EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

economic organization are helpful in finding the right antitrust treatment of the actors engaged in the ‘Sharing Economy’ such as Uber and its drivers. The current attempts addressing the above issues seem to be based on a simplified ‘binary’ view trying to classify Uber drivers either as employees or agents, i.e., dependent parts of Uber (outside of e.g., Article 101 TFEU purview) or as separate undertakings (in which case the model would be contrary to Article 101 TFEU). In NIE’s terms, that can be considered as an attempt to view the Uber business model just either as the ‘hierarchy’ (based on traditional concepts of employment or agency) or as the ‘market’ modes of economic organization. But a more elaborate view seems to be more appropriate. One possibility would be to step out from the traditional concepts of employment/agency and consider the different technology-based modes of governance within the Uber eco-system as a ‘hierarchy’ without the need to classify Uber drivers as employees or agents. Another view would be to consider Uber business model (and other sharing economy actors’ models) to be in between ‘hierarchy’ and ‘market’ modes of economic organization in the zone which is labelled as ‘hybrids’ or ‘networks’ and which necessitates a more refined antitrust treatment. Such a treatment should appropriately take into account specifics of the Uber business model, incl. its innovativeness, and would concentrate on the effects of Uber (and other sharing economy actors) practices through appropriate ‘counterfactual analysis’ focusing on what pros and cons it brought about from the consumer welfare perspective. Such analysis shall be appropriately deferential to the choice of ‘business models’ by private economy actors especially in innovative industries and should not second-guess their commercial choices unless they bring clear harms to consumer welfare. Keywords: counterfactual analysis, networks, new institutional economics, sharing economy, Uber JEL Classification: K210 1. Introduction The so-called ‘Sharing Economy’ brought about some new challenges to the application of competition/antitrust law to the entities participating in it (e.g., King 2015, Dunne 2018, Bostoen, 2019 or Lougher, Kalmanowicz 2016). Uber and the so-called uberization of economy are often 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 (be it predatory pricing, price gouging or price discrimination) (Passaro 2018, Denis 2021 or OECD 2018, pp. 25–29). In others, its model was under scrutiny as a device coordinating price fixing among Uber drivers, i.e., as some

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