Formalism in Competition Law

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

Introduction: What Keck and Mithouard Actually Said – and its Legacy

The European Court of Justice's judgment in Keck and Mithouard (joined cases C-267/91 and C-268/91 ECLI:EU:C:1993:905) is one of the crucial judgments in the development of the free movement of goods, and EU internal market law more generally. Keck generated a vast number of scholarly commentaries. Its legacy has continued to be widely debated following more recent judgments including Commission v Italy (trailers) (case C-110/05 ECLI:EU:C:2009:66) and Deutsche Parkinson Vereinigung (case C-148/15 ECLI:EU:C:2016:776). This Introduction aims to briefly revisit the developments leading to the Keck judgment, the central parts of the Court's reasoning, and its legacy in subsequent case law. It will conclude with a brief introduction to the four rewritings in this issue

Two Challenges for Neo-Brandeisian Antitrust

Several scholars and policy-makers have proposed a “Neo-Brandeisian” reform of U.S. antitrust law, aimed at reviving “republican” antitrust. Republicanism conceives of domination as inherently detrimental to freedom. Republican antitrust considers antitrust law as an “institution of antipower,” aimed at dispersing economic power. This paper sets out two key challenges to the Neo-Brandeisian reform agenda and argues for legal formalism to address them. First, republicanism would alter the normative justification, but not necessarily the content of antitrust law. Neoclassical antitrust law does not broadly reflect a Schumpeterian endorsement of dominance. Rather, its epistemological priors and methodology entail skepticism about the mere presence of economic power. Thus, mainstream antitrust law and policy remain unfazed by the Neo-Brandeisian claim that antitrust should target domination instead of consumer welfare. Second, Neo-Brandeisian reform proposals are inherently polycentric. How Neo-Brandeisians aim to balance distinct values including the competitive process, the harm of concentrated power, and the protection of democracy and egalitarianism has remained unclear. This paper argues that both challenges demand for a formalistic approach to Neo-Brandeisian antitrust. Compared to a case-by-case approach, adopting general rules through legislative or administrative decision-making may legitimately overturn current precedent, incorporate alternate methods of measuring power and competitive harm, and pursue a variety of republican goals. Neo-Brandeisian formalism would essentially reinvigorate the Harvard school’s insight that multiple purposes—including both efficiency and republican liberty—can be attained by formalistic rules.<br/

Is the Primacy of EU Law Based on the Equality of the Member States? A Comment on the CJEU’s Press Release Following the PSPP Judgment

In response to the BVerfG's PSPP judgment, the CJEU issued an unprecedented press release in which it claimed that national courts must give full effect to EU law because this is the only way to ensure the equality of the Member States. While the press release does not contain the word “primacy,” the obligation to give full effect to EU law clearly implies primacy of EU law. This article provides a constructive and critical analysis of the press release's “equality argument.” First, it demonstrates how the CJEU most likely borrowed it from a recent article by Federico Fabbrini, and how the argument is virtually identical to Kelsen's defense of international law primacy. Second, it criticizes the equality argument for being inconsistent with the CJEU's case law, and shows how it is either wrong or tautological. After suggesting three possible reasons why the press release nonetheless justifies primacy in this way, the article concludes by showing how the CJEU's case law is better conceptualized from a Hamiltonian perspective in which full effect is a goal rather than a means

The Transformation of the Economic and Monetary Union:Solidarity, Stability, and the Limits of Judicial Authority

In recent decades, access to primary health care has become a crucial issue for health policy planners and researchers. One of the fundamental problems is inequitable access to health care due to imbalanced resource distributions between health care providers and population location. Accordingly, this study aims to examine the spatial access to Community Health Centers (CHC) in the Asmat district, one of the most isolated regions in Papua, Indonesia. We conducted the study using a two-step floating catchment area (2SFCA) method to quantify accessibility value to primary health care of each village in the district of Asmat. By taking five distance thresholds ranging from 5 to 25 km with an increment of 5 km, the results indicate that distance has a varying impact on each village. For example, within a 5-km distance threshold, 74% of villages have a zero score or have no access to CHCs, 22% have a score &lt; 100, while only 4% of villages have a score &gt; 100 or meet the minimum score recommended by World Health Organization (WHO). Two major related factors of these geographic disparities are the unequal distribution of CHCs and the high population dispersion. As an attempt to provide equal access to health care services, these results suggest that spatial access should be conscientiously considered by health planners and policy makers

Preface: Rewriting Landmark Judgments of the European Court of Justice: A New Project for European Papers and a New Way of ‘Doing EU Law’

This preface to the new series What ... Should Have Said: Rewriting Landmark Judgments of the European Court of Justice introduces the project and its rationale. Legal scholars typically critically analyse court judgments so as to provide a "soft power based" check on judicial reasoning and provide doctrinal and normative guidance for courts in future cases. Notwithstanding the merits of legal scholarship, especially scholarly critiques of case law invites the question of how these scholars concretely would have decided the respective cases. What ... Should Have Said provides a new way of "doing EU law" by asking both junior and senior EU legal scholars to literally rewrite landmark judgments of the European Court of Justice