Antitrust Courts Research Articles

How Long Is Too Long? Disentangling the Disposition of Antitrust Cases in the U.S. Federal Courts

The contribution of this study is to disclose the main determinants of the duration of the U.S. antitrust federal court decisions, an issue that has been nearly overlooked by most related studies. As an indirect measure for the time needed to dispose cases, this study uses the duration of the case from the filing of the complaint to the date of the opinion. Using this metric, we employ parametric and nonparametric panel data techniques on a sample of 613 appellate court proceedings on U.S. antitrust cases during the period 1995–2018. The empirical research reveals spatial heterogeneity in terms of case duration among the circuits of the appellate U.S. courts. The econometric analysis supports that the duration of appellate antitrust court decisions depends on administrative-related factors including the way the case was filed in the circuit, the jurisdiction in the case, the “ pro se” representation of the undertakings, and the nature of the final judgment. Lastly, based on the flexible semi-parametric analysis, we argue that the impact of these parameters on case duration is linear, regardless of the specification of the parametric part of the model.

Das Kartellgericht der Weimarer Republik: eine Institution zwischen Verwaltungsgericht, Zivilgericht und Verwaltungsbehörde und seine Bedeutung für den verwaltungsgerichtlichen Rechtsschutz

This article deals with the possibilities of obtaining administrative court legal protection at the imperial/national level during the Weimar Republic. Characteristic for this epoch of German administrative jurisdiction is the formation of numerous specialized administrative courts. As an example of this practice, the following article focuses on the Antitrust Court as a typical special administrative court of the Weimar period. However, it begins with the changes in administrative jurisdiction in general that resulted from the new Weimar Constitution, which gave administrative courts constitutional protection for the first time in German legal history. In addition, the paper outlines how this new constitutional framework was received by scholars and had an impact in practice. However, the proclamation of a German Republic after World War I, not only changed the constitution, but also meant that the administration was confronted with completely new challenges. How the German administration responded to this new situation is also briefly outlined in order to provide a better understanding of the importance and scope of the administrative courts' activities at the national level. The article focuses on the antitrust court and in particular on its competences and available remedies. These two parameters of court organization provide information on whether the Antitrust Court was actually an institution committed to legal protection or whether the effectiveness of the administration was the guiding idea that shaped the activity of the Antitrust Court.

Przekazanie sądowi powszechnemu sprawowania kontroli administracji publicznej jako odstępstwo od kognicji sądów administracyjnych na przykładzie Sądu Ochrony Konkurencji i Konsumentów

The goal of the article is to present the historical development of the exception from the rule of the court administration review by administrative courts, which is the transference of its conducting to the Antitrust Court (currently the Court of Competition and Consumer Protection). The additional goal is to answer the question of the grounds of the transference to a popular court the jurisdiction in antitrust cases, and then in regulatory cases. Two theses were formulated by the authors. The first thesis states that the Polish antitrust court model were based on the liberalization processes. The second thesis assumes that, despite faulty solutions in the procedural area, the functioning of the jurisdiction of the Court of Competition and Consumer Protection contributed to the development of competitive economy in Poland. The authors begin their consideration with the Act from 17th March 1921. The Constitution of the Republic of Poland (the so-called March Constitution) and the Act of 3rd August 1922 on the Supreme Administrative Tribunal. In addition, they analyze the liberalization processes that took place in Poland after the changes of 1989. The second part covers the genesis of the Competition and Consumer Protection Court, the evolution of the jurisdiction of the Antimonopoly Court from 1990 to 2017 and the analysis of the issue of hybrid appeal proceedings. In this part, the authors refer to draft laws, transcripts of the sittings of the Sejm of the Republic of Poland and analyze the statistics of the case law of the Court of Competition and Consumer Protection from 1992 to 2020. The deliberation shall be based on legal regulations and scientific papers. The analysis shall focus on the proposed bills and on the related legislative process. The following methods were applied in the article: dogmatic-legal and analytic-synthetic.

