디지털경제 관련 유럽연합의 수직거래제한 규제에 관한 연구

It is beyond doubt that an effective functioning of distribution is one of the most important elements in our market economy. In particular, without appropriate competition rules of online distribution, it is impossible to ensure consumer welfare in the digital market. However, where competition authorities and courts do not understand the trade-off between benefits from interbrand competition and anti-competitive harms from hardcore restraints, the law application will create inefficient outcomes. In effect, the major competition regimes, such as the US and the EU, have shown their case law developments of vertical agreement. In contrary, the Korean competition regime has focused on the applications of Articles 45 and 46 of the Monopoly Regulation and Fair Trade Act that prohibit unfair trade practices and resale price maintenance respectively. This may generate some confusions in implementation of the Korean competition rules on vertical restraints. Different from the Korean approach, the EU regime has developed the competition rule on vertical agreements based on the case law and the Vertical Block Exemption Regulation (VBER). Importantly, the European policymakers revised the VBER in May 2022 that indicates its modernisation of competition law, reflecting the influence of the growth of online intermediation services and the demand for prohibiting harmful vertical restraints by digital platforms. The VBER highlights the importance of robust standards or benchmarks for distinguishing beneficial vertical practices from harmful ones. The European yardsticks are the criteria of 30% market share threshold and hardcore restrictions. The VBER includes new provisions on online intermediation services, which demonstrate modernisation of the vertical regulation. The recent development of the VBER can offer some ideas for the Korean guidelines on unfair trade practices. Nevertheless, the European emphasis on the digital regulations, such as the Digital Markets Act and the Digital Services Act, together with the VBER may impede consumer welfare and efficiency. The current approaches in the EU reveal possible shortcomings from a regulatory capture and a regulatory thicket. This article aims to compare the recent development of case law in Korea with that in the EU and to analyse the amended provisions in the VBER, thereby to provide suggestions for the Korean competition law and policy.