Masayuki OCHIKA
*Attorney at Law, Osaka Bar Association
Consumer and the Using of the Anti-monopoly Law
of Japan
Masayuki OCHIKA*
1. Introduction In the autumn of 1989, some lawyers in Osaka and Kyoto began to make researches and discussions on the Anti-Monopoly Law and fair trading from the consumer's point of view and established the study group about the Anti-Monopoly Law and fair trading (refferred to as the “study group" hereinbelow). Its participants had the mutual understanding that lawyers formerly had put their emphasis on the activities to remedy the damages of consumer suffered from dishonest tradings such as Toyota shoji trading case, and that they attached no importance to the normal activities of enterprise and economic structure which may influence the consumer's interests.
I would introduce some cases which the study group handled and examined how to apply the Anti-Monopoly Law for the purposes of the cosumer's interests.
2. Simultaneous raise of beer price by main manufacturers On the 27th day of February in 1990, Sapporo Breweries Ltd. announced the raise of beer price and three other manufacturers of Kirin Brewery Co., Ltd., Asahi Breweries Ltd. and Suntory Limited raised prices by the 6th in May.
The difference of raise of prices of the manufacturing price, the recommended whole sale price, and the recommended retail price of the four were all same.
On the contrary, Each of the operating profits of the four in 1989 were different such as 39.3 billion yen of Kirin and 3.7 billion yen of Sapporo.
Moreover, the retailers guild and wholesalers guild of liquors expressed their opinion that they should maintain their margin on some tradepapers and petitioned the manufacturers and the National Tax Administration Agency for their margins.
We thought that the raise was a cartel and filed a complaint to the Fair Trade Commission (the “FTC") that the four was in violation for the Article 3 of the Anti-Monopoly law.
In May of 1990, the FTC ordered the four to provide reasons for the simultaneous price increases according to the provision in the Article 18-2 and published the reports in September.
Following the request by the FTC, the four announced on newspapers that the recommended price should not be binding upon the retail price at the counter.
Consequently, liquor shops and supermarkets, as well as discount house, began to discount.
3. Simultaneous change of the rates of interests of banks loans In the August of 1991, the study group members set the “emergency telephones" in Osaka about interest rates of bank loans and hear various complaints of the people who borrows the money from banks.
City banks negotiated with their customers for the amendments of interest rates of loans because of the increase of those rates of raised funds.
The banks raised the interest rates of loans of some customers without their consents.
The interest rates had linked with the long-term prime rate decided by long-term credit banks before, but the banks adopted the new interest rates which linked with those of the short-term credit market.
According to the emergency telephone calls which we received, It came to 60 in number that the customers were requested to change into the new interest rates.
Some of them entrusted us to negotiate with banks and we thought that the banks had abused their dominant position over small or medium-sized enterprise and individuals and filed a complaint to the FTC that it should recommend to the banks to take appropriate measures. we also started to negotiate with banks.
We thought that 13 of city banks reached the agreement on interest rates which came under the cartel because each of them simultaneously amended the rates, and we filed the complaint to the FTC.
4. Unfair compensation of damages of some large-scale investers by securities companies Four major securities companies including the Nomura Securities Co., Ltd. compensated for the loss which large customers suffered during the period beginning in 1987 and ending in June of 1991.
Some members of the study group filed a complaint to the FTC that such activities came under the discriminatory dealing (General Designation 4) of unfair business practices or the unreasonable inducemnet (General Designation 9).
5. Unfair trading by NTT (Nippon telephone and telegraph Co., Ltd) In 1985, Japan Telegraph and Telephone Public Corp. was privatized into NTT which was a joint-stock company and some portion of its shares were held by the government.
NTT had not been permitted to sell terminal machine before, since then but it was permitted to do so as a subsidiary business.
Consequently, the existing retailers of terminals had to begin to compete with NTT.
Then, a lot of unfair dealings by NTT were reported to the association of the retailers.
For example, NTT induced customers to buy the terminals such as button telephones and PBX (swichboards in premises) as a substitute for giving a good telephone number to them.
In June of 1993, the competent committee of the Kyushu district headquarter of the association of retailers prepared the papers on the unfair dealing cases by NTT and submitted it to the FTC.
The committee asked us to help, and we studied the cases in our group and filed a supplementary complaint to the FTC in December of 1993.
6. All of the defendants of the complaint set out above are large enterprise and the complainants are consumer, citizens, investers and small or medium-sized enterprise. In each of case, we felt that something was unfair at first and started to research and discuss, and succeeded in applying the relevant provision of the Anti-Monopoly law. The law should be applied much more for the consumer's interests. It is important to interpret the provisions and to study decisions by the FTC and courts, above all, to feel that something is unfair.
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