THE “ADVERSARIAL PROCEDURE OF INQUIRY” BEFORE THE ANTITRUST COURT

El presente trabajo trata sobre el procedimiento de consulta llevado a cabo ante el Tribunal de Defensa de la Libre Competencia chileno, que se prevé como un procedimiento no contencioso para conocer si determinados hechos, actos o contratos existentes o por celebrarse, pueden afectar la libre competencia. Sin embargo, como este tipo de procedimiento no sólo puede ser promovido a solicitud de quienes sean parte en dichos hechos, actos o contratos, sino que, además, por terceros con un interés legítimo en ellos, resulta cuestionable el carácter no contencioso frente a esta última hipótesis. Como se mostrará, es posible distinguir un “procedimiento contencioso de consulta” respecto del cual necesariamente se deben aplicar, y en toda su amplitud, las garantías del contradictorio que rigen en todo procedimiento contencioso.

A survey of cases of the pay-for-delay agreement in the post-Actavis era

What are the further developments on pay-for-delay agreements following Actavis, the case decided by the US Supreme Court regarding a pay-for-delay dispute in 2013? We surveyed 17 pay-to-delay deals involving brand-name drug owners and generic companies to see how their deals were structured in light of Actavis, as well as the results of follow-on court cases involving such contracts. As a result, we posit here that a no-Authorized Generic (AG) provision, the clause in a pay-for-delay agreement that asks the company making the brand-name drug not to launch its own generic drug in the market, occurred in almost half of the deals in our survey. More importantly, we found that the judges in cases following Actavis did not establish a framework to analyse whether pay-for-delay payments were large and unjustified. Therefore, the judges could not adequately explain why a given pay-for-delay agreement may have been anti-competitive under the rule-of-reason test under Actavis. Through these findings, we inferred that drug manufacturers should be able to avoid including no-AG provisions in their settlements. Finally, we predicted that antitrust agencies and courts would achieve a stronger interpretation of ‘large and unjustified payments’ if they unified the analytical framework for pay-for-delay agreements.

Economic Evidence in Antitrust: Defining Markets and Measuring Market Power

This paper addresses an important aspect of the interdisciplinary collaboration between law and economics: the use antitrust courts can and should make of empirical industrial organization economics, in light of the expansion of empirical knowledge generated during the last few decades. First we show how courts can apply what economists have learned about identification of alternative theories of industry structure and firm strategy to the problems of defining markets and determining whether market power has been exercised. We emphasize that the same analytic issues arise regardless of whether the evidence on these concepts is quantitative or qualitative. Second we show how courts can adopt a strategy employed in the research literature, by exploiting generalizations across closely related industries to help evaluate evidence and resolve cases. We also discuss ways of increasing the institutional capacity of the judicial system to make use of these two bodies of economic learning. These include a possible limited role for neutral economic experts in litigation, and a role for the antitrust enforcement agencies in identifying and codifying relevant generalizations about industries from the empirical economic literature to make that learning available to courts.

Bridging the Coasean Divide: The Need for a Shared Economic Lexicon for Antitrust & Worker Protection Law

Uber, the most prolific of a new breed of transportation network companies, has been the target of two distinct strands of litigation in recent years that get at a question at the heart of the company’s business model. On the one hand, drivers have sued Uber for intentionally misclassifying them as contractors to dodge employer obligations. On the other, consumers have taken Uber to court for fixing the prices of millions of independent competitors, in clear violation of antitrust law. Uber’s situation seems legally untenable; either drivers are independent businesspeople and Uber is running a massive price-fixing conspiracy, or drivers are employees and the company owes millions in worker benefits and payroll taxes. However, antitrust and labor law have both evolved over the last half-century to be far more permissive of innovative (some would say exploitative) business models. This leaves a regulatory void in which companies like Uber get all the benefits of a coordinated, top-down command structure without incurring either antitrust liability or employer obligations. This void poses a competition problem and a labor problem. Workers that have no real power to negotiate their rates or make market-based decisions are left without the protections of labor and employment law. This note argues for a common set of definitions across antitrust and labor law to close the regulatory gap. These definitions should be nuanced, and might include intermediate categories like “dependent contractors.” These definitions should be guided by evidence of genuine ability or inability to make market decisions, particularly whether workers can set their own prices. But most importantly, they should be uniformly recognized by labor and antitrust courts. This will allow for innovative companies like Uber to choose. They can relinquish economic decision-making to their workers and maintain their low-commitment technology company status, or have greater coordination rights vis-a-vis their workforce and accept the employer obligations that come with them.

