EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Similarly, such an approach should be extended to the assessment of arrangements within the Sharing Economy, including the case of Uber. How would such an approach look like? In my view, such an approach should be carefully aware of what is the appropriate ‘unit of analysis’, in the sense of an entity to which the assessment would relate and should employ an appropriate ‘counterfactual analysis’ to assess effects of the respective arrangements when needed (Kindl, Dufková 2021). Business and operating models of Sharing Economy platforms differ. They also differ from other platforms in the so-called multisided platform economy. These differences need to be properly taken into account as they may impact on the relevant antitrust law treatment (Caffarra 2019, Jacobides, Lianos 2021, Schrepel 2021a). If we take the case of Uber, there need not be the only way to put the arrangements between the drivers and Uber outside of competition law’s reach by classifying Uber drivers as its employees (or potentially agents), one can look at Uber’s business and operating models, including the related governance systems and transactions that take place within its eco-system, and could find out that those arrangements truly lead to a functional institutional alternative to the hierarchical governance (Reimers, Guo, Li 2019) which should be treated similarly from the regulatory (antitrust) perspective even when drivers would otherwise be considered ‘independent contractors’. Such assessment should be jurisdiction specific as there can be appreciable differences based on different institutional settings in the affected jurisdictions (Davies, Sinha 2021). If Uber (or similarly functioning other applications, e.g., called online service delivery platforms; Reimers, Guo, Li 2019) is treated in that way, one could extend the scope of application of the ‘single economic entity’ doctrine beyond the boundaries of the ‘firm’ in the traditional sense and concentrate on the ‘Uber eco-system’ as such as the relevant ‘unit of analysis’ (being an entity to which the antitrust assessment would relate to; not necessarily the unit of analysis in the organizational sense; cf. Williamson 1996, p. 249). Accordingly, the effects of the Uber pricing mechanisms would be assessed from the ‘external’ point of view, i.e., from the perspective of what are its effects to other market participants outside Uber eco-system. That could lead to assessing whether the resulting prices are or are not predatory or excessive or discriminatory etc. and how they impact on other market players. But one would not condemn such a mechanism as a (hub-and-spoke) cartel or RPM as the related arrangements between Uber and its drivers occur inside the eco-system. The need to step out of the traditional theory of firm in the antitrust context need not apply just to Sharing Economy. It has been, e.g., also argued that such a theory is not ‘fit for purpose’ in respect of blockchain where one would need to apply antitrust to a differently defined ‘unit of analysis’ / entity (Schrepel 2021b, esp. chs 6 and 7, and his theory of granularity). Here, the idea is similar.

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