Competition Law

04/11/2025

🇯🇵 In Japan, it seems the topic is now firmly on the radar.

Rashid Baxter, “Self-learning singled out as most challenging algorithmic pricing risk,” GCR (Nov 3, 2025) https://globalcompetitionreview.com/article/self-learning-singled-out-most-challenging-algorithmic-pricing-risk

In this interview, Aoki (公正取引委員会) said that [self-learning algorithms may instead push businesses towards collusion as an optimal solution for profit maximisation] and then stressed that [agencies would have to find ways of linking liability to those who wrote the algorithm, or those that deploy it in their businesses, she said. “That would be a completely different frontier.”]

I’m not well-versed in technology, so this might be a naïve question, but—

if firms are driven by profit maximisation, and algorithms are designed purely based on instrumental rationality, then why do pricing algorithms in theory converge to colluding? Wouldn’t it actually be more profitable to collude first and then defect?
* However, I just realized that, according to Calvano et al. (American Economic Review 2020), "the algorithms consistently learn to charge supracompetitive prices, without communicating with one another. The high prices are sustained by collusive strategies with a finite phase of punishment followed by a gradual return to cooperation." Interesting... https://www.aeaweb.org/articles?id=10.1257%2Faer.20190623

My current intuition is that, if any algorithmic collusion happens, then the firms' claim that they had no involvement whatsoever will, at least in most realistic scenarios, be hard to accept. In such cases, the real difficulty seems to lie in competition authorities' investigative and evidence-gathering capacity (access to code, data, logs), rather than in any fundamental flaw in a choice-based competition law framework.

Alternatively, maybe, at least as far as purely self-learning, black-box collusion scenarios are concerned, much of the discussion about algorithmic collusion is simply an overblown concern about something that is unlikely to happen in reality.

See, other jurisdictions move: “EU Steps Up on Algorithmic Pricing Cartels, Joining the US and Other Jurisdictions” (Jul 16, 2025) https://riskandcompliance.freshfields.com/post/102kt76/eu-steps-up-on-algorithmic-pricing-cartels-joining-the-us-and-other-jurisdiction

Self-learning algorithmic pricing is a major concern because it can encourage collusion on key business decisions, but building successful antitrust cases to tackle those practices remains highly challenging, a senior Japanese enforcer has said. 

28/10/2025

Amid the ongoing discussions on the reform of Regulation 1/2003, an interesting—and, to me, appealing—argument was raised by the Netherlands Authority for Consumers and Markets (ACM).

(Per the GCR report, with minor wording changes) The ACM argued that 'the EU should move beyond the current coordination approach focused on case allocation and information sharing, toward a model where the European Commission makes joint decisions with NCAs. Such a model, it claimed, would strengthen competition law in an increasingly interconnected economy.' (https://globalcompetitionreview.com/article/acm-pushes-new-joint-decision-powers-in-antitrust-cases)

Surely, the Dutch authority’s proposal is about the enforcement system only within the EU. Yet I read it by applying its logic to the East Asian context—particularly that of Korea and Japan.

As far as I know, the Japan Fair Trade Commission 公正取引委員会 (JFTC) and the Korea Fair Trade Commission 공정거래위원회 (KFTC) have, in recent years, even discontinued their previous annual exchanges and now operate largely in isolation. Whatever the reasons (I guess it's perhaps due to the past clashes and political tensions during the Moon and Abe administrations), this seems undesirable at the present moment, given that the two economies are also becoming increasingly interconnected. In particular, considering the emerging ideas of a Korea–Japan / Japan–Korea Economic Coalition or Community (https://asianews.network/a-korea-japan-economic-community/ #:~:text=If%20South%20Korea%20and%20Japan,access%20and%20streamline%20production%20networks.), I believe that, as economic integration deepens, the need for discussion and research on competition governance within an expanding regional economic area will only grow stronger.

Unlike in the EU, however, it is difficult to imagine the creation of a supranational enforcement body—akin to the European Commission—between Korea and Japan. For that reason, I think, for competition scholars in this region, it is worth closely following how the Dutch proposal for a “truly joint decision model,” in which multiple authorities conduct a single joint investigation and reach a common decision, develops over time.

In my view, this is how the EU’s ideas should be reflected in the regional context—not by transplanting the DMA or AI Act (tailored to the Internal Market), but by reinterpreting its institutional vision in a way that fits the East Asian reality.

