최근 공정거래법상 기업결합 심결례 분석

Abstract

This article aims to review recent cases of the Korea Fair Trade Commission (‘KFTC’) regarding merger & acquisition under the Korean Competition Law and analyse normative validity of such cases. For this reason, two cases are selected as target cases. One is Microsoft/Nokia merger in 2015 (‘MS/Nokia’) and the other is SK Telecom/SK Broadband and CJ Helovision merger in 2016 (‘SKT/SKB/CJHV’). The former was closed with a consent decree and the latter was blocked. The review and analysis in this article are carried out commonly for both cases by distinguishing the part of definition of the relevant market from the part of assessment of anticompetitiveness in accordance with the KFTC’s conceptual framework for analysis to be constructed for the purpose of appraisal of concentrations. The differences in case management affect the scope of the analysis. In MS/Nokia, only issues of definition of the relevant product and construction of theories of competitive harm have been dealt with because the KFTC did not go further into the issue of determination of anticompetitiveness. By contrast, in SKT/SKB/CJHV, issues of definition of the relevant market, determinations of anticompetitiveness of horizontal merger and vertical merger have been contemplated one after another. The issues of determinations of anticompetitiveness include a matter of how to devise conceptual framework for analysis, appraisal of adopted theories of competitive harm and method and degree of proving anticompetitiveness. The overall analysis result of the article can be summarized as follows. KFTC’s MS/KFTC consent decree decision is noticeable in that it caught the right point of what competition law should concern in vertical merger between mobile related patent and mobile device businesses by separately defining mobile patent technology market at the market definition stage. KFTC’s SKT/SKB/CJHV decision deserves credit for its efforts as much as possible to construct theories of competitive harm and prove it in relation to two categories of horizontal merger and one category of vertical merger. However, it is regrettable that the efforts appears to have ended up with a traditional outcome weighing heavily with a market concentration factor. There should have been more focus on looking at how the scope and extent of competitive constraints exerted on the merged parties by other market participants would change.