| European Commission (EC) | Competition and Markets Authority (CMA) |
Market Definitions (from Phase 2/In-Depth Review) |
- Console market
- PC Operating Systems
- Distribution of console and PC video games, including multi-game subscription services and cloud gaming services.
- The EC notes cloud gaming is an "innovative market segment" and highlights competition concerns in the "distribution of games".
- "For us, [cloud game streaming] is not a separate market, it's a segment of the overall [video games] market." (Financial Times)
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- Console gaming services
- They did not consider it appropriate to further segment the console market by console type, but assess the closeness of competition by rivals.
- Console gaming services incorporates the console hardware, integrated storefront, including B2P and MGS.
- Cloud gaming services
- Game publishing markets (each for PC, console, and mobile).
- Genres were not concluded as its own market and considered in the scope of publishing.
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Potiential harm to competition / SLCs results |
WOULD NOT concern competition in rival consoles and rival multi-game subscription services
MS would have no incentive to refuse to continue distributing to Sony, and have strong incentives to continue to.
Even if they did, it would not harm competition in this market.
Activision would not have made its games available on a MGS and MGS providers are therefore unimpacted.
- WOULD harm competition in the distribution of PC and console games via cloud game streaming services
- Activision games exclusive to its own cloud service, Game Pass Ultimate, and withheld them from other providers, would reduce competition.
- WOULD strengthen the position of Windows in the market for PC operating systems if games were made exclusive to GPU.
- Streaming games via non-Windows OS could be degraded.
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- WOULD NOT substantially reduce competition in console gaming services in the UK.
- Microsoft would not be incentivized to make CoD exclusive to Xbox.
- Making CoD available on Xbox on better terms than on PlayStation would not materially harm PlayStation.
- WOULD substantially reduce competition in the Cloud Gaming Services market.
- MS owns a gaming platform, PC OS, cloud infrastructure already. Estimated 60-70% market share in global cloud gaming services already.
- Would be incentivized to make ABK games exclusive to GPU.
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Relevant Customer/Competition Benefits (considering proposed remedies) |
The right to stream games purchased or subscribed to via MGS with any cloud game streaming service of their choice, and play them on any device using any operating system.
Boosts the development of cloud game streaming in the EEA and unlocks significant benefits for competition and consumers by bringing Activision's games to new platforms, including smaller EU players, and to more devices than before.
Press summary did not mention RCB of Game Pass inclusions or addition to platforms like Nintendo, unsure of stance or analysis.
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- Game Pass including Activision games seen as an RCB, though its value may degrade over time due to pricing, competition, and it would not see full effects until 2025 (COD).
- Attempts to enter the mobile gaming market not seen as an RCB: far from certain, given current circumstances of Android and iOS prohibiting rival mobile gaming app stores or strict limits at monetization.
- No RCB to the Cloud Gaming Services market as the harm from the SLC would be substantially reduced more than any RCBs foregone.
- "Nintendo RCB" was not accepted as they did not see proof that such benefits would accrue within a reasonable period, there was no concrete timeline/plan in place for developing a Nintendo version, and MS has short-term incentives to enter the agreement + the merged entity would not have more incentive to place CoD on Nintendo than ATVI does already pre-Merger.
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View on the "Cloud Remedy" proposal |
Seen as "solving the problem" of the concerns and "pro-competitive... we think the remedies will kick-start this market"
The 10 year commitment to license the catalog "significantly improves the conditions for the emergence of cloud game streaming."
A commitment to license all-comers for free was "very simple" and "not hard to monitor"; non-compliance would be obvious to anyone seeking a license.
Accepting the behavioral remedy seen as "future proof", since the games will be available to cloud-streaming services regardless of their computer operating system or business model and isn't "prescribing anything".
- Cloud gaming is 1% of the market in 2022, and "if the concern was not resolved then the merger could not go ahead", but was able to with the Cloud Remedy. (Vestager interview clip)
A Brussels spokesman added that the Commission had "based its decision on hard evidence and on extensive information and feedback", while sources dismissed the UK's concerns about cloud gaming, saying that it accounted for just 1pc to 2pc of the overall market and any potential competition impact was therefore not significant. ( telegraph.co.uk)
"Free license access to all Activision games for cloud gaming providers and users, creates opportunities for innovation, and prevents barriers for competitors."
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- Behavioral remedies apply in cases such as: regulated environments, where there are expert monitors, or where SLC is short windowed.
- Cloud remedy fits none of these as it is new, unregulated, and expected to continue beyond 10 years.
- Does not provide commercial relationships between providers and publisher (ATVI) such as Stadia-like storefronts to buy the game for that streaming service, exclusivity deals, joint marketing arrangements, or MGS.
- Believes Activision would have entered the market by licensing content to streaming services as the market grew over time.
- Applies to current and future PC and console versions of ABK games, but believes MS would have no incentive to make ABK games on MacOS or Linux, meaning streamers would have to use, or be compatible with, Windows OS versions.
- Believes absent the Merger, Activision would seek to maximize value from games by considering making non-Windows versions.
- Does not accept Microsoft's reasons for not committing to making all ABK games compatible with Proton or other 3rd party compatibility layer software. Microsoft proposed to commit to not degrading compatibility layers, but shouldn't be responsible for 3rd party development and in some cases could need incompatibility (such as anti-cheat or anti-hacks). CMA found such stipulations arbitrary and hard to enforce.
- Found it to be "only for 10 years [representing] a clear weakness in terms of its effectiveness as a comprehensive solution to the SLC, which is not itself time limited".
- Considers it to be very difficult to monitor and enforce this remedy, even with significant information gathering, as well as several additional concerns with the practicalities of implementing the remedy.
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