EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

(esp. Nowag 2016, 2018, Kupčík 2016, Dunne 2018, pp. 98–103, Bekisz 2021, pp. 225–232, Bostoen 2019, pp. 9–17) or more generally (not in a jurisdiction specific way) (Ezrachi, Stucke 2016, pp. 50–55). In the EU context, the leading question was whether drivers constitute parts of the single economic entity (a single undertaking) with Uber (either as employees or as agents) or not. In case they would be considered to form a single economic entity with Uber, then no cartel would be present as no conspiracy (an agreement within the meaning of Article 101(1) TFEU) can occur within the single undertaking (Bekisz 2021, pp. 227–229, Bostoen 2019, pp. 9–12). On the other hand, if they are separate independent contractors, a horizontal conspiracy could occur. The answers to this question were different ( cf. , e.g., Nowag 2016, 2018, Kupčík 2016, Bekisz 2021, Dunne 2018, pp. 98–103, Bostoen 2019, pp. 9–17, Cifuentes 2016). All, however, dealt with the underlying dichotomy of (i) being a single undertaking and, hence, outside Article 101(1) TFEU or (ii) not being a single undertaking and, hence, likely being an Article 101(1) TFEU infringement subject to potential Article 101(3) TFEU assessment. A more nuanced approach, however in the somewhat different US context, was proposed by Anderson, Huffman (2017) who advocated for a ‘rule of reason’ approach with the level of complexity being dependant on the assessment of the level coordination, on the one hand, and the level of risk sharing among the participants to the platform, on the other hand (Anderson, Huffman 2017, pp. 917–931). Similarly, complexities of the related assessment were also discussed in Ezrachi, Stucke (2016) where the authors rightly pointed to non-trivial policy choices and enforcement challenges associated with such an assessment (pp. 50–55). The same allegation was also dealt with in front of the Competition Commission of India in the case of complaint of Samir Agrawal and was rejected in the following terms: “Such pricing does not appear to be similar to the ‘hub and spoke’ arrangement as understood in the traditional competition parlance. A hub and spoke arrangement generally require the spokes to use a third party platform (hub) for exchange of sensitive information, including information on prices which can facilitate price fixing. For a cartel to operate as a hub and spoke, there needs to be a conspiracy to fix prices, which requires existence of collusion in the first place. In the present case, the drivers may have acceded to the algorithmically determined prices by the platform (Ola/Uber), this cannot be said to be amounting to collusion between the drivers. In the case of ride-sourcing and ride-sharing services, a hub and-spoke cartel would require an agreement between all drivers to set prices through the platform, or an agreement for the platform to coordinate prices between them. There does not appear to be any such agreement between drivers inter-se to delegate this pricing power to the platform/Cab Aggregators.” (Decision

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