EU경쟁법의 역외적용을 위한 “적격영향 심사”에 관한 고찰

The traditional timid image of the European Union in the extraterritorial application of its competition law began to change. While US applied Sherman Antitrust Act aggressively to overseas cartels on the basis of effects doctrine since 1950s, only the Commission among the European institutions has welcomed the doctrine. The European Court of Justice sticked to the principle of territoriality relying on the single economic entity or implementation doctrines. This position of the European courts has shifted recently. In 1999, the General Court accepted the three constituting criteria of “immediate, substantial and foreseeable effect” without calling it “qualified effects” in the merger case of two South African companies, Gencor and Lonrho. In 2011, the General Court’s InnoLux decision outstretched the implementation doctrine to sales into the EU through transformation of the product by a third party in a third country, which was criticized by the Advocate General but supported by the Court of Justice of the European Union (CJEU). Finally in 2017, the General Court openly used, and the CJEU approved, the term and concept of “qualified effects test” in the Intel v. Commission case, involving abuse of dominant position by the American company in Asia. This paper shows that the European qualified effects test has the same expansive scope with the US effects doctrine, which has now been adopted by many countries including Korea. The European doctrine even seems more aggressive than its American cousin in merger review and regulation of dominant undertakings. The paper acknowledges inevitability of general acceptance of effects doctrine in the face of economic globalization. It, however, cautions against unlimited expansion of extraterritoriality and suggests that a balance should be struck by elaborating how to consider conflicting interests within the principle of international comity.