28/10/2025

Gucci, Chloé, and Loewe's RPMs decisions (practices were found as 'by object restrictions' under 101(1) TFEU)

* Commission fines fashion brands Gucci, Chloé and Loewe over €157 million for anticompetitive pricing practices (IP/25/2361, Oct 14, 2025) https://ec.europa.eu/commission/presscorner/detail/da/ip_25_2361

To my understanding, this case is noteworthy in that:
1) It marks the first RPM decision by the Commission in the recent seven years;
2) it shows that the 'brand image protection' argument (maybe relevant to the Coty case) is not the automatic justification for RPMs (see below); and
3) it signals further enforcement actions in this industry.

For a quick case summary, see 'European Commission fines Gucci, Chloé, and Loewe €157 million for RPM violations: a landmark enforcement of EU competition law' Lexology (Oct 21, 2025) https://www.lexology.com/library/detail.aspx?g=3661ad72-fc03-4464-a405-274dfac397b0 ("The Commission explicitly rejected any argument that brand image protection or luxury positioning could justify RPM under the legal framework.")

The European Commission has fined fashion companies Gucci, Chloé and Loewe for fixing resale prices, in breach of EU competition rules. The Commission\'s investigation revealed that the three companies

28/10/2025

An interesting case has emerged as Korea increasingly becomes, de facto, a weapons arsenal for NATO (per SIPRI). It concerns a practice of refusal to supply (more precisely, a vertical exclusive dealing agreement) in the production of the K9 self-propelled howitzer—a weapon now well known for its large-scale exports to Poland.

According to a press release dated 27 October 2025 (https://repokr.github.io/doc/press20251028.pdf), the Korea Fair Trade Commission 공정거래위원회 (KFTC) recently sanctioned a domestic defense contractor, EO Systems, Inc. (EO), for violating the Monopoly Regulation and Fair Trade Act (MRFTA) by excluding a rival firm, Woo Kyung Optics (Wookyung), from competition. The KFTC issued only a cease-and-desist order, without imposing further sanctions such as an administrative fine or criminal referral.

Specifically:
(1) EO and Wookyung compete in the market for a sighting device (panoramic telescope) used in K9 howitzers;
(2) a single supplier, Shinbo Co., Ltd. (Shinbo), holds a monopoly position in the market for a core component indispensable for producing the sighting device (azimuth counter assembly); and
(3) EO and Shinbo concluded a vertical exclusive-supply agreement that effectively excluded Wookyung from access to this essential input.

It is a textbook case of a vertical exclusive agreement. Although the press release provides no quantitative data, the KFTC’s reasoning seems reasonable, given the following circumstances—even if it lacks a detailed economic analysis:

(i) EO enjoyed a legal monopoly until 2008 and still retains an incumbent advantage, whereas Wookyung entered the market only in 2012; (ii) Shinbo, while small in scale, is the sole supplier of the component in question; and (iii) EO participated in the R&D project for the sighting device’s development in 2011 and has since maintained a quasi-exclusive partnership with Shinbo.

For me, what makes this case particularly interesting is not the substance, but the KFTC’s legal framing.

Instead of invoking Article 40 MRFTA (the analogue to TFEU Article 101 or Sherman Act § 1) and defining the conduct as a vertical exclusive dealing arrangement, the agency relied on Article 45 (Unfair Trade Practices)—closer in spirit to Section 5 of the FTC Act—and characterized the conduct as EO having induced Shinbo to refuse to supply Wookyung (treating EO as an instigator).

Does this framing make a difference? Certainly. Above all, it lowers the evidentiary threshold. Under the UTP provisions, the proof of anticompetitive effects generally requires a less stringent evidentiary standard than under the substantive provisions governing vertical agreements, let alone that for abuse of dominance. (For reference, a similar approach can be observed under Japan’s Antimonopoly Act.)

I don’t know whether such a legal technique is good or not. For now, I can only be sure that the KFTC has broader and more flexible competition law tools than its counterparts—and ones that actually work.

