YOON&YANG

The examiner introduced an Examiner Report issuing a corrective order and imposing administrative surcharges to the KFTC on the ground that the four duty-free store enterprisers had formed an agreement to restrict the invitation of brands already hosted by stores of competitors within the market for Incheon Airport duty-free stores (i.e., agreement to restrict transacting counterparties) and that the Incheon International Airport Corporation (IIAC) had caused such duty-free store enterprisers to form the foregoing agreement.

Yoon & Yang LLC represented the IIAC and showed that there was no agreement that restricted the transacting counterparties of competitors by offering relevant evidence and thereby persuaded the KFTC to find that the examiner had failed to provide sufficient evidence to establish the presence of the alleged cartel and that, even if such agreement was found to exist, no anticompetitiveness existed. According to such findings, the KFTC issued a “non-violation” decision on May 17, 2018.

The issues in this case involved whether the presence of the suspected cartel should be established when the suspected statutory violation was inconsistent with the content of the agreement prepared among the enterprisers as well as the meaning of the act of making the enterprisers engage in a cartel. Additionally, this case is meaningful based on the fact that the KFTC had affirmatively considered the issue of whether consumer welfare was harmed in reviewing anticompetitiveness. Additionally, this case is also procedurally significant since a cartel was excluded at the KFTC level rather than at the court level.