EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

2.2 The Case of Uber Uber was discussed as a prime example of the ‘Sharing Economy’ actor and as the showcase eliciting the respective competition law issues. Uber’s business model is well-known and has been described extensively (e.g., Nowag 2016, Anderson, Huffman 2017, pp. 875–878, Bekisz 2021, pp. 223–224, OECD 2018 or the Court of Justice’s judgment and related opinion of AG Szpunar in the so called ‘Uber Spain’ case, C-434/15). The gist of the model (the core business) is that Uber connects drivers and riders (customers) via its Uber application which so allows to find a driver nearby the rider who is willing to transport the rider where needed for a price set by Uber’s algorithm. In comparison with some other sharing economy companies (e.g., Airbnb), Uber sets quite detailed rules regarding qualifications of the drivers, their cars and quality of service and, in particular, sets the price (via algorithm) instead of the drivers themselves. The riders and drivers evaluate each other after the ride via a star evaluation system. Uber also arranges for some ancillary services (e.g., UberEats or UberHealth) via its platform (Iansanti, Lakhani 2020, pp. 146–151). There are other similar ride-sharing (or ride-sourcing) companies like Uber around the globe. The well-known examples include, e.g., Lyft in the US, Bolt (formerly Taxify) in Europe or DiDi Chuxing or Grab in Asia. The allegations regarding Uber’s conduct in various jurisdictions related particularly to the fact that Uber sets the prices of rides via its algorithm. There were especially three categories of potential anticompetitive conduct allegations discussed in this connection. Those are: (i) horizontal (hub-and-spoke) conspiracy allegation, (ii) vertical RPM allegation and (iii) various allegations of Uber’s unilateral anticompetitive conduct allegations. I will deal with these briefly in turn. One can also point out that there may be other competition law issues associated with Uber (or ride-sharing) business in the ‘merger assessment’ area, incl. the increasing concentration caused by acquisitions or joint ventures among ride-sharing businesses, and issues relating to the horizontal shareholdings which occur as a result of those transactions (Bostoen 2019, pp. 19–24). Those issues are, however, out of scope of this paper. 2.2.1Horizontal (Hub-and-Spoke) Conspiracy Allegation It was argued that Uber and its drivers are separate undertakings for the purposes of EU competition rules and, hence, by setting a uniform price mechanism for all its drivers Uber, acting as a common agent for all the drivers, actually orchestrates a horizontal hub-and-spoke cartel among the drivers. This was the allegation that was dealt with and preliminarily sustained (in the decision rejecting the motion to dismiss) in the US Meyer v. Kalanick case ( Meyer v. Kalanick , 174 F. Supp. 3d 817) and discussed in related US literature (Anderson, Huffman 2017). This was also the line of argument discussed within the framework of EU competition law

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