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วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

other firms to keep the prices of the platform under control and, related, the power
the platform has obtained in the market. For the latter, Ezrachi and Stucke suggest that

to take into account the “users’ inability to process complex information, limited
switching patterns, usage of apps, and access to platforms.”
22
Of all examples given by Ezrachi and Stucke, an Uber-like pricing algorithm
has received the most attention, both in courts and in academic literature. Uber faced

a class-action lawsuit in the US for infringing Section 1 of the Sherman Act. Similarly,
23
Uber was investigated in India by the competition authorities. The Luxemburg
24
competition authority had to decide on Webtaxi, a booking platform for taxis in
Luxemburg. There is an indication that the US courts are favorable to accepting
25
a price fixing scheme, what can be deducted from the finding that drivers were signing

up because the algorithm was providing the same price for all drivers and, if the drivers
were really independent, the same price would be against their interest. The Luxemburg
26
competition authority sided with price fixing but argued that it could be set aside by

efficiency gains. Julian Nowag, acknowledging case outcomes in the US and
27
Luxemburg, purports that the conceptualization of the EU law provides more flexibility
to embrace new technological evolutions than the US law. The Luxemburg outcome,
28
which is also possible in the EU under Article 101(3) of the Treaty of the Functioning
of the European Union (TFEU), would be the preferred approach. This approach offers

indeed a mechanism to challenge the traditional competition law perspective on price

22 Ezrachi and Stucke (2016), p. 55.
23 Meyer v. Kalanick, 174 F. Supp. 3d 817 (S.D.N.Y. 2016); Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d
Cir. 2017). For a discussion, see Bostoen (2019), pp. 159-160.
24 For a detailed discussion, see Koradia, Manokaran, Saeed (2021).
25 Conseil de la Concurrence Grand-Duché de Luxembourg, Case 2018-FO-01, Webtaxi, 7 June 2018.
Available at: https://concurrence.public.lu/content/dam/concurrence/fr/decisions/ententes/2018/decision-n-2018-
fo-01-du-7-juin-2018-version-non-confidentielle.pdf. Accessed 15 December 2020. For a discussion, see Giannino
(2018).
26 Meyer v. Kalanick, 174 F. Supp. 3d 817 (S.D.N.Y. 2016); Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d
Cir. 2017). The case was eventually dealt with in arbitration. Bostoen (2019), p. 160.
27 Conseil de law Concurrence Grand-Duche de Luxembourg, Case 2018-FO-01, Webtaxi, 7 June 2018.
28 Nowag (2018), p. 19. On the inflexible approach in the US, see Anderson and Huffman (2017), pp.
907-915.

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