Form and Substance in EU Competition Law

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 ofpractices 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.