EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

Given that, the author argues, the established concepts need to be rethought and updated (ibid.). Also, the author points to the traditional dichotomy of “organization as an entity” and “organizing as a process” which becomes blurred when peer-to-peer digital platforms come to play (ibid., pp. 25–26). 4. Antitrust Treatment of Sharing Economy Actors Through NIE Lens As it was described above, the attempts to assess Uber’s business model or rather its operating model (for a distinction between business and operating models, see Iansiti, Lakhani 2020, pp. 27–32) from the competition law perspective were based on trying to fit Uber (and actors within its platform) into established categories, esp. into the contours of the ‘single economic unit’ doctrine. Hence, it was e.g., argued that from the antitrust perspective it would be better for Uber if its partner drivers were treated as employees rather than contractors (Nowag 2015). The related antitrust treatment seemed to have been premised on the so set dichotomy of Uber drivers being employees (or potentially genuine agents) in which case the price setting by Uber would be outside of competition law’s purview or they were not so classified in which case the respective arrangements between Uber and its drivers would be contrary to antitrust law either as a hub and-spoke cartel or vertical price fixing (RPM). The single economic doctrine corresponds to the hierarchical mode of governance as discussed in NIE (Lianos 2007, pp. 655–658). But the fact that Uber’s operating model cannot always fit under the previously established categories, including e.g., the categories of labour law relationships or commercial agency arrangements, does not mean that its arrangements with the partner drivers shall be automatically treated as those being on the opposite pole of the ‘hierarchy-market’ spectrum, i.e. as a collusive agreement organized by Uber. The above discussion of NIE’s insights was meant to show that the attempts to fit Uber’s business/operating model just into the dichotomy of ‘hierarchy’ and ‘market’ modes of governance may not be appropriate. Another approach, which uses those insights, should be preferred. That approach follows from the previous arguments that NIE can significantly contribute to better understanding of various antitrust law concepts. For example, Lianos (2007) applied that to various vertical arrangements but also concluded that: [T]he new-institutional economics approach should not be limited to “vertical restraints,” but may also extend to the assessment by competition law of the restrictive effect of clauses included in horizontal cooperation agreements that are not by their nature anticompetitive and that require the setting of hybrid forms of cooperation, such as alliances or joint ventures. (Lianos 2007, p. 672).

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