Unlike before the 2015 amendment when this fell into the competence of various Japanese Ministries in specific sectors, the APPI empowers the PPC to adopt "Guidelines" "to ensure the proper and effective implementation of action to be taken by a business operator" under the data protection rules. Through its Guidelines, PPC provides an authoritative interpretation of those rules, in particular the APPI. According to the information received from the PPC, those Guidelines form an integral part of the legal framework, to be read together with the text of the APPI, the Cabinet Order, the PPC Rules and a set of Q&A (14) prepared by PPC. They are therefore "binding on business operators". Where the Guidelines state that a business operator "must" or "should not" act in a specified way, the PPC will consider that non-compliance with the relevant provisions amounts to a violation of the law (15).

As regards transfers from the European Union, personal data will necessarily have been first collected and processed in the EU in compliance with Regulation (EU) 2016/679. This will always involve, on the one hand, collection and processing, including for the transfer from the European Union to Japan, on the basis of one of the legal grounds listed in Article 6(1) of the Regulation and, on the other hand, collection for a specific, explicit and legitimate purpose as well as the prohibition of further processing, including by way of a transfer, in a manner that is incompatible with such purpose as laid down in Articles 5(1)(b) and 6(4) of the Regulation.

Under the accountability principle, entities processing data are required to put in place appropriate technical and organisational measures to effectively comply with their data protection obligations and be able to demonstrate such compliance, in particular to the competent supervisory authority.

Finally, the APPI creates a framework for the participation of sectoral industry organisations in ensuring a high level of compliance (see Chapter IV, Section 4). The role of such accredited personal information protection organisations (40) is to promote the protection of personal information by supporting businesses through their expertise, but also to contribute to the implementation of safeguards, notably by handling individual complaints and helping to solve related conflicts. To that end, they may request participating PIHBOs, if appropriate, to adopt necessary measures (41). Moreover, in case of data breaches or other security incidents PHIBOs shall in principle inform the PPC as well as the data subject (or the public) and take necessary action, including measures to minimise any damage and to prevent any recurrence of similar incidents (42). While those are voluntary schemes, on 10 August 2017 the PPC had listed 44 organisations, with the largest one, Japan Information Processing and Development Center (JIPDEC), alone counting 15 436 participating business operators (43). Accredited schemes include sector associations such as for instance the Japan Securities Dealers Association, the Japan Association of Car Driving Schools or the Association of Marriage Brokers (44).

In order to ensure that an adequate level of data protection is guaranteed also in practice, an independent supervisory authority tasked with powers to monitor and enforce compliance with the data protection rules should be in place. This authority should act with complete independence and impartiality in performing its duties and exercising its powers.

Although not all provisions of Chapter IV, Section 1 of the APPI are listed in Article 42(1) – which also determines the scope of application of Article 42(2) – this can be explained by the fact that certain of those provisions do not concern obligations of the PIHBO (59) and that all essential protections are already afforded by other provisions that are included in that list. For instance, although Article 15 (requiring the PIHBO to set the utilisation purpose and process the relevant personal information exclusively within its scope) is not mentioned, failure to observe this requirement can give ground to a recommendation based on a violation of Article 16(1) (prohibiting the PIHBO to process personal information beyond what is necessary to achieve the utilisation purpose, unless it obtains the data subject's consent) (60). Another provision not listed in Article 42(1) is Article 19 of the APPI on data accuracy and retention. Non-compliance with that provision can be enforced either as a violation of Article 16(1) or based on a violation of Article 29(2), if the individual concerned asks for the correction or deletion of erroneous or excessive data and the PIHBO refuses to satisfy the request. As regards the rights of the data subject according to Articles 28(1), 29(1) and 30(1), oversight by the PPC is ensured by granting it enforcement powers with respect to the corresponding obligations of the PIHBO laid down in those Articles.

The Supplementary Rules further clarify and strengthen the PPC's enforcement powers. More specially, in cases involving data imported from the European Union, the PPC will always consider a PIHBO's failure to take action in line with a recommendation issued by the APPI pursuant to Article 42(1), without legitimate ground, as a serious infringement of an imminent nature of an individual's rights and interests within the meaning of Article 42(2), and therefore as an infringement warranting the issuance of a binding order. Moreover, as a "legitimate ground" for not complying with a recommendation the PPC will only accept an "event of an extraordinary nature [preventing compliance] outside the control of the [PIHBO] which cannot be reasonably foreseen (for example, natural disasters)" or cases where the necessity to take action concerning a recommendation "has disappeared because the [PIHBO] has taken alternative action that fully remedies the violation".

Non-compliance with a PPC order is considered as a criminal offence under Article 84 of the APPI and a PIHBO found guilty can be punished by imprisonment with labour for up to six months or a fine of up to 300 000 yen. Furthermore, pursuant to Article 85(i) of the APPI, lack of cooperation with the PPC or obstruction to its investigation is punishable with a fine of up to 300 000 yen. These criminal sanctions apply in addition to those that may be imposed for substantive violations of the APPI (see recital 108).

