The Future of IP-competition Conflicts in EU Law

23 Pages Posted: 24 Jun 2019

Date Written: June 23, 2019


The area of conflicts between IP and competition law in EU law offers an interesting case study of the transformative impact of EU integration. IP‐competition conflicts form part of the CJEU’s jurisprudence since the very early days of the EU. Nevertheless, the Court’s legal reasoning has been transformed significantly over time by three crucial evolutionary moments in EU law: (1) the Europeanization of IP law (2) the modernization of EU competition law and (3) the elevation of the Charter of Fundamental Rights of the European Union to a primary source of EU law.

When analysing the CJEU’s legal reasoning in cases of IP‐competition conflicts over time, it is possible to identify five different approaches in legal reasoning: a conflict of competences, a conflict of laws, a private law, an economics, and a fundamental rights approach. The first four parts of the paper are dedicated to surveying the CJEU’s case law on IP‐competition conflicts, explaining the nature of these five approaches, and showing that they can be linked to the three evolutionary moments at the IP competition interface in EU law.

The last part of the paper seeks to answer the following question: Which of these five different approaches could be most adequate for the Digital Single Market project? In an economic environment where the EU Member States and the EU Commission are aiming at growing e‐commerce and the production of digital assets, which are often protected by IP rights, IP‐competition conflicts are bound to increase. To ensure a legal environment that provides legal certainty and equal conditions for firms to thrive across EU Member States without hurting consumers, it is important to understand the implications of different options in legal reasoning that the CJEU has at its disposition.

Keywords: EU competition Law, IP law, Conflicts between competition and IP law, Court of Justice, Digital single market

JEL Classification: K21, K29, K40

Suggested Citation

Schmidt-Kessen, Maria José, The Future of IP-competition Conflicts in EU Law (June 23, 2019). Copenhagen Business School, CBS LAW Research Paper No. 24 (2019), Available at SSRN:

Maria José Schmidt-Kessen (Contact Author)

Copenhagen Business School - CBS Law ( email )

Porcelaenshave 18B, 1
Frederiksberg 2000

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