ScholarWorks@숙명여자대학교

초록

Traditionally competition agencies preferred divestiture as merger remedy. However, as the development of digital economy brought about an increasing number of non-horizontal mergers, the application of behavioral remedies, or structural remedies other than divestiture, continued to increase. In the EU the trend was more remarkable than in the US, and the pros and cons of the trend have been debated. Meanwhile, in the US, the efficacy of overall merger remedies, including both structural and behavioral remedies, was severely criticized. Based on that criticism, a no-remedies policy was suggested whereby competition agencies shall enjoin anti-competitive mergers rather than negotiating remedies in the merger review process. The policy wielded strong influence upon both the US Department of Justice and the Federal Trade Commission. But the adequacy of the policy was also debated. As it gets more and more difficult to predict the efficacy of merger remedies in rapidly changing economic conditions, various measures were suggested to enhance the effectiveness of merger remedies in traditional setting. There were also suggestions of novel alternatives which went beyond the traditional type or method of merger remedies. It is true that the information asymmetry between merging parties and competition agencies may significantly reduce the effectiveness of merger remedy. However, by blocking a merger, not only the occurrence of anti-competitive effect but also the generation of pro-competitive effect, such as increase in efficiency, might also be prevented. This concern can be greater in platform mergers which affect multiple markets. In other words, it is inevitable to apply merger remedies rather than simply blocking a deal in some cases. Thus we need to listen to the suggestions to enhance the effectiveness of merger remedies mentioned above rather than rigidly going for a no-remedies policy. In particular, this article emphasizes measures to mitigate the informational disadvantage of competition agencies. However, on the other hand, an unwavering principle should be firmly established that an anti-competitive merger should be enjoined, so that competition agencies could secure leverage to negotiate strong remedies. Thus this article recommends the Korea Fair Trade Commission to more actively enjoin mergers which exhibit prominent anti-competitive effect.

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