공정거래법상 동의의결제도에 대한 불복절차와 관련한 비교법적 검토 - EU 일반법원과 EU 사법재판소의 Alrosa 판결이 주는 의미 -

Under the “commitment decision,” the undertakings concerned offer on their own remedial measures such as restitution and consumer protection in the process of investigation of the violation case in competition law. Then,competition law authorities close the case promptly without making a judgment of illegality if the authorities admit the legitimacy after hearing interested parties. This commitment decision is beneficial to both undertakings and the competition law authorities. On undertakings’ side, since undertakings can provide their own remedial plans to the government and finish cases quickly, they can reduce time, costs, and managerial digression and avoid reputational damage. On the commission’s side, the commitment decision enables the commission to solve the case at issue quickly and efficiently. In addition, consumers are better off under the commitment decision since consumers who have not been compensated through fines or corrective actions under the current system are now able to seek practical remedy through various methods such as markdown and a compensation for consumer’s damage. Due to these systematic merits, the commitment decision has been broadly adopted in the United States, EU and Korea. Basically, a commitment decision is made based upon voluntary remedial measures proposed by undertakings concerned. Thus, if they appeal against a commitment decision, this is generally because there are procedural flaws in a commitment decision. Or, a third party who has legal or de facto interest to seek recession can bring a revocation litigation if she finds any problem in a commitment decision – an example in the latter is found in EU’s Alrosa case. Alrosa case is of significance since it is the first case regarding the force of the commitment decision according to Article 9 of Regulation 1/2003. However, a concern associated with the European Court of Justice(ECJ)’s Alrosa decision is that in practice competition policies and enforcements by European Commission(EC) are substantially excluded from judicial review. In other words, the ECJ admits the EC’s discretion to a large extent so that the ECJ evaluates solely whether the EC’s decision is obviously incorrect as a matter of law. Another issue is whether to permit an appeal against a commitment decision in general – in addition, whether to extend the right to file an objection or a revocation litigation in court to a third party is another issue to consider in concrete cases. On one hand, if an interested third party is allowed to appeal with respect to a commitment decision, an initial intend to adopt the commitment decision system – i.e., to restore the competition by solving disputes quickly – can be tainted. On the other hand, if she is not allowed to appeal, a third party with legitimate interest is not protected since competition authorities’ tendency to interpret their power and discretion in a broad way can be established.