (2018), pp. 77-78; Seryo (2004), p. 11.
50 Wakui (2018), p. 78.
51 For the absence of a discussion on this issue Wakui (2018), pp. 76-78; Kameoka (2014), pp. 37-56;
Inoue (2012), pp. 59-64; Seryo (2004), pp. 11-12.
52 Kameoka (2014), p. 50-51 (giving the example of a cartel member remaining passive). Another example
of a different restriction would be if one enterprise would deal in territory A and the other in territory B, despite this
being one type of a restriction, i.e. a territorial division.
53 Wakui (2018), p. 78.
54 Tokyo High Court (Social Insurance Agency Seal Case), 14 December 1993, 46-III Koto Saibansho
Keiji Hanreishu 322.

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