EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

However, even if the Uber eco-system (or other Sharing Economy platforms) would not be treated as an institutional alternative to ‘hierarchic governance’, it should still not be considered to belong to the ‘market’ pole of the respective organizational forms continuum. As explained above, the differences in its business and operating models fit it neatly into the zone of hybrid forms of governance on the ‘market-hybrid-hierarchy’ continuum. Accordingly, even in such a scenario, the peculiarities of that model shall be taken into account. Similarly as, for instance, restraints in franchising (esp. the ones that are necessary to secure common identity and reputation of the franchising chain) are treated more leniently than in most of other vertical arrangements (Lianos 2007, pp. 658–664, Kindl et al. 2021, pp. 299– 302), it could be well argued that some restraints within the Uber eco-system (such as uniform pricing via the Uber algorithm) would be treated as not anticompetitive if they would be reasonably necessary to bring about the benefits associated with Uber’s coming on the market and disrupting traditional taxi business to the benefit of consumers. Accordingly, those arrangements should be assessed in the ‘by effects’ analysis and shall not be treated as ‘by object’ restrictions even though they relate to pricing. Such a treatment would not be uncommon in the EU context, if one look, e.g., at Groupement des cartes bancaires (C-67/13 P) or Budapest Bank (C 228/18) cases decided by CJEU where seemingly ‘by object’ restrictions were held to need ‘by effects’ analysis. That could also be similar to the ‘rule of reason’ analysis indicated by Anderson, Huffman (2017) in the US context. The foregoing approach would require an appropriate counterfactual analysis to be made (Kindl, Dufková 2021) in which the competition authority shall be appropriately deferential to business choices of the respective actors and shall not ‘second-guess’ their business models without sufficiently compelling reasons based on cogent evidence. In respect of Uber, competition authorities would, for instance, need to well distinguish between various kinds of drivers and take into account that the Uber app allows for multi-homing by drivers. Uber Spain judgment and the related opinion of Advocate General pointed out that Uber allowed drivers to ‘offer their services’ who would never do so otherwise. In such a case, the counterfactual analysis would lead to an outcome that Uber actually brought new competition where it was none before. Hence, the fact that such a competition might be limited by the contours of the Uber’s pricing mechanism shall not be considered anticompetitive. To the extent one would concentrate on ‘professional drivers’ (e.g., professional cab drivers who also drive as ‘traditional taxis’) using Uber app, one would need to ask (and model counterfactuals) whether they are genuinely limited in their price competition to the detriment of consumer welfare when they can choose various ways of how to offer their transport services to customers (be it via Uber, via Lyft or other applications, via traditional taxi dispatching services or through taxi stands and the like all in

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