Clifford Chance

In line with Japan's greenhouse gas emissions goals, the Green Guidelines provide more than 70 case examples and explain whether various activities to achieve a green society raise any antitrust issues.

Summary of the Green Guidelines

On 31 March 2023, the Japan Fair Trade Commission (JFTC) published guidelines concerning the activities of corporate enterprises and other organisations in pursuit of the realization of a green society under the Antimonopoly Act (JAMA) (the Green Guidelines).
The Green Guidelines state that activities undertaken by enterprises toward the realization of a green society are essentially unlikely to raise any issues under the JAMA in most cases. According to the JFTC, this is because these activities tend to focus on achieving a green society rather than placing any restraints on free and fair competition. These activities often have procompetitive effects such as creating new technologies and superior products expected to contribute to the interests of consumers by reducing greenhouse gas emissions and providing other benefits.
On the other hand, if corporate activities do only have anti-competitive effects, restraining free and fair competition by imposing constraints on prices, quantities and technologies of individual enterprises, they will undoubtedly raise issues under the JAMA even if they are nominally intended to contribute to the realization of a green society.
Based on the general concept outlined above, the Green Guidelines set out various examples of conducts which do not raise competition law issues and conducts which do. This being said the Green Guidelines do not indicate any threshold or exemptions as to whether such conduct would or would not be considered illegal under the JAMA.

Case examples in the Green Guidelines

In most cases, the establishment of voluntary standards, such as the harmonisation of specifications, by a trade association for the purpose of reducing greenhouse gas emissions would be permissible. However, this could pose an issue if those voluntary standards are discriminatory or restrict specific forms of competition.
Another example is joint R&D: the Green Guidelines indicate that it would be permissible to conduct joint R&D activities for a technology to reduce greenhouse gas emissions in those cases where it is difficult for a single company to conduct them alone.
In terms of joint data collection, the Green Guidelines state that commercially sensitive information such as supply capacity could be shared between competitors' clean team members (which should not include any sales team members) subject to strict data management within the clean team.

Commercial impact

The Green Guidelines provide more than 70 case examples and explain whether or not each operator's activities raise issues under the JAMA. It is therefore a good idea for operators to check the Green Guidelines when faced with any antitrust concerns relating to their actions to reduce greenhouse gas emissions. The JFTC has also established a consultation window to provide advice on whether the specific activities that operators intend to carry out raise any issues under the JAMA. It is therefore recommended that business operators reach out to the JFTC if they are unsure about their decisions concerning greenhouse gas reduction activities.