시장지배적 사업자의 리베이트 제공행위에 관한 EU의 판례에 대한 분석

Abstract

We can see the typical examples of traditional, structuralist and form-based approach to abuse control through analyzing cases regarding rebates by dominant undertakings in EU Competition Law. A recent discussion for modernization of EU Competition Law demands the fundamental improvement in enforcing abuse control. Therefore all the criticisms of abuse control apply to precedents related to rebates by dominant undertakings in the same way. However we would be able to draw some implications from analysis on rebate cases of EU courts in that it is an regulatory example of abuse control which Korean Competition Law also adopts. Firstly, standard of judgement focusing on trading partners rather than competitors and consumers of EU case law corresponds to the requirements of the Number 3 in Article 3-2Section 1 which prohibits the unreasonable hindrance to other undertakings. If rebates by dominant undertakings is prohibited as discriminatory or compulsory conduct, when the restraints of freedom to choose source of supply is prominent, the prohibition on hinderance to other undertakings of Number 3 would apply to. Secondly, it is necessary to notice the EU courts’judgment on how and to what extent the competition authority should prove the effect of rebates in question. Lastly, the unfairness in EU rebates cases implies that the demand that fairness should be accomplished in trade in which dominant undertakings participate is not irrelevant in abuse control. Simply speaking, rebates by dominant undertakings is regulated in EU Competition Law as hindrance which impairs customers’ capability or possibility of competition through the restraints of freedom of choice, or unfairness in trading conditions. Now we should think over which perspective and standard of judgement we will take in order to regulate rebates by market-dominant undertaking in the Korean Competition Law, reflecting the regulatory examples of US and EU courts.