기업결합 심사의 절차적 공정성과 사법심사-United Parcel Service 판결을 중심으로

As merger cases are increasing recently, the competition authorities’ review tends to be strengthened. Generally merger enforcement process is under the competition authority’s exclusive control. For example, under the EU merger enforcement regime, it is not frequent for the court to revoke the Commission’s decision on merger. In 2019, the Court of Justice sustained the general court’s decision which revoked Commission’s decision in UPS/TNT Express case on the ground that Commission did not inform its revised final econo-metric model to plaintiff and it constitutes the severe infringement of the rights of defense in terms of procedural fairness. This ruling stressed the fairness value in the process of merger. According to the Court’s ruling, the merger enforcement process is not different from the general administrative process in terms of the rights of defense and fairness standard. Specifically, the econometric model is pivotal in explaining the mechanism of anticompetiveness. Therefore, EU Commission should notify the interested parties of the econometric models and guarantee the opportunity to defend themselves. This legal principle could be applied in other procedural flaws. This ruling is influential in merger review process. However, it took 6 years to revoke Commission’s decision. As a result, this ruling did not contribute to the substantial protection of plaintiff’s right. This delay of judicial review is also problematic in Korean merger review process. Under the current system, the way to expedite the judicial process and raise the professional specialty of courts is required to solve this delay. In the long term, the introduction of competition court system will contribute to the specialized and expedited judicial review process on merger.