I updated the OT with next key dates and the last 15 days.
As you can see, the rest of April is fully packed with potential relevant news. Then, early May should bring the decision from the EC and in late May we should get the one from SAMR in China.
Finally, add the decisions from South Korea, Turkey, South Africa or Australia during April - May.
On the FTC side, the discovery phase was finally closed (on April 7th). So, I guess that now we'll start to hear more about the
witness and experts lists.
Fun weeks ahead, no doubt!
THE LAST 15 DAYS
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March 24th: The CMA modified the original provisional findings and dropped the concerns about the console market.
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March 28th: The Japan Fair Trade Commission approved the acquisition.
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April 5th: MS could have expanded the remedy offer to the EC; talks with the CMA continue.
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April 5th: the CMA updated the administrative timetable (April 12th, final deadline for all parties' responses/submissions).
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April 6th: the CMA published the responses to the addendum PF.
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April 6th: the remedies working paper from the CMA likely to be issued by the end of next week.
NEXT KEY DATES:
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April 10th 2023: the Canada Competition Bureau will update the list of merger reviews completed during the previous month (probably nothing will come out of it, but my guess is that sooner rather than later there will be a decision).
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April 12th 2023: final deadline for all parties' responses/submissions to the CMA.
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April 14th 2023: the CMA will likely issue the remedies working paper (MS/ABK will have 5 working days to respond).
- Early April 2023: the EC will keep assessing the market test conducted for the remedies proposed by MS.
- April 18th 2023: second extension of the original outside date. If MS quits by that date they have to pay a termination fee of $2,500,000,000; if they don't, the outside date gets extended until July 18th 2023.
- April 26th 2023: final report and remedies from the CMA.
- April 28th 2023: decision from New Zealand.
- May 2023: decision from the SAMR in China.
- May 22nd 2023: provisional deadline for a decision from the EC.
- July 18th 2023: The end of the second extension and final outside date in the merger agreement. If MS quits by that date they have to pay a termination fee of $3,000,000,000; if they don't, they'll have to renegotiate the outside date with ABK.
- August 2nd 2023: beginning of the FTC in-house trial.
- Early 2024: decision from the FTC administrative law judge.
- Anything beyond that: unknown
Meanwhile...
UK Has No Margin For Error in Microsoft-Activision Deal (from the Washington Post, on April 3rd)
New bit of "info" (opinion):
Questions/Comments:
Very likely, but there is an another complaint from Cloud Infrastructure Services Providers in Europe (CISPE), a trade group whose members include Amazon. They are not part of that settlement. So, MS will still have work to do in the EU.
On the other hand,
this week Ofcom (in UK) said it was particularly worried about the practices of Amazon and Microsoft because of their market positions in cloud, and planned to ask the CMA to investigate. :p
Cloud is going to be a complex industry from a regulatory perspective for many years.
The latest decisions from the EC regarding mergers in Phase 2:
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The acquisition of VOO and Brutélé by Orange: approved on
March 20th 2023, provisional deadline was
April 11th 2023.
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Commission prohibits acquisition of GRAIL by Illumina: rejected on
September 6th 2022, provisional deadline was
September 12th 2022.
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Commission clears the merger of Cargotec with Konecranes, subject to conditions: approved on
February 24th 2022, provisional deadline was
March 3rd 2022.
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Commission clears acquisition of Kustomer by Meta, subject to conditions: approved on
January 27th 2022, provisional deadline was
February 4th 2022.
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Commission clears acquisition of GrandVision by EssilorLuxottica, subject to conditions: approved on
March 23rd 2021; provisional deadline was
April 12th 2021.
As you can see, the EC usually makes a decision ahead of schedule.
I'm still expecting the decision from the EC in May, but 1-2 weeks earlier than May 22nd.
If the remedies working paper is really coming by the end of next week, is going to be even less than 2 weeks :S
In any case, and as you say, the work already done in the PF helps as well as the one done on remedies since February (the final report has a bigger focus on that).
The term (10 years) is one of the most likely candidates.
Yes, it's very likely that MS is offering a global remedy package.
Yes, you are right, it could be shorter than 6 months or it could take even longer than 9.
If the EC and CMA approve the acquisition, I'm really curious to see how MS deals with the FTC (if they don't accept remedies).
Yes, that's how the remedy offered by MS works regarding cloud gaming.
The survey from Sony precedes the one from the CMA
I don't think so, that's why I thought that paragraph was interesting.
I don't think so. He says that he has been following the case and once the console concerns were dropped he thought about writing regarding the cloud gaming issues.
It's part of the process.
In Europe, if Sony appeals the decision (being a third party), they must show that it causes a
"direct and individual concern to them" (article 263 of the Treaty on the Functioning of the European Union). As a competitor to the merging parties I think that they should be able to argue in that sense. After all, competitors are a major source of third-party appeals.
However, appealing the decision wouldn't have a suspensory effect (article 278 of the Treaty on the Functioning of the European Union doesn't allow it).
Then, Sony could request the President of the General Court (the court that would review the decision from the EC in first instance) to suspend the act (the decision) or adopt some other interim measure. But Sony should be able to show that adopting such a measure is urgent. For example, something like pure financial loss (as Jim Ryan implied to the CMA when he said that
"Our business would never recover") is only considered irreparable if it threatens the existence of the applicant (Sony) or irreparably modifies its market share (hard to argue in this case, I think).
In any case, the General Court will always balance the interests of Sony against the interests of MS/ABK and the importance of maintaining effective competition before granting a request for suspension or a similar measure.
If Sony cannot temporarily suspend the decision, and depending on the procedure, they would have to wait between 1 and 3 years before the General Court reaches a judgment about it.
In UK, the basics are pretty similar:
- Third parties can appeal if they have a
"specic interest and strong feelings that render them aggrieved."
- No suspensory effect on the decision appealed, "
Except in so far as a direction to the contrary is given by the CAT".
I think that the main differences between both jurisdictions are timing (2 months to appeal against the EC, 4 weeks against the CMA) and that in the General Court a substantive review of the EC decision (with limitations) is possible. Meanwhile, the CAT only admits a judicial review of the decision.
