조건부 리베이트- 대법원 2019. 1. 31. 선고 2013두14726 판결 -

This thesis is about the case that Qualcom gave the cellphone makers rebates under the condition where cellphone makers would buy all or majority of their necessities and Qualcom did the discrimination by the rebate acceptance. In this case the Supreme Court categorized conditonal rebates whithin the exclusive dealing according to EU's approach, not whithin the predatory pricing. In the verdict the foreclosure effect was key factor to decide the abuse in the test of total circumstances consideration and 20% is insufficient unless the cumulative foreclosure happened by some actions which were blamed to Qualcom. The Court did not totally accept the EER test contrary to the EU Intel case and EU guidance, but the competiton authority’s first decision could be rebutted through the undertaking’s economical evidences such as effective price analysis. In this way the Court showed the independent abuse-decision and left some problems that objective requirements were neglected and the decision were dependent mainly by the unfaireness requierments. Unclearness from the point of the undertaking’s guidance and danger of false negative would be the challenges to overcome and total circumstances would be found out from the point of relationship and superiority among the circumstances.