EU competition law and the rule of law: justification and realisation

This thesis explores the justification for and realisation of the formal rule of law ideal in EU competition law. It argues that the form of market intervention for determining the legality of business conduct matters, although European enforcement has not always appreciated its significance. It defends aspirations towards the formal rule of law in the fundamentally economic endeavour of competition policy: determining lawfulness through the application of generalised, equally-applicable, and comprehensible norms, subject to robust judicial review. While this less-discriminating form of market intervention is necessarily imperfect when compared with conduct-specific evaluations of competitive consequences, thus inaccurately prohibiting the efficient and permitting the inefficient, more restrained and structured determinations of legality facilitate the realisation of other important values. Part I justifies efforts to approximate the formal rule of law ideal in competition policy. Both the Chicago School of antitrust and German Ordoliberalism indicate support for enforcement through the application of generalised norms that are administrable and comprehensible to businesses. Their perspectives on the legitimate form of market intervention are woven into broader works of jurisprudence, liberal constitutional theory, and institutional economics, thereby demonstrating the political and economic significance of the formal rule of law ideal for competition enforcement. Part II evaluates its mixed realisation in EU competition policy. On the one hand, the Commission has often prioritised the effective pursuit of its ends to make markets work “better”, seeking to maximise the scope for discretionary interventions as it deems necessary and perhaps facilitated by deferential judicial review. On the other hand, certain presumptions and multi-stage tests for determining legality in EU competition law incorporate efficiency considerations ex ante into generalised norms that afford normative certainty to firms. Albeit imperfect, these are interpreted as admirable attempts to optimally reconcile economically-accurate ends and a means approximating the formal rule of law