2 Thus, even scholars sceptical about ‘form-based’ substantive legal tests typically do not propose to substitute form-based enforcement with administrative or judicial discretion, but rather argue for stricter rules on evidence of consumer harm or actual anticompetitive effects.

Competition law scholarship, in turn, has developed numerous normative theories about how courts ought to apply rules from competition law doctrine to new and complex factual situations.Ī wide range of antitrust scholars with various legal and economic views could agree on the claim that competition law enforcement should be based on sufficiently clear legal rules that pre-exist the factual circumstances of the case, even though they would not agree on the content of those rules. Legal philosophers and theorists have long debated the question of how rules relate to the facts of individual cases to which they ought to be applied, what should be done when an individual case cannot be readily subsumed under an existing rule, and how the content of pre-existing law relates to the discretion of legal authorities in applying the law. This article comments on the General Court’s (GC) judgment in Google Shopping 1 from the perspective of the relationship between rules and individual cases, and between pre-existing law and administrative and judicial discretion.

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