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Form and substance in EU competition law

Ibáñez Colomo, Pablo ORCID: 0000-0001-7019-0645 (2023) Form and substance in EU competition law. World Competition, 46 (4). 401 - 428. ISSN 1011-4548

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Abstract

Discussions around formalism have made a comeback in the competition law community. This paper seeks to clarify, first, what term means – and does not mean. It is, in essence, an approach to the identification and the evaluation of the lawfulness of practices that relies on their formal features – and their formal features alone. Formalism should not be conflated with, inter alia, the ‘by object’ treatment of conduct and with the use of legal categories (which are a necessity). Second, the paper shows that the Court has consistently placed substance above form in its case law – as cases like Super Bock and Slovak Telekom show. On the other hand, competition authorities appear to favour formalism. The tension between the Court’s and authorities’ favoured approaches might be a source of legal uncertainty and might result in the fragmentation of the legal system along several dimensions.

Item Type: Article
Official URL: https://kluwerlawonline.com/Journals/World+Competi...
Additional Information: © 2023 Kluwer Law International BV, The Netherlands.
Divisions: Law
Subjects: K Law > K Law (General)
H Social Sciences > HD Industries. Land use. Labor
Date Deposited: 06 Feb 2024 16:21
Last Modified: 03 Oct 2024 22:45
URI: http://eprints.lse.ac.uk/id/eprint/121954

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