由「數位經濟競爭政策白皮書」談主管機關對歐盟競爭法的誤解

How EU Competition Law Is Misunderstood in the White Paper on Competition Policy by Taiwan’s Competition Authority

公平會於111年底前發表「數位經濟競爭政策白皮書」，說明我國競爭機關在數位時代面臨的挑戰及其未來因應策略與方向，文中在討論不同議題時，經常引用歐盟競爭法的規範與執行實踐，惟全文多處有說明不精確或引用謬誤的情形，恐影響白皮書的價值及公平會的權威性。主要問題包括：一、歐盟華碩案為「轉售價格維持」案件，非公平法所定之「聯合行為」，且該案亦不涉及「軸輻式卡特爾」行為類型的調查；二、將歐盟運作條約第101條有關事業勾結共謀的規定，不當地與禁止支配事業單獨濫用市場力的議題聯結；三、由於未能正確掌握歐盟的組織體系及法律架構，致規範引用錯誤。歐盟競爭政策前瞻創新，競爭法個案執行積極精準，惟我國在參考比較之前，宜有完整正確的認識，以免引喻失義，失去比較學習的意義。盼以本文引起各界對歐盟競爭法研究的重視與投入，當有助於我國競爭法制整體的改善。

Before the end of 2022, Taiwan Fair Trade Commission (TFTC) published its long-awaited“White Paper on Competition Policy in the Digital Economy”, through which TFTC clarifies the challenges it has faced and its strategy and plans for the future in digital economy era. However, when referring to EU competition policy and competition law enforcement practices in the White Paper, some flaws could be seen in some inaccurate statements and fallacies would undermine the White Paper’s readability as well as TFTC’s authority on those highly specialized subject matters. The author of this paper mentioned and discussed those misunderstandings. Firstly, the anti-competitive behaviors in the EU Asus Case concerns the implementation of“fixed or minimum resale price maintenance (RPM)”, i.e., a price-related vertical restriction by the accused enterprise, rather than the horizontal concerted practices as prohibited in the Taiwan’s Fair Trade Act. There was no investigation involving the so-called hub-and-spoke arrangement in the EU Asus Case, either. Secondly, Article 101 of the Treaty on the Functioning of the European Union (TFEU) outlaws the illegal horizontal or vertical coordinated behaviors which are based on meeting of minds between undertakings and manifested by a certain form of an agreement. That means this Article should not be confused with or misused for addressing problems relating to abuse of market power by dominant company’s unilateral actions. The incorrect referring to Article 101 TFEU within the context of“Abuse of Dominant Market Position”could be seen in the White Paper. Thirdly, due to a lack in comprehensive knowledge of EU institutions and legal hierarchy system, TFTC mistakenly quoted the EU regulations and guidelines. Due diligence and greater scope and depth of study into EU law are necessary before incorporating any EU rules or practices into our system. Hopefully, the points raised by the author can gain more attention from both the competent authority and the academia in Taiwan to help better improve the country’s competition law system and its enforcement.