유럽연합 경쟁법상 봉쇄효과에 관한 연구

Recently, one of the main issues in the competition law is the exclusionary behavior of market dominant enterprise. The discussion over which general standard should be applied in finding illegality of the exclusionary behavior is still on going in U.S. and Korea. On the contrary, EU commission published “Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty of abusive exclusionary conduct by dominant undertakings” in 2009 and the guidance influenced by the post-Chicago school provides that anti-competitive foreclosure effect shall be the general standard applied to exclusionary behavior. This standard is not new to other areas of the competition law. The existence of foreclosure effect has been central issue in the vertical merger regulation in U.S., EU and Korea. Even though the detailed meaning of the foreclosure effect has varied, the post-Chicago school approach is now generally accepted in U.S. and EU. However, this approach is not prevailing in Korea yet. The fact that the foreclosure effect could be applied to exclusionary behavior as well as vertical merger is not a coincidence, because the rationale underlying the two regulations is the same in that it prohibits the risk which forecloses the opportunity for the competitors of the post-merger company or the market dominant enterprise to compete rigorously against them. The difference between them is that the vertical merger is focusing on the future likeliness of the risk incurred by the merger while the exclusionary behavior is focusing on the specific risk incurred by a specific behavior. Even though courts and Korea Fair Trade Commission (“KFTC”) are not expressly recognizing post-Chicago school approach of the foreclosure effect in vertical merger and abuse of market dominant position, court decisions and KFTC decisions show that they recognize the effect potentially. Thus it is recommended that Korean Monopoly Regulation and Fair Trade Act (“MRFTA”) and other related guidelines provides expressly the foreclosure effect as a general standard in the area of vertical merger and exclusionary behavior of market dominant enterprise. In addition to it, the foreclosure effect approach could be applied to the transactions between affiliates of large business group(so-called “Chae-Bul”).