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디지털 경제 시대의 기업결합 규제 ― 혼합결합의 경쟁사업자 배제효과를 중심으로 ―
유시환 ( Si Hwan Yu ) 연세대학교 법학연구원 2023 연세법현논총 Vol.1 No.2
Compared to the horizontal or vertical mergers, conglomerate mergers are less likely to cause an anti-competitive effect, but more likely to increase efficiency and consumer welfare. In this regards, conglomerate mergers were not a main concern of the merger regulation practice although conglomerate mergers are the most frequent type of merger. The main reason for the view that the anti-competitive effect of conglomerate mergers is less likely to occur is that the relevance between the business areas operated by the merging parties is low. However, considering the recent increase in the connectivity between various business areas operated by online platform companies, it is necessary to examine the anti-competitive effect of conglomerate mergers more thoroughly than before. In particular, as platform companies with large online platforms have recently expanded their business scope through conglomerate mergers with companies in various markets, the issue of the “complex dominance” has emerged, which means the circumstances that platform companies secure a significant level of market power in new business areas by utilizing their market power in existing business areas. In the process of the business scope expansion, a platform company is likely to transfer its market power in the platform market to a newly entering market and engage in an anti-competitive behavior, which may restrain competition in the newly entering market. In determining concerns about this type of competition restriction, the criteria regarding the foreclosure effect (effect of excluding competitors) can be mainly used among the criteria under the current Merger Examination Guideline(the “Guideline”). However, the Guideline stipulates about the criteria to determine the foreclosure effect of the conglomerate merger quite simple. In this context, an arbitrary judgment by the competitive authority can occur, and it is difficult to secure the predictability of the merging companies. Considering this, with regards to the formation of the complex dominance through the conglomerate mergers, it is needed to specify the criteria of the foreclosure effect under the Guideline in order to enable to determine whether there is a risk that the acquiring company excludes the tarket companiy’s competitors by using its market power in the existing market as a leverage. To this end, the entrenchment theory of the US and portfolio effects theory of the EU, and the criteria to examine the non-cooperate effect (foreclosure effect) of conglomerate mergers stipulated in the non-horizontal merger guideline operated by European Commission can be referred.
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