인터넷 플랫폼 시장에서의 경쟁법 적용을 위한 소비자 선택 기준
Consumer Choice Standard for the Application of Competition Law into the Internet Platform Market
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As the ICT(Information, Communications, and Technology) ecosystems are substituting the established value chains in the telecommunications market,the platform service provider’s influence is increasing due to its role of a gatekeeper to connect the different layers by enabling the flow of information and values among various stakeholders. This article aims to overview the consumer choice standard that emerges as a new standard for applying competition law into the internet platform market and to study the prerequisite and method required for its right application. There needs to be a policy-driven approach as to whether the traditional way of competition law application into the markets characterized by the New Economy is desirable. This approach can be made either by reestablishing the standard for judgment of illegality or by diversifying the enforcement methods. As regards the reestablishment for the illegality determination standard, the method that places the concept of consumer choice as a center gains increased attention in the EU. This method can be described as the one which identifies the foreclosure effect on the competitors of the conduct in question and links the subsequently less consumer choice opportunities with the anti-competitive effect. By developing a reasoning focused on the concept of consumer choice, unlike counterparts in the US, EU competition authorities and courts seem to pursue an alternative way of determining illegality so as to lower the dependence on the troubling economic analysis techniques such as price-cost test. Even though the consumer choice standard could be considered significantly in applying competition law, it should be borne in mind that the standard acts as a ground for capturing the effect on consumers in the context of the likely negative effect on competitors at the illegality judgment stage or as a ground for evaluating the defences arguing the effects of enhancing consumer welfare or efficiencies at the justification judgment stage. In this regard, it is not desirable to apply competition law into the practices relating to the circumstances where the effect on competition is undeclared by referring to abstract harm to the benefits of consumer choice as the detriment to consumer interests sufficient for fulfilling the legal requirement for the intervention. Even when the government tries to address this undeveloped area in any way, it should be very considerate as to policy choice of whether and to what extent to intervene. I think co-regulation would be an alternative in this situation.
Abstract
As the ICT(Information, Communications, and Technology) ecosystems are substituting the established value chains in the telecommunications market,the platform service provider’s influence is increasing due to its role of a gatekeeper to connect the different layers by enabling the flow of information and values among various stakeholders. This article aims to overview the consumer choice standard that emerges as a new standard for applying competition law into the internet platform market and to study the prerequisite and method required for its right application. There needs to be a policy-driven approach as to whether the traditional way of competition law application into the markets characterized by the New Economy is desirable. This approach can be made either by reestablishing the standard for judgment of illegality or by diversifying the enforcement methods. As regards the reestablishment for the illegality determination standard, the method that places the concept of consumer choice as a center gains increased attention in the EU. This method can be described as the one which identifies the foreclosure effect on the competitors of the conduct in question and links the subsequently less consumer choice opportunities with the anti-competitive effect. By developing a reasoning focused on the concept of consumer choice, unlike counterparts in the US, EU competition authorities and courts seem to pursue an alternative way of determining illegality so as to lower the dependence on the troubling economic analysis techniques such as price-cost test. Even though the consumer choice standard could be considered significantly in applying competition law, it should be borne in mind that the standard acts as a ground for capturing the effect on consumers in the context of the likely negative effect on competitors at the illegality judgment stage or as a ground for evaluating the defences arguing the effects of enhancing consumer welfare or efficiencies at the justification judgment stage. In this regard, it is not desirable to apply competition law into the practices relating to the circumstances where the effect on competition is undeclared by referring to abstract harm to the benefits of consumer choice as the detriment to consumer interests sufficient for fulfilling the legal requirement for the intervention. Even when the government tries to address this undeveloped area in any way, it should be very considerate as to policy choice of whether and to what extent to intervene. I think co-regulation would be an alternative in this situation.
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