2022年公平交易法執法之回顧及展望

本文之目的，在於針對2022年公平交易法之發展進行簡要回顧。藉由實務案例分析以掌握我國競爭法主管機關及法院之觀點，同時探求法規範修正背後的可能脈絡。
本年度之重點案例，如屏東縣化製場聯合案，該案中地方政府介入及促成聯合行為之事實，使行為之罰則受到公平會免除；在民營電廠案中，最高行政法院四個合議庭表達了統一的見解，使得核心卡特爾案件中「精確」界定市場之必要性受到緩和，具有高度之參考價值。又本文試著分析全聯大潤發結合案中，公平會所考量之定價策略、企業社會責任等因素在競爭法上之意義為何。並藉由Microsoft與Nokia結合案中之爭議，試著梳理公平法施行細則於2022年修正之背景。此外，在數位經濟競爭政策白皮書中的兩項重大變革：「維持轉售價格之合理原則化發展」及「相對市場優勢地位之否定」，本文試著從以往之執法軌跡，分析此二變革與現行法規範間之齟齬。最後，公平會修正不實廣告處理原則後，確立廣告包含以「特定多數人」為對象之解釋觀點，並且重新將建材設備（如氣密窗、馬桶）納入不實廣告的適用範圍，此等趨勢皆相當值得注意。

2022 Annual Review of Developments of the Fair Trade Act
This article summarizes and comments several important Fair Trade Act developments in 2022 and analyzes the perspective of recent implementation by Taiwan Fair Trade Commission(TFTC) and the courts.
This article analyzes five cartel decisions made by TFTC and the Independent Power Producer(IPP) Cases delivered by the Supreme Administrative Court in 2022. One significant aspect regarding the implementation of cartel regulations is that the TFTC exhibited relatively lenient attitude toward cartels facilitated or accelerated without legal authorization by other central or local government departments. And in the Independent Power Producer (IPP) cases, all four courts of the Supreme Administrative Court reached a unanimous opinion on the question of whether it is necessary to define a fully specific market in hardcore cartel cases.
About the merger control, there were several interesting developments. For instance, in the PX Mart/ RT-Mart case, according to result of economic analysis, the merger could reduce the price pressure from outside competitors and raise serious anticompetitive concern; however, taking the downward price pressure from the inside of PX Mart itself into account, TFTC approved the merger with several behavioral remedies. And TFTC revised the article 8 of Enforcement Rules of Fair Trade Act which establishes the rules determining the responsibility for proposing a merger notification to TFTC. The change could be attributed to the Nokia/Microsoft case in 2014, but the article insists that the revision does not change the key issue and the result in Nokia/Microsoft case: TFTC could still require remedies toward the undertaking who sold its assets and just want to leave the market.
White Paper on Competition Policy in the Digital Economy, one of the most important achievements by TFTC in 2022, showed several important changes of direction. The article picks up two important topic discussed in the White Paper and by TFTC in 2022: the non-statutory rule of reason development for Resale Price Maintenance(RPM) and the substantially abolishment of Relative Market Power. Both the changes signify a significant departure from the established statutory black letter law and the traditional implementation approach. Furthermore, there is not compelling foundation to support the changes except for little suspicion based on economic theory. Due to the word limit, the article mainly focuses on the difference between the traditional track and the new development in 2022.
The developments in 2022 regarding the Fair Trade Act showcased some significant shifts in the implementation and interpretation of competition authority and courts. Understanding these changes and their possible background will be crucial for stakeholders navigating the complex realm of our competition law in the era full of changes and challenges.