EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

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’, or some development thereof, and which necessitates 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 facts specific and 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. The structure of this paper shall be as follows. At the outset, I will briefly explain what I consider the ‘Sharing Economy’ and point to various competition law issues that have been discussed in connection with the antitrust treatment of ‘Sharing Economy’ actors and their conduct. In this respect, I will concentrate on Uber as the prime example of the ‘Sharing Economy’. Second, I will describe NIE’s insights concerning firms and other modes of business governance with an emphasis on the role the so-called networks or hybrids among them and will also touch upon how those insights have been and could have been used in the application of competition law. Third, I will apply those insights onto Uber and the antitrust treatment of its business model and will show that it may be wrong to try to fit that business model just into the dichotomy of ‘hierarchy’ and ‘market’ modes of governance, esp. if that dichotomy would not reflect different technology-based modes of governance within the Sharing Economy, and that another approach, which is carefully aware of what is the appropriate ‘unit of analysis’ and which employs an appropriate ‘counterfactual analysis’, is to be the preferred one. Lastly, I will conclude. 2.1 General Overview The phenomenon of the ‘Sharing Economy’ (sometimes called also “Collaborative economy”) has been described in many papers both in academia (e.g., King 2015, p. 729, Dunne 2018, pp. 91-92, Anderson, Huffman 2017, pp. 864–873, Bostoen, 2019, pp. 1–4, or Lougher, Kalmanowicz 2016, pp. 88–91) and in documents issued by competition agencies such as Federal Trade Commission (FTC) (FTC 2016) or the European Commission (EC) (EC 2016a, 2016b). I take that most of the readers have a very good general grasp of what it is when we deal with the 2. Sharing Economy and Competition Law

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