Third, in addition to civil law (tort) remedies, a data subject may file a complaint with a public prosecutor or judicial police official with respect to APPI violations that can lead to criminal sanctions. Chapter VII of the APPI contains a number of penal provisions. The most important one (Article 84) relates to non-compliance by the PIHBO with PPC orders pursuant to Article 42(2) and (3). If a business operator fails to comply with an order issued by the PPC, the PPC Chair (as well as any other government official) (66) may forward the case to the public prosecutor or judicial police official and in that way trigger the opening of a criminal procedure. The penalty for the violation of a PPC order is imprisonment with labour for up to six months or a fine of up to 300 000 yen. Other provisions of the APPI providing for sanctions in case of APPI violations affecting the rights and interests of data subjects include Article 83 of the APPI (regarding the "providing or using by stealth" of a personal information database "for the purpose of seeking […] illegal profits") and Article 88(i) of the APPI (regarding the failure by a third party to correctly inform the PIHBO when the latter receives personal data in accordance with Article 26(1) of the APPI, in particular on the details of the third party's own, prior acquisition of such data). The applicable penalties for such violations of the APPI are, respectively, imprisonment with work for up to one year or a fine of up to 500 000 yen (in case of Article 83) or an administrative fine of up to 100 000 yen (in case of Article 88(i)). While the threat of a criminal sanction is already likely to have a strong deterrent effect on the business management that directs the PIHBO's processing operations as well as on the individuals handling the data, Article 87 of the APPI clarifies that when a representative, employee or other worker of a corporate body has committed a violation pursuant to Articles 83 to 85 of the APPI, "the actor shall be punished and a fine set forth in the respective Articles shall be imposed on the said corporate body". In this case, both the employee and the company can be imposed sanctions up to the full maximum amount.

Within the limits of their competence, public authorities may also collect electronic information based on requests for voluntary disclosure. This refers to a non-compulsory form of cooperation where compliance with the request cannot be enforced (88), thus relieving the public authorities from the duty of obtaining a court warrant.

In addition, with respect to the correct application of the APPIHAO, the competent minister or agency head (e.g. the Commissioner General of the NPA) has enforcement authority, subject to the supervision by the Ministry of Internal Affairs and Communications (MIC). According to Article 49 APPIHAO, the MIC "may collect reports on the status of enforcement of this Act" from the heads of Administrative Organs (Minister). That oversight function is supported by input from MIC's 51 "comprehensive information centres" (one in each Prefecture throughout Japan) that each year handle thousands of inquiries from individuals (114) (which, in turn, may reveal possible violations of the law). Where it considers this necessary for ensuring compliance with the Act, MIC may request the submission of explanations and materials, and issue opinions, concerning the handling of personal information by the concerned Administrative Organ (Articles 50, 51 APPIHAO).

Under the mechanism, an individual who suspects that his/her data transferred from the European Union has been collected or used by public authorities in Japan (including those responsible for criminal law enforcement) in violation of the applicable rules can submit a complaint to the PPC (individually or though his/her data protection authority within the meaning of Article 51 of the GDPR). The PPC will be under an obligation to handle the complaint and in a first step inform the competent public authorities, including the relevant oversight bodies, thereof. Those authorities are required to cooperate with the PPC, "including by providing the necessary information and relevant material, so that the PPC can evaluate whether the collection or the subsequent use of personal information has taken place in compliance with the applicable rules" (117). This obligation, derived from Article 80 of the APPI (requiring Japanese public authorities to co-operate with PPC), applies in general and hence extends to the review of any investigatory measures taken by such authorities, which moreover have committed to such cooperation through written assurances from the competent ministries and agency heads, as reflected in Annex II.

As regards MOD, oversight is exercised by the Inspector General's Office of Legal Compliance (IGO) (134) that has been established based on Article 29 of the MOD Establishment Act as an office within the MOD under the supervision of the Minister of Defence (to which it reports) but independent from MOD's operational departments. The IGO has the task of ensuring compliance with laws and regulations as well as the proper execution of duties by MOD officials. Among its powers is the authority to carry out so-called "Defence Inspections", both at regular intervals ("Regular Defence Inspections") and in individual cases ("Special Defence Inspections"), which in the past have also covered the proper handling of personal information (135). In the context of such inspections, the IGO may enter sites (offices) and request the submission of documents or information, including explanations by the Deputy Vice-Minister of the MOD. The inspection is concluded through a report to the Minister of Defence setting out the findings and measures for improvement (the implementation of which can again be checked through further inspections). The report in turn forms the basis for instructions from the Minister of Defence to implement the measures necessary to address the situation; the Deputy Vice-Minister is charged with carrying out such measures and has to report on the follow-up.

Therefore, the Commission should on an on-going basis monitor the situation as regards the legal framework and actual practice for the processing of personal data as assessed in this Decision, including compliance by the Japanese authorities with the representations, assurances and commitments contained in Annex II. To facilitate this process, the Japanese authorities are expected to inform the Commission of material developments relevant to this Decision, both as regards the processing of personal data by business operators and the limitations and safeguards applicable to access to personal data by public authorities. This should include any decisions adopted by the PPC under Article 24 of the APPI recognising a third country as providing an equivalent level of protection to the one guaranteed in Japan.

The Commission should also consider initiating the procedure leading to the amendment, suspension or repeal of this Decision if, in the context of the Joint Review or otherwise, the competent Japanese authorities fail to provide the information or clarifications necessary for the assessment of the level of protection afforded to personal data transferred from the European Union to Japan or compliance with this Decision. In this respect, the Commission should take into account the extent to which the relevant information can be obtained from other sources.