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ฉบับพิเศษ ประจำ�ปี 2564

Agency Seal case. The most obvious way out was to differentiate the cases based upon
the applicable article. The Court concluded that the 1953 Asahi Newspaper Co. case

was based on former Article 4 of the AMA. The Social Insurance Agency Seal case had
to be decided based upon Article 3 in combination with Article 2(6) of the AMA.

The conceptualization of the latter is slightly different than the former Article 4 of
the AMA. Unlike former Article 4 of the AMA, Article 3 in combination with Article 2(6)
of the AMA explicitly requires finding a restraint of competition. Therefore, the Court

held that it would be awkward to limit the understanding of an enterprise to a competitor.
Once this position was taken, the Court could take the following position for

the application of Article 2(6) of the AMA. First, enterprises could be active in different
55
fields of trade. Second, there is no need that the enterprises are in the same or similar
competitive relationship. Third, mutual restraint does not require a restraint in the same

manner. It is sufficient that free business activities of the enterprise are compromised
by taking part in the anticompetitive conduct - collusive bidding in this case.
Hence, the Court judged that Hitachi is an enterprise “effectively” or “in essence”
56
57
“in a competitive relationship with the other participants.”
58
The stance taken by the Tokyo High Court in the Social Insurance Agency Seal

case has been followed by the JFTC in two bid rigging cases: The Video Machine case
and the Okinawa Aluminum Sash case. Moreover, the Guideline under the Antimonopoly
59
Act concerning Distribution and Trade Practices adopted language indicating that it is
somehow sufficient that the business activities of each of these enterprises are limited
(not necessarily in the same way) and that anticompetitive conduct should be directed

to the achievement of a common purpose. 60

55 Seryo (2004), p. 12.
56 Wakui (2018), p. 79.
57 Kameoka (2014), p. 45.
58 Wakui (2018), p. 79.
59 Seryo (2004), p. 12; Kameoka (2014), p. 45.
60 This is especially reflected in note 2 of the guideline. Available at: https://www.jftc.go.jp/en/legislation_
gls/imonopoly_guidelines_files/DistributionSystemsAndBusinessPractices.pdf. Accessed 15 December 2020.

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