EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

reference to CJEU’s judgment in Binon case (243/83, para. 44), that case-law on RPM is indifferent towards the position of the parties to the vertical price fixing agreement and, hence, that RPM (Article 101(1) TFEU by-object infringement) can occur without the resale, strictly speaking (Bekisz 2021, p. 232, Dunne 2018, p. 103). A reliance on Binon case in this respect, however, seems to be overstretched as that case actually involved a classic supplier-distributor/reseller relationship. 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 as untenable for the lack of resale and for the lack of fixing ‘floor prices’ via Uber’s algorithm (Decision 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. 17). 2.2.3 Uber’s Unilateral Anticompetitive Conduct Allegations Other allegations of potential anticompetitive conduct rest on the assumption that Uber is acting unilaterally when setting the prices and could represent a competition law problem only if Uber was found to having been dominant or was attempting tomonopolize the market. Allegations could relate to exclusionary abuses, esp. predatory pricing, to price discrimination or to excessive pricing, esp. in connection with Uber’s surge pricing mechanism (OECD 2018, pp. 25–29, Passaro 2018, Denis 2021, Bostoen 2019, pp. 17-19). 3.1 General Overview New Institutional Economics “is not an integrated theory based on a set of common hypotheses, but, rather, a combination of bricks coming from different traditions” (Brousseau, Glachant 2008b, p. xxxix). And, yet, there are some unifying themes, including that NIE focuses largely on analysis of mechanisms of governance and coordination in various social arrangements, including in the business area (Williamson 2000). As of its beginnings set famously by Ronald H. Coase in his 1937 Article on “The Nature of the Firm” (Coase 1988), it dealt with analysing ‘make-or-buy’ decisions (Gonzáles-Díaz, Vázquez 2008) and defining ‘firm’s boundaries’ and assessing why actors on the market choose to prefer to vertically integrate rather than to negotiate a market exchange on the spot market. There are now multiple books containing various strands of NIE and its insights on those various aspects of the so analysed institutions (for a general overview, see, e.g., Ménard, Shirley 2008 or Brousseau, Glachant 2008a). Concerning (industrial) organization structures, NIE came from a fundamental distinction between ‘hierarchies’, on the one side, and ‘markets’ on the other (Williamson 1975, 1996). These two modes of governance, however, are not 3. New Institutional Economics Insights

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