So why, then, does this agency still need more tools in its regulatory arsenal?

https://biz.chosun.com/en/en-policy/2025/10/27/UJCW3URJMZCWZOE7W332CP4A7E/

Fair Trade Commission orders EOSYSTEMS to stop blocking competitors in South Korea defense bids

17/10/2025

Reportedly, the Korea Fair Trade Commission 공정거래위원회 (KFTC) recently conducted on-site inspections at the premises of seven flour mill producers—Daehan Flour Mills, CJ CheilJedang, SAJO DongA One, Daesun Flour Mills, Samyang Corporation, Samhwa Flour Mills, and Hantop—over allegations of price fixing and shipping adjustment.

Although it seems to be officially explained that the investigation follows its previous probe into collusion in the sugar industry last year, it appears more correct to see that the inquiry was prompted by the direct presidential instruction on “managing prices of daily necessities” issued during the Cabinet meeting last September. As the attached article reports, the President explicitly ordered the Chair of the KFTC to “thoroughly check for any collusion in major food and supply markets such as sugar and flour.”

However, please don't get me wrong. This context does not necessarily imply that the KFTC’s enforcement action is groundless. On the contrary, it may be overdue—or perhaps just timely—given the highly concentrated market structure and the relatively high bread prices in Korea. According to the article, 'Korea’s consumer price index for bread stood at 129, higher than in the United States (125), Japan (120), and France (118). The average bread price per 100 grams was also higher in Korea, at 703 won, compared with France (609 won) and the United States (588 won).' People have been complaining about it. (About time! Now the government listens)

What Korea truly needs is strong and effective antitrust enforcement and consistent policy implementation across sectors!

Min-jeong Kim, 'Fair Trade Commission raids flour mills over suspected price fixing behind Korea breadflation' Chosun Biz (Oct 16, 2026) https://biz.chosun.com/en/en-policy/2025/10/16/DRFVKVJOCZFT5LSAYJZPY7SUAU/
_

Fair Trade Commission raids flour mills over suspected price fixing behind Korea breadflation

10/10/2025

Please, somebody let the Japan Fair Trade Commission, 公正取引委員会, know that Asiana Airlines, merged with Korean Air, on condition of returning slots for the route Incheon-Kansai, disrespecting the remedy commitments or detouring them. So bad (if the report is true)

大韓航空に統合を控えて仁川~大阪(関西)路線往復「スロット(運航時間帯)」3個を返却したアシアナ航空が新しくスロット3個を割り当てられ以前のように運航を再開し低費用航空会社(LCC)らと葛藤を生じさせている。9日、航.....

10/10/2025

Reportedly, on September 24, OpenAI (the operator of ChatGPT) appealed to EU antitrust chief Teresa Ribera about its difficulties in competing with entrenched tech giants like Google, citing their allegedly consumer-lock-in strategies, and seemingly urged the Commission’s intervention on competition grounds. It appears that even before the complaint, the Commission "was already examining how large, vertically integrated platforms were leveraging their existing market positions in AI, including by reviewing specific intercompany agreements."

Jaspreet Singh et al, 'OpenAI flags competition concerns to EU regulators' Reuters (Oct 10, 2025) https://www.reuters.com/legal/litigation/openai-flags-competition-concerns-eu-regulators-2025-10-09/

Samuel Stolton, 'OpenAI Warns EU Antitrust Watchdogs of Big Tech’s Data Dominance' Bloomberg Law (Oct 9, 2025) https://news.bloomberglaw.com/business-and-practice/openai-warns-eu-antitrust-watchdogs-of-big-techs-data-dominance

OpenAI said on Thursday the arguments it presented to EU authorities last month mirrored its public statements about competition in the AI space, particularly in the context of antitrust investigations into Alphabet's Google.

05/10/2025

🇯🇵🇰🇷 Both the 공정거래위원회 (KFTC) and the 公正取引委員会 (JFTC) are expecting to expand their organizations in 2025.

First, on August 29, the JFTC announced its budget request for fiscal year 2026, seeking an effective increase of approximately 5.7% over the previous year. (See, https://www.jftc.go.jp/en/about_jftc/index_3_250903.html)

In terms of enforcement, the largest budget allocation, around 12%, is devoted to addressing abuse of superior bargaining position, including the enforcement of the recently amended Subcontract Act and the newly established Freelancer Act. The next largest category is general Antimonopoly Act enforcement, around 4.35%. And, for "improving the competition environment", including digital market studies, the JFTC allocated around 2.44%. Notably, this category encompasses the budget for the newly introduced Mobile Software Competition Act (MSCA), scheduled for implementation by the end of the year.

