플랫폼 사업자 간의 기업결합과 제2차 관련시장 접근법

Digital platforms tend to extend to multiple markets, as they can enter a new market at a relatively low cost, thanks to the common elements of production, such as data, attained in another market, and modular design. Literature on platform envelopment and ecosystems competition provides a very comprehensive insight into both the pro-competitive and anti-competitive impacts of platforms’ cross-market strategies. However, established legal principles that consider cross-market effects cannot reflect the complicated cross-market strategies of platforms, as they allow cross-market analysis in merger review only under strict conditions. For example, in Baemin/Yogiyo, established legal principles hindered sufficient consideration of cross-market factors in defining markets, assessing market power and analyzing effects on competition. Thus this article proposes the secondary relevant market approach as a measure to warrant a more comprehensive cross-market analysis in merger review. The approach defines a market as a secondary relevant market when it significantly affects competition in a relevant market, and thereby (i) obliges courts and competition agencies to consider the impact of those factors in competitive analysis, and (ii) fairly distributes the burden of proof between plaintiffs/agencies and defendants/merging parties. By filtering out only markets which “significantly” affect competition in a relevant market, the approach narrows down the range of markets for courts and agencies to focus on. We could further relieve the practical burden in applying the approach, by introducing preliminary examination procedure. This article also proposes an amendment of the merger guidelines to provide a set of criteria to define a secondary relevant market.