The Cloud Remedy is Not Long Enough (page 367)
The Microsoft Cloud Remedy has a duration of ten years. We note that some third parties told us that this was a sufficient duration to remedy the SLC. However, the SLC in cloud gaming services that we have found arises from a structural change in the market. As a result, the SLC and the adverse effects arising from it are not time limited and could endure beyond ten years. Although we recognise the possibility that the changing nature of the market might result in circumstances where the SLC may no longer apply, we do not have a high degree of confidence in such an outcome. While the Consumer and Streaming Provider Licences are perpetual, the other protections and commitments of the remedy, including monitoring and enforcement, would expire after ten years, leaving it materially weaker.
Our view is that the time-limited nature of the Microsoft Cloud Remedy is a clear and further weakness in terms of its effectiveness as a comprehensive solution to the SLC. While the duration of the remedy could be extended, or the end-date removed, this would create additional risks in terms of specification in the context of obsolescence and/or distortion of the market, and in terms of effective monitoring.
Assessment of impairment to dynamic competition will almost always involve consideration of expectations (i.e. an outcome with a more than 50% chance). Clearly, that outcome will involve consideration of multiple factors, but we doubt very much (although of course every case must turn on its facts) if an impairment to dynamic competition that is not thought to manifest itself within five years at the outside can be considered to be an expectation. The world is simply not that predictable.
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CAT told CMA previously they should only assess risks to a market over a 5 year period because more than that is too hard to predict.
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