,,,Anything You Can Do, I Can Do Better––Except in Big Tech?: Antitrust’s New Inhospitality Tradition

Today, the question of how competition is—or is not—functioning in the big tech space has become a particularly compelling topic. The last several years have seen an increasing popular interest in antitrust, and it appears that wave of interest may soon be cresting. Rhetoric has grown increasingly aggressive, and the list of alleged ills is long. Companies are simply too big, too influential, too powerful; they are destroying our democracy and undermining our social values. While allegations run the gambit, under particular attack are tech firms that operate in multiple, complementary markets. This critical rhetoric is eerily similar to that of a bygone era of antitrust enforcement—namely, the time when the inhospitality tradition prevailed. By the middle of the 20th century, antitrust courts routinely—often summarily—condemned any contract or behavior they deemed to be nonstandard or unusual. This approach reflected an extreme hostility to firm behavior—a hostility that seems to be making a resurgence today— and led to the coining of the phrase “inhospitality tradition” to describe the prevailing antitrust regime. The inhospitality tradition often led to incoherent, nonsensical outcomes. Courts condemned conduct that made firms better competitors in the name of preserving competition. And they ignored the actual or likely competitive effects of conduct before them because they found the form of that conduct offensive. The courts eventually abandoned this approach. As economic learning advanced and court experience grew, the negatives of condemning as per se unlawful large swaths of firm conduct on the basis of its form—rather than its effects—crystalized and could no longer be ignored. From this new economic learning, economists and scholars came to realize that many procompetitive reasons can, and often do, underlie much of the conduct that had been summarily condemned. And they learned that judging the conduct on its face, much like judging a book by its cover, tended to yield inferior outcomes. Part I of this Article delves into the history of the inhospitality tradition within antitrust law, tracing its rise and demise. Part II explicates the apparent resurgence of hostile sentiment, particularly as applied to the tech context. Part III then investigates whether there is evidence of a market failure in big tech. Part IV analyzes what may—or may not—be warranted given the current state of the empirical literature.

Less Restrictive Alternatives and the Ancillary Restraints Doctrine

In Ohio v. American Express, both the majority and dissent injected into Supreme Court jurisprudence a new test for evaluating restraints under the rule of reason: a less restrictive alternatives test. Occasionally appearing in circuit court cases, less restrictive alternatives tests have not been a part of Supreme Court’s approach to the rule of reason, which generally balances the procompetitive and anticompetitive effects of a restraint. No previous Supreme Court case has offered less restrictive alternatives as part of its formulation of the rule of reason. Nevertheless, by virtue of its adoption by the Ninth Circuit, a less restrictive alternatives test is now the subject of a pending Supreme Court case: Alston v. NCAA. Alston provides a rare opportunity for the Court to clarify the role that less restrictive alternatives should play in rule of reason analysis. Although it has not explicitly mentioned less restrictive alternatives prior to American Express, the Supreme Court has discussed alternatives in antitrust cases, and many find in those cases a less restrictive alternatives test as a distinct step within the rule of reason. Careful analysis of the cases shows that the Court does not use a less restrictive alternatives test within the rule of reason. Nor should it. The boundaries of the less restrictive alternatives inquiry are not just vague, they are indescribable, and the test is likely to draw antitrust courts into increasingly strict review of restraints. Lessons drawn from other areas of law show that any real approach to “less” restrictive alternatives is likely to lead to a “least” restrictive alternatives test. Rigorous consideration of alternatives will chill innovation, with outsized effects on particular industries and restraints, particularly in two-sided platform markets and more generally in recently highly scrutinized “big tech” markets. This paper considers the development of the less-restrictive means test in antitrust scholarship and commentary and consider how consideration of alternatives actually does, and should, inform antitrust analysis. The injection of less restrictive alternatives in rule of reason analysis reflects the need for increased attention to whether restraints are ancillary to productive transactions and highlights the need for a reinvigorated approach to the ancillary restraints doctrine.

