동조적 행위로서 정보교환과 독점규제법상 합의 -서울고등법원 2013. 7. 17 선고 2012누2346 판결을 중심으로-

Recently exchange of information became an issue because of the several high court’s ruling about exchange of information and concerted practices which is in the Article 101(1) of TFEU. With regard to th definition of a concerted practice, the Court has held that such a practice is a form of coordination between undertakings by which , without it having been taken to the stage where an agreement properly so-called has been concluded, practical cooperation between them is knowingly substituted for the risks of competition. And it follows, first, that the concept of a concerted practice, as it results from the actual terms of Article 101(1) TFEU, implies, besides undertakings’ concerting with each other, subsequent conduct on the market, and a relationship of cause and effect between the two. Because concerted practice is but no more than an “conduct of operator”, it cannot be identified as “agreement” from the actual terms of Article 19 Monopoly Regulation and Fair Trade Act. In the concept of concerted action, the exchange of information can be assumed as an agreement of Article 19 Monopoly Regulation and Fair Trade Act under certain conditions, which are related to market conditions and characteristics of the information exchange.