공정거래법 제19조의 합의와 동조적 행위- 정보교환을 중심으로 -

In EU, the notion of concerted practices is a tool that allows one to find an infringement of Art.101 TFEU when companies implicitly agree anti-competitive conduct as a looser form of coordination not requiring the conclusion of an agreement. The concept of concerted practices radically evolved throughout the years. There are key components to a concerted practice: concertation; subsequent conduct on the market; and a presumption that invokes a relationship of cause and effect between the two. In the US, where a plaintiff relies on circumstantial evidence, an agreement may be shown from parallel conduct with plus factors such as meetings or other communications providing an opportunity to conspire. In Korea, the Court decided that information exchange alone fails to establish cartel even if companies exchanged or discussed price related information in meetings. The paper argues that the concept of concerted practices can be compatible with the definition of an agreement in the MRFTA(the Monopoly Regulation and Fair Trade Act) as long as the Court changes its interpretation for an agreement. Further, it should be recognized that the exchange of price and quantity information, as well as the sharing of strategic, future plans between competitors and not the public, leads to anti-competitive conduct. In addition, communications or contacts between competitors should be taken into account in determining whether an agreement is established. Lastly, too much emphasis on parallel conduct may cause decision errors therefore should be re-examined. Considering the attitude of the Court in Korea, the KFTC needs to introduce the notion of concerted practices in the MRFTA, which can help the KFTC address information exchanges among companies.