Chapter 6: Abuse of dominance
Abuse of dominance is the area where any harmonisation of the approaches taken by the EU and Japan would be rather difficult. The Japanese rules are generally more complicated than the EU rules, as in Japan there are two categories of regulated unilateral conduct, namely, private monopolisation and abuse of a superior bargaining position. Since the latter category may trigger the antimonopoly rules even in the absence of dominance, an important difference between the Japanese and EU regimes becomes immediately apparent. Furthermore, the concept of ëprivate monopolisationí is somewhat narrower than the abuse of dominance under Article 102 TFEU, which applies to both private and public undertakings, so long as the defendant is engaged in an economic activity. Furthermore, in Japan private monopolisation and abuse of a superior bargaining position are treated separately in terms of enforcement. The prohibition of private monopolisation is set forth in Articles 2 and 3 AMA, and was not frequently enforced until recent times. But the number of cases in relation to exclusionary monopolisation in utility sectors is gradually increasing, together with the liberalisation of the public sectors. Article 2(5) AMA defines ëprivate monopolisationí as the situation where an undertaking, singly or in conspiracy with other undertakings, excludes or controls other companiesí business activities and thereby substantially restricts competition in a manner contrary to the public interest. Private monopolisation refers to unauthorised monopolisation as opposed to traditionally authorised monopolisation in public sectors, such as electricity, postal services and so on.
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