Dominant Position of The Market - Assignment Example

As such, the concept of “location” has created an internal paradox within this new business model, resulting from the evolution of novel legal issues, where “location returns very much to the forefront”2.The evolution of the internet business model through the proliferation of e-commerce and has raised novel legal issues, which highlight the competing ideologies at the center of the debate pertaining to competition law and the interpretation of Article 82 in relation to the contemporary business marketplace3.

In particular, the need to protect consumers through the effective competition on the one hand, whilst facilitating the development of innovation and new markets has brought the debate regarding Article 82 and the need for reformulation and categorization of existing EC competition rules in order to address business realities.Indeed, it is submitted that the problematic application of Article 82 to intellectual property law rights (IPR) symbolizes the inherent conflict between innovation and protection against abuse of monopolies, which is the overriding purpose of Article 82.

The inherently monopolistic nature of intellectual property rights has proved particularly problematic in EC competition cases, particularly in the context of the essential facilities doctrine4.Moreover, Shah highlights the point that on the one hand the protective nature of IPR inherently undermines competition law’s purpose to eliminate abuse of monopolies and that “the increasing importance of intellectual property protection in international trade evinced by the Preamble to the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) and the increasing prominence of IPR in emerging markets and businesses have intensified the battle between IPR and competition law5.

In turn, the competing ideologies at the center of the battle between competition law and a free market have fuelled legal uncertainty, which has further created problems in implementation in light of Article 82 on the one hand and Article 295 of the EC Treaty on the other, which provides that “the Treaty shall in no way prejudice the rules in the Member States governing the system of property ownership”.