Regarding personnel, the budget request emphasizes the establishment of several new director-level posts, as well as a notable increase of 59 officials dedicated to the enforcement of 'fair transactions' (I think, this indicates the prohibitions of abuse of superior bargaining position). An additional 4 officials are requested for implementing the 'competition policy', which may be related to the introduction of MSCA, although it's not clear from the documentation.

Second, Korea. While not yet finalized, staff expansion appears very likely following presidential instructions in June and again on September 30.
(See, https://www.koreaherald.com/article/10506804 and
https://www.sedaily.com/NewsView/2GY3QHKFJU )

On September 1, it was reported that the KFTC is considering increasing its headcount by around 150 employees, roughly a 20% rise from 647 in February, and reorganizing its divisions by establishing a new Subcontracting Bureau and a Franchise Bureau, bringing together existing units to strengthen enforcement against abuse of superior bargaining position, in a move similar to Japan. The agency is also considering allocating more officials for economic analysis, adding a second Economic Analysis Division.
(See, https://www.khan.co.kr/article/202509012043015 )

Officially, on October 1, the KFTC announced a dedicated task force to improve law enforcement and streamline case procedures. Although staff expansion was not mentioned, it is certainly part of the background.
(https://repokr.github.io/doc/press20251001.pdf

23/09/2025

On Sep 18, the Korea Fair Trade Commission 공정거래위원회 (KFTC) piloted a silo remedy (as was in Google/Fitbit of the EU) to prevent data consolidation arising from a joint venture between a Korean and a Chinese e-commerce platform. This was a case where the 3rd-ranked e-commerce (GMarket), well behind the top two oligopolistic platforms in Korea (NAVER; Coupang), formed a JV with Chinese Big Tech, Alibaba’s AliExpress. AliExpress is already leading the cross-border e-commerce market in Korea, with a 37.1% market share.

I'm not very well aware of the case details, though, in the press release, the strong emphasis on data as a key competitive factor and feedback loops, where data fuels the formation of market-dominant power, looked quite notable. Obviously, this will not be the KFTC’s last data case.

See, press release: https://www.korea.kr/briefing/pressReleaseView.do?newsId=156708998&pWise=mSub&pWiseSub=C4

Meanwhile, against the backdrop of geopolitical tensions (i.e., US's pressure on Asian jurisdicitons to reduce reliance on, or tie with, Chinese Big Tech), this remedy seems to be praised as a strategic, technocratic move in other Asian countries, since the Korean agency well reframed the issue as a technical engineering problem, thereby sidestepping the pressure of a binary choice.

See, Tech in Asia, 'Will Korea’s Data Separation Rule Expand in Asia?' https://www.techinasia.com/question/will-koreas-data-separation-precedent-spread-across-asia

Commentators, like Hwang Lee (Korea University), raise a question about the effectiveness of the remedy, given the technical difficulties in monitoring the JV's data processing. He stressed that strong penalties must be followed to ensure compliance, as intended.

See, GCR, 'KFTC clears Alibaba joint venture with first-ever data remedy package' https://globalcompetitionreview.com/article/kftc-clears-alibaba-joint-venture-first-ever-data-remedy-package

Korea’s Fair Trade Commission has imposed the country’s first merger remedies restricting data consolidation, clearing Alibaba’s $1.9 billion joint venture with one of the country’s largest e-commerce platforms.

19/09/2025

Putting other contextual issues (like viewpoint competition) aside, as a competition law person, I firmly agree with her emphasis on the difference between 'regulation' and the 'enforcement' of competition law. This distinction really deserves special attention in Korea and Japan, where competition rules (MRFTA; AMA) are often referred to as 'regulation' (規制)—an undesirable linguistic practice, in my 'viewpoint', as it misleads the orientation of competition law and policy. Upon such a 'viewpoint' that treats competition law merely as one form of various regulations, no meaningful innovation can be expected in emerging technology industries such as AI, I think.

