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
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: | 01 Nov 2024 02:15 |
| URI: | http://eprints.lse.ac.uk/id/eprint/121954 |
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