EU 경쟁법상 객관적 정당화 사유에 대한 연구

초록

In any jurisdiction, there is an issue related to whether seemingly anticompetitive unilateral conduct by market-dominating firms cannot be held abusive due to legitimate commercial reason or efficiency advancement. The concept of objective justification under EU competition law, which is examined in this paper, has been developed by the European Court of Justice and the EU commission, rather than by provisions. However, the concept is problematic because it is not prescribed in Treaty or based on any clear theoretical framework but has been gradually or occasionally formed through decisions by the Court or the Commission. In the first place, it is not clear what the difference between Articles 101(3) and 102 of the Treaty on the Functioning of the European Union(TFEU) is. Even a consensus has not been made about whether otherwise abusive conduct can be justified by legitimate commercial reasons. The 2005 Discussion Paper includes opinions inconsistent with decisions by the Court. Despite all this disagreement, with the accumulation of many cases about objective justification, the position of the ECJ has been established and in particular the importance of objective justification is being more emphasized with the highlight on effects based approach. However, there are not many cases where objective justification is accepted because of traditional form based approach and a special responsibility incumbent on dominant firms or etc. The debate on objective justification in the European Union corresponds to that of business justification in the United States or justification reasons under the Fair Trade Act in South Korea. In the U.S., there have been a lot of cases and debates about the definition of business justification or what its standard for assessment is. In South Korea, there is no mention about it in the Guidelines for the abuse of market dominant position, while the Guidelines for Assessment of Unfair Trade Practices provides standards assessing the justification reasons of defendants. Therefore, it will be helpful regarding the effective enforcement of the law on the abuse of market dominant position if the Korea Fair Trade Commission clarifies the concept, status and role of objective justification reasons.

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