Goals and Presumptions of Antitrust Law

When nations apply their merger rules domestically or extra territorially, a lack of consensus of the ultimate aims and goals of antitrust law at the most fundamental level may significantly increase the likelihood that a merger will be reviewed and perceived subjectively by different antitrust authorities. The consequential risk of inconsistency and conflict, therefore, may ensue. While the goal of U.S. antitrust law is efficiency, or maximization of consumer welfare, the ultimate goal of European competition policy is the integration of the European community into a unified common market. To achieve this objective, the EU prioritizes competition policy as a key factor and takes into account economic, social and political concerns in its merger analysis. At the same time, unlike U.S. antitrust policy, which protects competition rather than competitors, EU antitrust policy protects competitors rather than competition. The Boeing/McDonnell Douglas case suggests the importance of political and social concerns in the EU's preliminary decision to oppose the proposed merger. As Article 1 of the "Monopoly Regulation and Fair Trade Act" mandates, the Korean Fair Trade Commission should encourage free and fair competition to achieve the goal of balanced economic development. Unlike U.S. antitrust law, the ultimate goal of Korean antitrust law seems to be balanced economic development. Also, Korea's antitrust policy is still used as a means to achieve economic, social or political objectives and not only to protect competition. Furthermore, the Fair Trade Act has a number of provisions aimed at protecting small and medium sized enterprises. Addressing the ultimate goal of antitrust law, the U.S. antitrust policy is a good model for Korea, because even the EU has purposely followed the U.S. pattern by excluding in the substantive rules of Merger Regulation criteria for merger control questions that are unconnected to the competitive structure of the market, although many member states favored the criteria's inclusion in the Merger Regulation. Therefore, this article has suggested that instead of having other main objectives, Korea might consider adopting efficiency or maximization of consumer welfare as its ultimate goal of antitrust law and that protection of competition itself should be the main objective of Korean antitrust law.