시장지배적 사업자의 이윤압착 행위의 부당성 판단

Margin squeeze may be established where a vertically integrated company, such as a telecommunications company, which is dominant in the upstream market sets its wholesale price higher or its own customer price lower to such an extent that its competitor in the downstream market cannot compete for the supply of products or services to customers. In 2015, the Korean Fair Trade Commission (KFTC) issued desist orders and monetary surcharges to two telecommunications companies on the ground that they set their own retail prices lower than those of their competitors so as to diminish their competitors’ profits and exclude their competitors from the business messaging service market. Regarding the violation of Art. 102 TFEU, the EU Court of Justice (CJEU) reasoned that margin squeeze may potentially foreclose competition in the downstream market by leveraging one’s market power in the upstream market. The European Commission has laid out certain standards to evaluate such practice as distinguished from refusal to deal or predatory pricing. According to the Commission’s guideline, margin squeeze can easily occur in the regulated industry, and market dominant undertaking has a special responsibility to protect adequate profits of equally efficient competitors for the sake of a workable competition in the downstream market. The European Court of Justice acknowledged in its Deutsche Telekom and TeliaSonera case that margin squeeze constitutes a stand-alone abusive conduct under Art. 102 TFEU, where the spread between wholesale and retail prices is negative or insufficient to allow an as-efficient competitor to compete for the supply of retail services to customers. By contrast, U.S. jurisdiction takes the position that the purpose of Section 2 of the Sherman Act is to protect consumer welfare. On this ground, the Court held ILEC (a dominant telecommunications company) not to have violated the Sherman Act because it has no antitrust duty to deal with its competitor at the wholesale level. The Court concluded that, with neither the duty to deal at the wholesale level nor predatory pricing at the retail level, a firm is certainly not required to price both of these services in a manner that preserves its rivals’ profit margins. In Korea, the Supreme Court made it clear in its famous POSCO judgement that, to allege exclusive abuse, the KFTC should show the market dominant company’s monopolistic intent or object, or otherwise prove anti-competitive effect. In the business messaging service case, the KFTC should have held the related conduct not as predatory pricing but as margin squeeze, based on the analysis of the structure of the market dominant company’s expenses or the evaluation of whether competitors are equally efficient. Cumulative theoretical debate and economic analyses in court are expected to build the case law on this point.