Section 2 Mangled: FTC v Qualcomm on the Duty to Deal, Price Squeezes, and Exclusive Dealing

Abstract Judge Koh handed down a sweeping opinion in May 2019 condemning as antitrust violations many of Qualcomm’s licensing practices related to its patented chips and standard-essential technology used in mobile devices. The district court opinion significantly expands the scope of liability for refusals to deal and for non-predatory pricing, further eroding the longstanding symmetrical approach to antitrust enforcement regardless of the kind of property involved. We find three glaring errors in the district court opinion. First, the court expands the exception to the general rule permitting refusals to deal, as laid out in Aspen Skiing, well beyond the outer boundary of Section 2 by inappropriately inferring a prior course of dealing and erroneously finding a willingness to sacrifice profits. Secondly, the district court accepted a price squeeze theory—characterized by the FTC as a ‘tax’ on OEMs transacting with Qualcomm’s rivals—directly contrary to the Supreme Court’s holding in linkLine. Thirdly, the court erroneously concluded that Qualcomm’s exclusive dealing arrangements with Apple violate the Sherman Act, despite a glaring failure by the FTC to prove substantial foreclosure, contrary to modern antitrust precedent and economic theory. The district court’s inappropriate extension of antitrust liability in three separate areas of well-settled antitrust doctrine is remarkable and threatens to upend important precedent that has successfully guided business conduct for many years. Further, the remedy transforms the role of antitrust courts from adjudicators to central planners, a role for which the Trinko Court expressly stated they are ill suited. The decision invites plaintiffs to use the Sherman Act to reach conduct that has been generally shielded from antitrust liability. That invitation is ill advised and should be rejected by the Ninth Circuit, and if necessary, the Supreme Court.

Section 2 Mangled: FTC v. Qualcomm on the Duty to Deal, Price Squeezes, and Exclusive Dealing

Judge Koh handed down a sweeping opinion in May 2019 condemning as antitrust violations many of Qualcomm’s business practices related to the royalty rates it charged to license its SEPs. The district court opinion significantly expands the scope of liability for refusals to deal and for non-predatory pricing behavior, further eroding the longstanding symmetrical approach to antitrust enforcement regardless of the kind of property involved. We find three glaring errors in the district court opinion. First, the court expands the exception to the general rule permitting refusals to deal, as laid out in Aspen Skiing, well beyond the outer boundary of Section 2 by applying it to contracts negotiated by Qualcomm over 20 years ago and by inferring the company was willing to sacrifice profits even in the face of evidence that the change in dealing was implemented to increase short-term profits. Second, the district court accepted a price squeeze theory—characterized by the FTC as a “tax” on OEMs transacting with Qualcomm’s rivals—directly contrary to the Supreme Court’s holding in linkLine. Third, the court erroneously concluded that Qualcomm’s exclusive dealing arrangements with Apple violate the Sherman Act, despite a glaring failure by the FTC to prove substantial foreclosure, contrary to modern antitrust precedent and economic theory, both of which make crystal clear that proof of substantial foreclosure is necessary to showing an anticompetitive effect from exclusive dealing. The district court’s inappropriate extension of antitrust liability in three separate areas of well-settled antitrust doctrine is remarkable and threatens to upend important precedent that has successfully guided business conduct for years. Further, the remedy—aside from putting the nation’s security at risk and potentially undermining U.S. leadership in 5G technology and standard-setting—transforms the role of antitrust courts from adjudicators to central planners, a role for which the Trinko Court expressly stated they are ill suited. The decision invites plaintiffs to use the Sherman Act to reach conduct that has been generally shielded from antitrust liability. That invitation is ill advised and should be rejected by the Ninth Circuit, and if necessary, the Supreme Court.

Strengthening Antitrust Enforcement Within the Consumer Welfare Rubric

There is a chasm among the many who agree that antitrust law is underenforced. Some see the “consumer welfare” standard, which underpins contemporary antitrust, as so flawed that it should be abandoned. While I share their concerns about the market power problem, particularly in the digital platform markets, I believe that a complete shift in paradigm is neither necessary to reinvigorate antitrust enforcement, nor wise. A common critique of consumer welfare is that it supposedly focuses exclusively on consumers and on short-term price effects, ignoring non-consumers and nonprice effects. Other more “populist” critiques fault the standard for not addressing the social and political harms of market power. With respect to the first set of perceived limitations, I disagree that the standard is so limited and argue that it is capable of a broader reach if used to its full scope. Records of antitrust enforcement and court decisions show that it can take into account the harmful effects, caused by disruptions to competition, on non-consumer purchasers and even on sellers (including workers, who are sellers of labor). I argue that it is capable of reaching even harmful effects on competitors, despite the mantra that antitrust protects competition, not competitors. While antitrust enforcement has fallen short, I argue that it is due, not to legal deficiencies in the consumer welfare standard, but to other factors, including the inability of antitrust enforcers to fully keep up with the new markets, the difficulty of applying nonprice metrics in analysis, burdensome evidentiary standards, and the Court’s restrictive interpretation of a few important relevant antitrust doctrines. Finding practical solutions to these problems, which I believe is possible, should strengthen antitrust enforcement within the consumer welfare rubric, and would be less disruptive than abandoning a paradigm that is conceptually sound if not always applied well. The key to addressing the competitive challenges in today’s digital markets is not to change the consumer welfare paradigm but to make intelligent changes within it. With respect to the charge that consumer welfare does not address a panoply of social and political ills associated with concentration and the digital platforms, I agree that is true. However, I argue that antitrust law cannot be burdened with performing tasks for which it was not designed, and that doing so risks unintended and undesirable consequences. The more effective approach to tackling the serious but non-competition related problems of political power, economic inequality, privacy intrusions, data security breaches, “fake news,” and so forth is to do so directly, using other existing or new laws designed specifically for those purposes.

