INBCT 4

 

Freedom to Provide Services in Relation to Competition Laws and Territorial Individual Property Rights

Professor Minna Mattila, (E-mail: mimaja@econ.jyu.fi, Phone +358-40-5778669), School of Business and Economics, P.O.Box 35/MaE, FIN40014 University of Jyvaskyla, Finland

 

 

Abstract

 

This study explores how the new legislation on Individual Property Rights has affected the mobile business operations within European Union. We will focus in the case of mobile phone content distribution within European Union. With this case we are going to elaborate how the harmonization of IPR legislation has or has not been progressing in the member states. Furthermore, we will show that even in the simplest cases of mobile phone content distribution such as ringing tones and videoclips, the freedom to provide services is hampered by the member states’ national IPR laws enforcement and therefore setting constraints to the protection of free competition on the market.    

 

 

Introduction

            European Union is attempting to harmonize the legislation as a whole. This is part of the aim to establish a single market without frontiers. According to several directives, the Community legislation is intended not to replace national law but to ensure compliance with the principles of equality of treatment, non-discrimination and transparency. This is especially the case in contract law. The competition laws are to ensure that the competition in the common market is not distorted. As the truly uniform IPR legislation still remains to be implemented, this waiting period is obstructing the free competition and freedom to provide services.

According to the directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorizations and individual licenses in the field of telecommunications services (Official Journal L 117, 07/05/1997, pp. 15-27) “…the regulatory regime in the field of telecommunications should be compatible and consistent with the principles of freedom of establishment and freedom to provide services and should take into account the need to facilitate the introduction of new services as well as the widespread application of technological improvements; whereas, therefore, general authorization and individual licensing systems should provide for the lightest possible regulation compatible with the fulfillment of applicable requirements…”

In this paper we will argue, that in practice this aim has not yet been achieved. Especially in the field of telecommunications the service providers get unequal treatment among the member states due to the favorable member state’s national legislation towards its own service providers. Establishing new ringing tones in mobile services becomes so expensive for anybody trying to enter the local markets from another member state, that the revenue sharing model is bound to have more negative dimensions than positive ones. In this way the legislation not only constitutes the local and outside service providers under different conditions in the same region, but makes it impossible for the outside service providers to estimate the costs of launching new service in another member state and therefore severely hampers planning profitable business operations in the field of mobile business.