해운법에 따른 공정거래법 적용 제외 개선방향 검토 -유럽연합의 컨소시엄 공동행위 적용예외(CBER) 종료 조치 및 서울고등법원의 에버그린 판결 분석을 중심으로-

The provision in Article 29 of the Shipping Act allows registered coastal cargo carriers (referred to as “coastal cargo carriers” hereafter) to enter into contracts or engage in joint actions (referred to as “agreements”) with other coastal cargo carriers (including foreign cargo carriers) regarding freight, vessel allocation, cargo loading, and other transportation conditions. However, such agreements must not unreasonably restrict participation or withdrawal. When a coastal cargo carrier (including foreign cargo carriers operating between domestic and foreign ports) enters into an agreement as per the first paragraph, they must report its content to the Minister of Oceans and Fisheries according to the regulations set forth by the Minister1. Additionally, Article 116 of the Monopoly Regulation and Fair Trade Act excludes the application of fair trade law to “lawful acts under other laws” The Korea Fair Trade Commission (FTC) determined that the collusion behavior among 23 domestic and foreign shipping companies regarding freight rates violated the reporting obligation under Article 29, Paragraph 2 of the Shipping Act and the consultation obligation under Paragraph 6. As a result, the FTC applied the Antitrust Law rather than considering it a “lawful act under other laws” and imposed a total of 962 billion won in penalty surcharges and corrective orders. On February 1, 2024, the Seoul High Court overturned the relevant decision against Evergreen Line(one of the shipping companies). The court held that even if there were competition law issues related to this joint action, the authority to regulate it lies with the Minister of Oceans and Fisheries, not the FTC. Since Article 29, Paragraph 5 of the Shipping Act does not specifically regulate penalty surcharges measures, the court’s decision suggests that recourse should be sought under the general Antitrust Law for unfair joint actions that require measures equivalent to penalty surcharges and those that substantially restrict competition in ways other than reducing the number of vessel operations or raising freight rates. The European Commission has decided to expire the Consortia Block Exemption Regulation (CBER) regarding the joint actions of regular shipping consortia. This decision took effect on April 25, 2024. The CBER exemption was deemed unhelpful or even detrimental in terms of consumer welfare, competition promotion, technological innovation, efficiency enhancement, and simplified administrative supervision. Based on a detailed investigation into the state of the maritime industry, this judgment aligns with the requirements of Article 101(3) of the Treaty on the Functioning of the European Union (TFEU). These requirements include contributing to productivity improvement, technological innovation, allowing a fair share for consumers in the benefits, and not providing the possibility of excluding competition for a substantial part of the relevant goods. If the FTC clarifies its jurisdiction over the types of joint actions that require measures equivalent to penalty surcharges and those that substantially restrict competition in ways other than raising freight rates, it could establish separate and independent regulatory authorities for each type. This would address concerns about the existence of “multiple equivalent regulatory authorities” raised by precedents, preventing infringement on the predictability for violators and enhancing legal stability. Therefore, for these two types of actions, it would be advisable to explicitly state from the outset that they fall under the regulatory authority of the FTC and include provisions specifying jurisdiction determination (classification of regulatory authority) through prior notification. Additionally, considering the analysis in EU reports, changes in the shipping industry environment, and the necessity of regulating joint actions, legislative measures could exclude joint actions related to fares from those allowed for transportation conditions. Taking into account the challenges in the revision process due to conflicts between relevant agencies and actors, this approach could lead to desirable improvements.