기업결합 심사 시 경쟁제한성 판단요소로써 혁신유인 저해의 역할 - EU 집행위원회의 Dow/DuPont 사건의 시사점을 중심으로

Inherently uncertain nature of the merger reviews by the competition authorities gets worse when it meets the task of analyzing the impact of future R&D activities on competition. The relationship between the competitiveness of a market and its impact on incentives to innovate is a question that remains yet to be settled in competition law and economics, tracing back to the classical debate between Schumpeter and Arrow. The European Commission’s 2017 Dow/DuPont merger decision could be said to set both good and bad precedents in a string of caselaw that shed light on the issue of the merged party’s incentive to innovate. The Dow/DuPont decision broke a new ground for adopting the notion of “innovation spaces” where early R&D activities of the merging firms at the discovery stage are “competing” each other with no specific similar pipeline products identified in a market. The Commission’s assessment of the merger’s short term innovation effect-the likely discontinuance, delay, or re-orientation of the merger party’s overlapping R&D projects-was also a notable success. The analytical framework adopted by the Commission in evaluating the importance of the merged party as innovator, the closeness of innovation competition, etc. showed a far more systematic and comprehensive approach than its previous merger decisions. Having said that, the Commission’s novel theory of harm in its long term assessment of the incentive to innovate in the overall industry was an unwelcoming departure from its past merger decisions. Relying heavily on the structural but unquantifiable effect of the elimination of the rivalry in innovation competition, the Commission largely disregarded in its analysis of harm such outweighing factors as appropriation, pesticide resistance, and industry regulation. The KFTC’s recently revised Merger Guidelines set out a framework to assess harm to innovation for the first time, incorporating some lessons learned from the relevant EU merger decisions including the Dow/DuPont one. While the virtue of the amendment of the Guidelines lies in its attempt to have innovation its own independent place in the KFTC’s merger control in the technology-driven industries, it still leaves many important questions-innovation market definition, analytical tool to evaluate the “incentive”(as distinguished from “capabilities” to innovate) of the merged party to innovate-unanswered.