경쟁제한적인 소수지분 취득에 대한 기업결합심사 규제: 미국 및 유럽 경쟁법과의 비교법적 검토

Abstract

Economic debate has continued over whether an acquisition, even without control or influence, may still have anticompetitive effects under certain circumstances. The contention is that an acquiring company, even with a non-controlling minority interest, may unilaterally increase price or decrease production (unilateral effect), or cause the acquiring company and the acquired company to mutually cooperate with each other (coordinated effect). Based on these notions of “unilateral effect” and “coordinated effect,” Courts and antitrust enforcement authorities in United States and Europe have prohibited certain minority acquisitions and acknowledged their anticompetitive effects. Furthermore, in 2010, the U.S. Department of Justice and the Federal Trade Commission released the Horizontal Merger Guideline, which addresses minority acquisitions and outlines a detailed framework for determining whether a minority acquisition is anticompetitive. Likewise in July 2014, the European Commission released White Paper, “Towards More Effective EU Merger Control,” which considers the introduction of a regulatory system of notice filing for certain minority acquisitions. In 2011, influenced by the 2010 Horizontal Merger Guidelines, the Korea Fair Trade Commission (“KFTC”) also acknowledged the possibility of evaluating minority acquisitions and pushed to amend the Guideline for M&A Review in order to provide a detailed framework for the evaluation of minority acquisitions. However, the KFTC withdrew the amendment because in its view, the amendment would burden businesses and conflict with the existing regulatory framework. Nonetheless, in order to guard against potential risks, it is only rational to reconsider the 2014 amendment to the Guideline for M&A Review. In fact, deeming certain minority acquisitions as anticompetitive does not conflict with the existing antitrust regulations, and evaluating minority acquisitions for anticompetitive effects does not burden businesses because actual instances of antitrust threat posed by minority acquisitions are few and far between.