Formalism in Competition Law

Click here to read the full article online

This article analyzes the meaning and role of formalism in competition law. Drawing on general legal theory and philosophy, this article conceives of formalism as decision-making constrained by rules, whereby rules exclude considerations from the decision-making process. It analyzes the degree to which per se rules and the rule of reason in U.S. antitrust law and the category of “by object” restrictions in EU competition law involve formalistic reasoning. It subsequently discusses the relationship between “legal form” and “anticompetitive effects” and the debate on “form-based” versus “effects-based” approaches to competition law. It concludes that “effects-based” approaches to competition law typically involve formalistic legal rules, thus deconstructing the well-known form–effect dichotomy. Finally, this article analyzes the normative relationship between formalism, type 1 and 2 errors, and legal certainty, and argues that this relationship is fundamentally shaped by beliefs about institutional competence and the allocation of decisional jurisdiction. The article concludes by arguing against pejorative conceptions of “formalistic” and “form-based” competition law. Competition law, like law in general, is inherently formalistic, albeit to a limited degree. Rather than the empty dichotomy of “form” versus “effect,” the central question in competition law is to which formalism it ought to be committed.