Governing the Patent Commons

Thousands of patents underpin the technologies that power the digital economy. Coordination among firms developing and implementing these novel technologies has notably been facilitated in large part by Standards Developing Organizations (SDOs). Despite the evident benefits of standardization in general and SDOs in particular, certain aspects of these processes have come under severe scrutiny from scholars, antitrust authorities and courts. These critics argue that the standardization space suffers from two crippling market failures, namely “patent holdup” and “royalty stacking”. They thus conclude that opportunistic firms will squeeze their rivals’ profits, harming consumers and stifling innovation in the process. However, recent empirical scholarship strongly suggests that patent holdup and royalty stacking rarely, if ever, occur in the standardization space. Against this checkered backdrop, our paper argues that standardization is an emergent phenomenon, where parties have strong incentives to design institutions and contractual relationships that mitigate the scope for opportunistic behavior (including patent holdup and royalty stacking). The paper explores how these incentives have likely enabled firms to avoid severe market failures. We argue that ignoring these complex market dynamics may cause antitrust authorities and courts to do more harm than good (notably by exacerbating patent holdout behavior). The paper then reviews recent regulatory interventions and questions whether this has indeed been the case. Finally, we suggest that antitrust authorities and courts should draw inspiration from acclaimed scholarship regarding both the evolution of cooperation and the management of common-pool resources.

¿TÉCNICOS O POLÍTICOS?: RADIOGRAFÍA DEL SISTEMA DE NOMBRAMIENTO DE DIRECTIVOS EN AGENCIAS REGULATORIAS INDEPENDIENTES

This paper analyzes the Chilean experience regarding process of appointing heads of independent regulatory agencies (IRA) using a database that gathers information of several appointments in different regulatory agencies. The data shows that standards of formal independence are rather low. The processes of selection led by the Supreme Court, the Antitrust Court or Central Bank show better results, so seems reasonable to continue with the incorporation of multi-member panels and transparency.

The Tragedy of the Successful Firm

Twenty years after the emergence of platform literature antitrust courts and authorities still face formidable challenges in deciphering platform business models. The latest two Google cases (Google Search, Google Android) highlight the schism between what firms consider an innovative business plan and what the law is ready to accept. Noting the schism, this article focuses on a number of points that European competition law needs to address to better reconcile business practice with antitrust legal analysis with the view to enable successful firms to operate without fear of punitive enforcement.

Institutional Advantage in Competition and Innovation Policy

In the United States responsibility for innovation policy and competition policy are assigned to different agencies with different authority. The principal institutional enforcers of patent policy are the United States Patent and Trademark Office (USPTO), the International Trade Commission (ITC), and the federal district courts as overseen by the United States Court of Appeals for the Federal Circuit, and ultimately the Supreme Court. While competition policy is not an explicit part of patent policy, competition issues arise frequently, even when they are not seen as such. Since early in the twentieth century antitrust courts have had to confront practices that implicate patent law. Over the next century patent/antitrust policy veered between extremes, from periods characterized by heavy deference to patent practices, even where they seemed obviously anticompetitive, to periods in which the courts viewed patents as little more than a nuisance and used every opportunity to apply the antitrust laws against them. This brief essay addresses the question of relative institutional advantage in cases where both competitive harm and harm to innovation are relevant but patent and antitrust approaches differ widely and are likely to reach different conclusions.

