거래상대방 제한 구속조건부거래행위의 공정거래저해성 판단기준에 대한 검토 - 고어텍스 사건을 중심으로 - = Review of the criteria for judging fair-trade hindrance in restrictive transaction practices - Focusing on the Gore-Tex case -

다국어 초록 (Multilingual Abstract)

Recently, as transactions and consumption through the internet have rapidly increased, manufacturers are devising various measures to promote the efficiency of their sales. In competition law, “restricting the sale of products in the online markets” has attracted attention in the EU and Korea. In particular, the manufacturers’ restriction of distribution channels has been introduced as a “selective distribution system.” A selective distribution system is referred to as a vertical type of contract in which manufacturers set minimum standards for their distribution chain and agree to supply only to the distributors who satisfy these requirements. A selective distribution system can be used whether the distribution takes place offline or online or not. Also, in general, manufacturers are not legally obligated to disclose the selection criteria of the distribution network. In the online market, however, recently there have been problems, including the conditions that manufacturers introduce more restrictive conditions for online sales (internet addendums). Since manufacturers are concerned that the sale of their products at a lower price may lead to a decline in brand image, they place the restrictions on the transactions in the online markets such as open markets or price- comparison sites. Online distributors are dissatisfied with these restrictions.
Regarding the Gore-Tex case in Korea, the plaintiffs are manufacturers of GORE-TEX fabrics, an intermediate good, and the plaintiffs’ act corresponds to restricting the trading conditions (distribution channels) of their counterparties, the producers of the finished product. Whereas the significant cases in Europe deal with the problem of ‘imposing certain transaction conditions on distributors who sell the finished products,’ the Gore-Tex case is associated with the plaintiffs imposing certain restrictive transaction conditions on customer companies which sell the finished products based on the intermediate product that the plaintiffs supply. Since the core issue of the Gore-Tex case is related to the intermediate product rather than the finished product, the adverse effect on the market competition is likely to be broader than the imposition of restrictions on the distributors of finished products.
In other words, based on its reputation or market power, if a company that supplies a significant raw material or an intermediate good restricts the finished product manufacturers’ transaction by, for example, the conditions about the distribution channels, the competition between intermediate goods as well as the competition between finished products can be limited in the market. Such restrictive behavior can be seen as more inhibiting the fair trade, compared to a general selective distribution system.
Therefore, the criteria for determining fair-trade obstruction for restricted trading conditions using the manufacturer’s selective distribution system of the finished products should not be applied to the restricted trading conditions of the manufacturers with intermediate goods. When analyzing the manufacturer’s restricted trading conditions in relation to the intermediate goods, the characteristics of the intermediate goods, the structure of the market, and the anti-competitive and pro-competitive effects resulting from the conduct should be thoroughly analyzed to determine whether or not the transaction falls under the category of an illegal conditional transaction.

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