디자인 변경에 대한 경쟁법 규제와 구글쇼핑 사건

While internet commerce and search markets in Korea have been moving dynamically since the mobile revolution in the early 2000’s, the phenomenon of long-term monopolization in the global digital market has also emerged generating competition policy concerns. If such concentration is caused by anti-competitive conduct the need for competition law enforcement is keen and it would be necessary to focus on not only the process of competition but also market order and structure. On the other hand, if market order and structure changes are dynamic, no clear sign of government intervention exists. It is natural for firms to produce and sell new and innovative products, but it can be a matter of competition law when only design changes of an existing product are made. In U.S. case law product design changes with significant technical improvements are generally treated per se legal while cases of trivial improvements are subject to analyses of competitive effect to determine illegality. Even when the improvement effect is ambiguous, illegality is not easily recognized, but in the Microsoft tying arrangement case, the competitive effects were analyzed in a balanced manner. The academia generally supports such case law, but the New Brandeis School which advocates for aggressive antitrust law enforcement against giant IT firms is noted for arguing for the application of rule of reason principles for design changes. The author did not find active discussion regarding the issue of design change in the E.U., but they seem to accept American discussions in a general sense. In the Google Shopping case that dealt with design changes of a monopolist in the internet search market, the USFTC determined that Google’s design changes in 2013 provided ‘significant improvements’ in consumer benefits constituting a ‘competition in the merits’, and even if they caused disadvantages to competitors, the market should bear such costs. Hence, the USFTC dismissed the case clearly advocating the efficiency and consumer welfare effects by the design changes. On the contrary, the EC found that Google’s conduct in 2017 directing internet traffic from Google’s general search result page to its own comparison shopping service, increased traffic to its own comparative shopping service while reducing traffic to those of other companies, and imposed remedies and sanctions. The EC concluded that the arbitrary control of internet traffic, an important means of competition, by a monopolist to their advantage brought about concerns of leveraging monopoly power. While the European Academia is split over this EC decision, the US legal and academic circles generally criticize it as an unreasonable decision arguing that it overlooks the efficiency of design changes and lacks detailed analysis of competitive effects including foreclosure effects. The author criticizes both jurisdictions’ approach; the U.S. standard is excessively generous to monopolists by seemingly excluding the rule of reason test which is the general principle in evaluating unilateral conduct, while the EC’s Google Shopping decision seems to have neglected proper analysis of competitive effect and lacks in appropriate balancing. Hence, Korean enforcement needs to analyze competitive effects and balance relevant effects of design changes while being flexible about the burden and methods of proof while considering mid- to long-term effects on market structure according to the open standard stipulated by the POSCO decision. The author believes that this could help to address important issues of innovation, efficiency, and consumer welfare as well as mid- to long-term issues of market structure in Korea’s unique market circumstance.