EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

of Competition Commission of India of 6 November 2018, Case No. 37 of 2018, In Re: Samir Agrawal and ANI Technologies, Uber et al ., para. 15). 2.2.2 Vertical RPM Allegation An alternative view regarding the competition law assessment of the Uber’s pricing model was such that instead of being a horizontal conspiracy among the drives orchestrated by Uber, there is a series of vertical arrangements between Uber and its drivers whereby Uber fixes the prices for which drivers can offer their (transport) services. Accordingly, it was argued that such an arrangement could represent a vertical RPM restriction which is also treated as a ‘by-object’ restriction under the EU competition law, also subject to potential Article 101(3) TFEU assessment (Bekisz 2021, pp. 232-233, Dunne 2018, p. 103, Nowag 2018, pp. 394–398, Bostoen 2019, pp. 14). This view also depends on the assessment of the position of drivers within the Uber ecosystem as, similarly as in the context of horizontal conspiracy allegation, there cannot be a vertical agreement within the boundaries of a single economic entity. Accordingly, should drivers be considered employees of Uber or its (genuine) agents, there would be no RPM. The views on whether Uber drivers are Uber’s employees widely differ and there are also diverging court opinions on that (Bekisz 2021, pp. 227–228, Nowag 2018, pp. 388–391, Tomassetti 2016). Concerning drivers being treated as agents of Uber (the principal), the prevailing opinion seem to be that the strict requirements following from EU Court of Justice (CJEU)’s case-law are not met (Bekisz 2021, pp. 228–229, Bostoen 2019, pp. 11–12). From a different perspective, it was also discussed whether Uber should not be treated as an agent for the drivers, views on that also differ ( cf. Bekisz 2021, p. 229 and Akman 2019). Such a position of Uber would exclude finding of a vertical agreement between Uber and the drivers but would not insulate Uber from the allegation of a hub-and-spoke conspiracy (Nowag 2018, pp. 397–401). It has been also discussed in this connection that one can hardly have resale price maintenance when there is no resale as Uber does not sell goods/services to drivers that would then be resold by them ((Nowag 2018, pp. 395-396, Anderson, Huffman 2017, pp. 902–904) but “merely provides a matching service that helps drivers and riders find one another” (Anderson, Huffman 2017, p. 904). In other words, Uber either sets the price for the service provided for by the drivers themselves and collects fees for intermediation (if drivers were considered to be the service providers and Uber only the matchmaker) or Uber sets the price of its own transport service (if Uber were considered to be a transport service provider itself as it seems to be suggested, e.g., in the CJEU’s judgement in Uber Spain case, C-434/15). In neither of these situations, there is any resale and, hence, no RPM. It was, on the other hand, mentioned in this connection, with the

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