EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

sort of ‘hub-and-spoke’ collusive conspiracy ( Meyer v. Kalanick , 174 F. Supp. 3d 817, Decision of Competition Commission of India of 6 November 2018, Case No. 37 of 2018, In Re: Samir Agrawal and ANI Technologies, Uber et al ., or Kupčík 2016, Nowag. 2016, 2018, Bekisz 2021). It has been also argued that rather than a horizontal collusion facilitating device, it could be a prohibited vertical price fixing scheme (resale price maintenance) when Uber requires its drivers to follow fixed prices set by an Uber algorithm (Decision of Competition Commission of India of 6 November 2018, Case No. 37 of 2018, In Re: Samir Agrawal and ANI Technologies, Uber et al ., or Bekisz 2021). 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 just look 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 (RPM)? From a different perspective, could Uber be viewed rather as an agent for its partner drivers intermediating the possibility to conclude transport contracts (rides) with riders? And what would that mean for the application of competition laws? I will argue that the ‘New Institutional Economics’ (NIE) insights concerning various forms of economic organization, as developed primarily by Oliver E. Williamson and works stemming from that (Williamson 1975, 1985, 1996, 2000 and Ménard, Shirley 2008 or Brousseau, Glachant 2008a), 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 of the Treaty of Functioning of the European Union (TFEU) purview, or as separate undertakings, in which case the model would be likely contrary to Article 101 TFEU. In NIE’s terms, that can be considered as an attempt to view the Uber business model either just 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

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