EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

parallel and with different pricing choices). In other words, Uber could be viewed as another distribution/pricing option served to those drivers on top of the other ones they have. The assessment of effects of Uber business/operating model shall be, hence, facts specific and well nuanced and should take into account, inter alia , what market power Uber has and what other choices are there both for drivers and riders (Ezrachi, Stucke 2016, p. 55).

5. Conclusion It has been well put that:

[P]latforms are set in a much blurrier landscape [than managerial firms], where workers act as independent contractors, with unclear boundaries between market and hierarchy, between the professional and domestic spheres, where work situations vary greatly in terms of autonomy or economic dependency, and where behavior is controlled and governed by algorithms rather than formal rules, authority, or hierarchy. In such a context, determining what/who is inside or outside the organization is difficult, as is deciding where platforms’ responsibilities start and end in relation to those individuals using them. (Acquirer 2018, p. 22; fn omitted). When competition law faces such ‘much blurrier landscape’ it should not try to solve the issues by trying to put a square peg (Sharing Economy actors) into a round hole of traditional competition law concepts without properly taking into account the differences in modes of governance and related pros and cons the respective Sharing Economy platform (such as Uber) brings from the perspective of consumer welfare. NIE’s insights concerning various forms of economic organization are helpful in finding the right antitrust treatment as shown above. Uber’s business model (and other sharing economy actors’ models) lies most likely in between ‘hierarchy’ and ‘market’ modes of economic organization in the zone which is labelled as ‘hybrids’ or ‘networks’, or their proper assessment necessitates some extension even of current NIE’s concepts. The antitrust treatment needs to be more refined even though that could present new challenges to competition policies (Ménard 2021, p. 13). That treatment should appropriately take into account specifics of the Uber business model, incl. its innovativeness, and should concentrate on the effects of Uber (and other sharing economy actors) practices through appropriate ‘counterfactual analysis’ focusing on what pros and cons it brought about from the consumer welfare perspective. Such analysis should properly take into account different characteristics of participants in the Sharing Economy (e.g., different types of Uber drivers). Such analysis shall also be appropriately deferential to the choice of ‘business models’ by private economy actors especially

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