"From a competition standpoint, regulations can further entrench incumbent players, because only those incumbents can afford to pay the costs of compliance. In fact, many powerful monopolists and incumbents lobby for regulations that raise barriers to entry and that ultimately harm market entrants and small businesses. By contrast, ... targeted [antitrust] enforcement strikes the right balance in emerging fields by finetuning the competitive conditions to make sure that the incentives are aligned for innovation to flourish. And if done correctly, timely, limited antitrust intervention can stave off the need for broad regulatory interference by letting the free market do what it does best."

The United States Department of Justice Antitrust Division
Assistant Attorney General Gail Slater Delivers Keynote at Fordham Competition Law Institute’s 52nd Annual Conference on International Antitrust Law and Policy (September 18, 2025)
https://www.justice.gov/opa/speech/assistant-attorney-general-gail-slater-delivers-remarks-52nd-annual-conference

(For my Korean network who is interested in, see my Korean translation of the speech: https://brunch.co.kr//116 )

공정거래위원회 公正取引委員会

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13/09/2025

Congratulations to the Japan Fair Trade Commission 公正取引委員会! Following its win in the RALSE case in March 2021, the agency has secured another clean appellate victory against EDION Corporation (a large consumer-electronics retailer in Japan) before the Tokyo High Court.

On September 12, 2025, the court dismissed Edion’s appeal in full and upheld the JFTC’s 2012 enforcement (as modified by the JFTC’s October 2019 hearing decision), finding an abuse of superior bargaining position (ASBP) over dependent suppliers. According to the JFTC, Edion forced suppliers to dispatch their employees for pre-opening store work and other store setup tasks. Specifically, the conduct was documented as 3,165 dispatches across 133 store openings involving 92 suppliers (initially 127 suppliers, reduced to 92 in the 2019 hearings). For these practices, the agency imposed a cease-and-desist order and a surcharge (=fine) (initially about ¥4.05 billion, reduced in 2019 to ¥3.032 billion). The court upheld these measures in full.

In my view, this win is highly significant.

As far as I know, it is one of five major ASBP cases* in which the JFTC issued both cease-and-desist orders and surcharges, following the introduction of mandatory surcharges under the 2010 amendments. Back in the 2010s, the agency sought to enforce the law more strictly in line with the amendments, but, strikingly, all addressees contested the decisions. To my understanding, such immediate and overt pushback—unusual in Japan’s business culture, in my view—combined with the legal uncertainty after the 2010 amendments, chilled ASBP enforcement. Now, however, the Tokyo High Court has issued a judgment fully supporting the JFTC.

This may be more of a hopeful expectation than a firmly grounded prediction, but I believe the RALSE and now Edion** are encouraging outcomes that should bolster the JFTC’s commitment to pursue full-dress ASBP cases, with orders and hefty surcharges, beyond accepting commitments from businesses.

* EDION (2012) → Direx (2014.1) → Toys “R” Us (2014.12) → Sanyo Marunaka (2019.3) → RALSE (2019.10)
** By way of exception, in Sanyo Marunaka, the Tokyo High Court set aside the JFTC’s decision on procedural grounds in December 2020, followed by a new JFTC decision in January 2021.

12/09/2025

The EU's Digital Markets Act (DMA) and similar competition rules should compel leading video game platforms such as PlayStation and Xbox to share their key user data with developers, according to industry executive Chris Hewish. Hewish argues that console makers like Sony and Microsoft hold a significant advantage by having access to detailed platform and user insights—information that game developers cannot access. This data includes metrics like user search queries, device usage, payment methods, and time-of-play, all of which help platforms optimize marketing and compete with third-party developers.

Currently, major tech companies like Microsoft, Google, and Apple are designated under the DMA, but Sony PlayStation is not. Most enforcement under the DMA has targeted mobile app stores rather than premium gaming consoles. Hewish calls for competition authorities to broaden their focus to include consoles, highlighting Microsoft's vast EU subscriber base as meeting DMA thresholds. Opening up platform data would help "level the playing field" in premium gaming and foster fairer competition between platforms and developers.

Source: Rashid Baxter, 'DMA should target PlayStation and Xbox data advantage, industry executive says', Global Competition Review (11 September 2025) https://globalcompetitionreview.com/article/dma-should-target-playstation-and-xbox-data-advantage-industry-executive-says

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The EU's Digital Markets Act and similar ex-ante competition rules in other jurisdictions should force leading video game platforms such as PlayStation and Xbox to remedy their competitive advantage by sharing key data with developers, a video game industry executive has said.