경쟁법상 ‘지속가능성(Sustainability)’ 문제에 관한 EU 및 회원국 경쟁당국의 동향

Abstract

It will be difficult to disagree that environmental, social, and economic sustainability has now become a goal for mankind that cannot be delayed any longer. However, it is true that the new demand for sustainability raises several difficult problems in the competition law, which has basically distinguished economic and non-economic aspects. And it seems to be a problem that has not yet appeared in Korea. However, each country's economic activities are bound to be closely influenced by each other, which leads to interaction among norms. In this respect, looking at the discussions and trends in the EU and Member States, which are dealing with sustainability issues under competition law, will mean looking ahead to our problems. On the other hand, in the case of the Korean Competition Act, it is also worth paying attention to the aspect that sustainability issues may highlight the limitations of the system of prohibiting cartel in Article 40. If there is an issue in Korea where environmental public interest is greatly highlighted, such as agreement to achieve sustainability purposes, it will be reviewed in the requirement of unreasonableness, and in light of previous precedents, unreasonableness is possible to be denied. There is no choice but to say that there is considerable uncertainty as of now for both competition authorities and undertakings. For EU and member competition authorities, the sustainability issue is, after all, a task to alleviate or resolve the uncertainty of law enforcement, which seems to be greater for our KFTC or operators, but never less. Overall, looking at how the EU and its Member States address the issue of environmental sustainability, we can see that they are taking a very careful approach to maintaining consistency with the ultimate objectives and systems of competition law, while boldly embracing the challenges of the new era. The question of to what extent to consider non-economic goals or interests in competition law has long been a controversial topic, and the degree of acceptance will inevitably vary depending on the country. In the EU, values from various economic and non-economic aspects have had some role in interpreting and enforcing competition laws, so there was a context to deal with sustainability issues, but this context is relatively weak in other competition legislation, such as the United States and Korea. Nevertheless, sustainability issues are expected to provide an opportunity for in-depth discussions by visualizing issues latent in the existing normative system, such as cartels, merger, and abuse of market dominant position in Korea.