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Judicial perspectives on competition law – SHON – GFC 2017 OECD discussion

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OECD Directorate for Financial and Enterprise Affairs
OECD Directorate for Financial and Enterprise Affairs

This presentation by Donghwan SHON ( Presiding Judge of Goyang district court of Korea) was made during the discussion “Judicial perspectives on competition law” held at the 16th meeting of the OECD Global Forum on Competition on 8 December 2017. More papers and presentations on the topic can be found out at oe.cd/jpcl.

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Legal Interpretation and Enforcement Efficiency - Analysis of a price collusion case 2017. 12. 07 Donghwan Shon Presiding Judge, Goyang District Court, Korea
2 FACT • 5 beverage undertakings exchanged information and increased prices of all beverages. • None of the undertakings produce same kind of beverages. They produce different beverages, such as soda, mineral water, coffee, sports beverage and soybean milk. Price Collusion of 5 beverages undertakings 1 . 1
3 KFTC Decision 1 . 2 juice soda sports beverage mineral water coffee tea soybean milk # 1 Agreement price increase# 2 # 5 # 3 # 4 • Without defining the product market Korean FTC held that there was an illegal agreement.
 In price collusion cases, is it required to prove? 4 Issues 2 . 1 ① Relevant market ② Anti-competitiveness
 Relevant market is a tool to measure anti-competiveness, but not required in price collusion b/c of ① Obvious anti-competitive effects ② High costs of finding relevant market ③ Intent of agreement  Per se illegal 5 KFTC position 3 . 1
No undertaking shall agree with other undertakings by contract, agreement, resolution or any other means, to jointly engage in an act falling under any of the followings, which is unfair and anti- competitive. Practices which cause or may cause impacts on the determination of price, quantity, quality, or other terms or conditions of trading by intent of a certain undertaking, because of reduced competition in a relevant market. 6 Cartel Anti-competitive practice 4 . 1Korean Competition Law
7 Fines Relevant Market The relevant market means an area where any competitive relation exists or may exist, by the subject, stage or geographical area of a trade The FTC may impose upon an undertaking a fine not exceeding the amount equivalent to 10/100 of the turnover. and the turnover is earned by an undertaking within the illegal duration from selling goods in a relevant market. 4 . 2Korean Competition Law
8  Not all agreements are illegal  Only unfairly anti-competitive agreements are  Have to define relevant market as the first step to: ① Finding anti-competitiveness ② Calculating fines 4 . 3Korean Competition Law
 2-step analysis • 1st step : Define the relevant market 2nd step : Evaluate the anti-competitive effect • Different kinds of beverages do not satisfy SSNIP test  not in the same relevant market 9 Supreme Court Decision 5 . 1
10 Supreme Court Decision 5 . 2 Juice # 1 # 5 Soda # 2 # 4 mineral water # 1 # 2 sports beverage # 3 # 5 • KFTC should have defined the relevant product market first.
11 Balance between Various Considerations 6 . 1 Enforcement efficiency constitutionality market reality statutory interpretation Comments
 Do we need market definition in price collusion cases? ① Interpretation of law • Clear language  no way to circumvent • Prohibiting unfairly anti-competitive agreement ② Constitutional limit ③ Unique features of Korean market • Close relationship between players in small community • Different from US or Europe 12 6 . 2 Comments
 Finding middle ground ① Supreme Court found agreements anti-competitive even when KFTC failed to produce evidence or prove exact market share ② Very few KFTC decisions were reversed due to insufficient proof of anti-competitive effects 13 6 . 3 Comments
THANK YOU

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Judicial perspectives on competition law – SHON – GFC 2017 OECD discussion

  • 1. Legal Interpretation and Enforcement Efficiency - Analysis of a price collusion case 2017. 12. 07 Donghwan Shon Presiding Judge, Goyang District Court, Korea
  • 2. 2 FACT • 5 beverage undertakings exchanged information and increased prices of all beverages. • None of the undertakings produce same kind of beverages. They produce different beverages, such as soda, mineral water, coffee, sports beverage and soybean milk. Price Collusion of 5 beverages undertakings 1 . 1
  • 3. 3 KFTC Decision 1 . 2 juice soda sports beverage mineral water coffee tea soybean milk # 1 Agreement price increase# 2 # 5 # 3 # 4 • Without defining the product market Korean FTC held that there was an illegal agreement.
  • 4.  In price collusion cases, is it required to prove? 4 Issues 2 . 1 ① Relevant market ② Anti-competitiveness
  • 5.  Relevant market is a tool to measure anti-competiveness, but not required in price collusion b/c of ① Obvious anti-competitive effects ② High costs of finding relevant market ③ Intent of agreement  Per se illegal 5 KFTC position 3 . 1
  • 6. No undertaking shall agree with other undertakings by contract, agreement, resolution or any other means, to jointly engage in an act falling under any of the followings, which is unfair and anti- competitive. Practices which cause or may cause impacts on the determination of price, quantity, quality, or other terms or conditions of trading by intent of a certain undertaking, because of reduced competition in a relevant market. 6 Cartel Anti-competitive practice 4 . 1Korean Competition Law
  • 7. 7 Fines Relevant Market The relevant market means an area where any competitive relation exists or may exist, by the subject, stage or geographical area of a trade The FTC may impose upon an undertaking a fine not exceeding the amount equivalent to 10/100 of the turnover. and the turnover is earned by an undertaking within the illegal duration from selling goods in a relevant market. 4 . 2Korean Competition Law
  • 8. 8  Not all agreements are illegal  Only unfairly anti-competitive agreements are  Have to define relevant market as the first step to: ① Finding anti-competitiveness ② Calculating fines 4 . 3Korean Competition Law
  • 9.  2-step analysis • 1st step : Define the relevant market 2nd step : Evaluate the anti-competitive effect • Different kinds of beverages do not satisfy SSNIP test  not in the same relevant market 9 Supreme Court Decision 5 . 1
  • 10. 10 Supreme Court Decision 5 . 2 Juice # 1 # 5 Soda # 2 # 4 mineral water # 1 # 2 sports beverage # 3 # 5 • KFTC should have defined the relevant product market first.
  • 11. 11 Balance between Various Considerations 6 . 1 Enforcement efficiency constitutionality market reality statutory interpretation Comments
  • 12.  Do we need market definition in price collusion cases? ① Interpretation of law • Clear language  no way to circumvent • Prohibiting unfairly anti-competitive agreement ② Constitutional limit ③ Unique features of Korean market • Close relationship between players in small community • Different from US or Europe 12 6 . 2 Comments
  • 13.  Finding middle ground ① Supreme Court found agreements anti-competitive even when KFTC failed to produce evidence or prove exact market share ② Very few KFTC decisions were reversed due to insufficient proof of anti-competitive effects 13 6 . 3 Comments