Why SEPs have been involved in Antitrust Cases – From A Chinese Scholar’s Perspective

Abstract If patents have been included in a technical standard and thus have become standard essential patents (SEPs), the SEP holders normally have to commit to the Standard Setting Organization (SSO) to license their SEPs on fair, reasonable and non-discriminatory (FRAND) terms. Although the FRAND commitments already put constraints on the patentees, more and more disputes over FRAND licensing fees involving SEPs are reaching antitrust enforcement agencies and courts, perhaps due to the fact that the FRAND commitments are often not workable. As demonstrated in the case Huawei v. IDC in Chinese courts, SEPs have special characteristics compared to non-SEPs, i.e. the licensing of SEPs relates more to the public interest, the holders of the SEPs may be thought to have dominant positions in the licensing market of their SEPs, the holder of the SEPs often have made commitments to license on the FRAND terms, and the holder of the SEPs should be allowed to use the injunctive relief only in limited circumstances. This article also proposes that Article 55 of the Chinese Antimonopoly Law (AML) should be reconsidered because it exempts the undertakings who exercise their IPRs in accordance with the laws and administrative regulations on IPRs from the application of the AML. However, as this article shows, the excessive royalty requested or the injunction sought by the holder of SEPs may not violate the patent law, but nonetheless may violate the antitrust law.

The Role of Network Effects in Analyzing Market Access on High-Technology Platforms

The present study analyzes how can positive network externalities in the form of network effects exert significant influence over the characterization of ‘market access’ in the context of high-technology markets. Throughout the last two decades there has been a vast body of literature dedicated to instilling the notion of a distinct economic sector denominated as ‘high-technology markets’ for the purposes of clamoring for a unique and clustered antitrust enforcement. To that regard, some commentators have argued that courts generally exhibit a limited understanding of the ultimate economic effects of high technologies, generating the risk of halting innovation through inconsistent enforcement. In this context, the Supreme Court decision on Verizon Communications v. Law Offices of Curtis V. Trinko, LL.P. (2004), questioned the institutional capacity of courts in enforcing decisions implementing a ‘duty-to-deal’ on high-technology markets. To that regard, the present work contends that the understanding of ‘central planning’ flowing from the reasoning of the Supreme Court in Trinko is one of technical valuation, and should not preclude antitrust courts from effectively using their capabilities in constructively analyzing and programmatically enforcing Section 2 of the Sherman Act, and particularly in cases involving of high-technology markets. Moreover, a modified analysis for the characterization of essential facilities and the corresponding determination of liability under Section 2 of the Sherman Act through the incorporation of basic notions that derive from classic network theory. It construes upon the liability test set forth in MCI Communications v. AT&T Corp., to incorporate an access-based approach in connection to the structural conditions present in the market.

A Unifying Analytical Framework for Loyalty Rebates

This article asserts and operationalizes the principle that demand contestability determines the competitive effects of loyalty rebates. We urge antitrust courts and enforcers to recognize the construction of a loyalty rebate contract as an act with competitive consequences. These consequences turn on the interaction of three important features of the contract: the discount, the threshold, and the contestable share, all of which are chosen by the incumbent firm. Our analysis shows that the impact on competition is unlikely to be found by applying existing marginal cost rubrics.In place of the fractured analogical reasoning that characterizes American discounting doctrine today, we simplify by using the characteristics of a loyalty rebate contract to calculate one metric - the penalty imposed on the entrant by the rebate contract. Specifically, we measure how much the entrant must lower price on its own units – the burden it faces – in order to fully counteract the financial incentives the rebate contract creates for customers. This “effective entrant burden” measures the extent to which the dominant firm leverages its non-contestable assets into anti-competitive exclusion. The size of this penalty, we assert, makes sense of the divergent holdings of courts confronted with loyalty rebate disputes.

The UBER-Cartel? UBER between Labour and Competition Law

UBER is often described as disruptive innovator. This paper examines whether the UBER model disrupts the classical competition analysis thereby creating the uber-cartel, a cartel to which the normal competition rules don’t apply. This working paper on UBER and UBER-like business models examines issues that such a model faces with regard to labour and competition law with a particular focuses on the competition law implications if UBER’s business model is not subject to labour law. The paper first describes the UBER model and the labour law questions. Then it examines the possible competition law implications of UBER and UBER-like business models. After presenting a recent antitrust court decision in the US in a pending antitrust case against UBER, the paper finally briefly explores potential ways how UBER and UBER-like can prevent antitrust liability.