APPC Homepage

This article aims to examine recent cases of the Korea Fair Trade Commission (‘KFTC’) regarding mergers and acquisitions under the Korean Competition Law and analyze their normative validity. Accordingly, two cases are selected as target cases. One was the merger of Microsoft and Nokia in 2015(‘MS/Nokia’), and the other was the merger of SK Telecom/SK Broadband and CJ HelloVision in 2016(‘SKT/SKB/CJHV’). The former was closed by a consent decree, and the latter was blocked.

The examination and analysis in this Article are conducted in common in both cases, and this is a distinction between the definition of the market and the assessment of ant competitiveness in accordance with the conceptual framework of the KFTC for analysis constructed for the purpose of intensive assessment. Differences in case management affect the scope of analysis. MS/Nokia only deals with the definition of the product and the construction of the theory of competitive damage, since KFTC has not stepped into the anti-competitive judgment. In contrast, SKT/SKB/CJHV is considering defining related markets, determining the anticompetitive nature of horizontal mergers, and vertical mergers. The problems of judging anti-competitiveness include devising conceptual framework for analysis, evaluating the theory and methods of competitive damage, and proving anti-competitiveness.

This paper summarizes as follows: The KFTC’s decision on MS/KFTC agreement is also notable for determining what competition laws should be to apply to vertical mergers between mobile patents and mobile device businesses by defining the mobile patent technology market separately at the market definition stage.

KFTC’s SKT/SKB/CJHV decision deserves credit for its efforts as much as possible to construct theories of competitive harm and prove it in relation to two categories of horizontal merger and one category of vertical merger. It is regrettable, however, that such efforts have resulted in the past results, which weighed heavily on market-concentration factor. We should have paid more attention to how the scope and extent of competition restrictions imposed on the parties of merger by other market participants would change.