EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Antitrust Treatment of Sharing Economy Actors Viewed through New Institutional Economics Lens. The Case of Uber. Jiří Kindl Charles University in Prague Faculty of Law, Department of Commercial Law náměstí Curieových 901/7, Prague, 116 40 and Skils s.r.o., law firm Křižovnické náměstí 193/2, Prague, 110 00 Czechia e-mail: kindlj@prf.cuni.cz, jiri.kindl@skils.cz Abstract The so-called ‘Sharing Economy’ brought about some new challenges to the application of competition/antitrust law to the entities participating in it. Uber and the so-called uberization of economy are mentioned as prime examples of the respective issues. Competition law struggled how to appropriately tackle some of the issues brought about by Uber’s new ‘business model’. In some jurisdictions Uber was challenged as a dominant company engaging in pricing abuses. In others its model was under scrutiny as a device coordinating price fixing among Uber drivers, i.e., as some sort of ‘hub-and-spoke’ collusive conspiracy. It has been also argued that rather than a horizontal collusion facilitating device, it could a prohibited vertical price fixing scheme (resale price maintenance) when Uber requires its drivers to follow fixed prices set by an Uber algorithm. In this connection, one of the key issues dealt with was the position of Uber drivers within the Uber eco-system. Are they employees of Uber even if not treated by Uber as such? In case they are employees forming dependent inherent parts of Uber economic unit, then they cannot be treated as independent economic units (undertakings) and, hence, the relations between Uber and its drivers would be outside the scrutiny of competition law. Competition law could look just at the effects caused by Uber’s model outside the Uber eco-system. On the contrary, if they are not employees but independent contractors, what is their antitrust law treatment? Can they be considered genuine commercial agents forming just auxiliary organs of ‘Uber body’ in which case they would again largely fall out of competition law purview or are they truly independent undertakings engaged in horizontal collusion or (vertical) resale price maintenance? I will argue that the ‘New Institutional Economics’ (NIE) insights concerning various forms of

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