By: Pablo Ibañez Colomo (Chillin’ Competition)
As expected of an academic re-entry, I recently uploaded a new paper on SSRN titled ‘Form and Substance in EU Competition Law’. The paper delves into the resurgence of formalism in discussions surrounding competition law within the European Union (EU). Although formalism has made a comeback, the nature and depth of current debates distinguish themselves from those of the past.
In the 1980s and 1990s, formalism faced criticism from proponents of the ‘effects-based approach’ who advocated for prudence in the enforcement of competition law provisions. However, in recent years, formalism has come under scrutiny for a contrasting reason. Prominent commentators and practitioners view formalism as an impediment to effective policy-making. From this viewpoint, employing structured legal tests (such as the three Magill conditions or the ‘five criteria’ introduced by the Court in Intel) could hamper authorities in addressing anticompetitive conduct.
In light of these developments, the paper endeavors to clarify the notion of formalism (or a form-based approach). It appears that the term encompasses varied interpretations depending on the context. Originally, formalism referred to an approach where (i) categorization and (ii) lawfulness of practices hinged solely on their form. However, over time, the meaning has evolved. For some, the treatment of conduct as ‘by object’ is synonymous with formalism. For others, the utilization of structured legal tests (as opposed to unstructured or ‘fluid’ approaches) also embodies this phenomenon…