Xbox |OT|

[Ryuu96]

My highlights from the EC (European Commission) decision (256 pages).

This is PART 3, you can check PART 1 here and PART 2 here.

And done! 😅

COD (native) coming to Switch but not before August 2024 (page 107)

Finally, the Commission notes that Microsoft and Nintendo signed the Letter of Intent on [...] 2022 (the "Nintendo LOI") based on which Microsoft has committed to develop and publish future console versions of the Call of Duty title for native execution on the Nintendo platform for at least 10 years from the later of 30 August 2024 and the date of completion of the Transaction.

According to MS, a new higher specification console is coming soon from Nintendo (page 108)

In that respect, in its SO Response, the Notifying Party submitted that Nintendo is expected to launch soon a new higher specification console that would become an even stronger competitive constraint on PlayStation and Xbox. However, the Commission's market investigation produced no evidence on whether and when Nintendo will launch a next generation console nor whether the specifications of this new hardware would be more or less comparable to the specifications of Sony's and Microsoft's current console generations. In that regard, Nintendo submitted that "The process of constant development work has been affirmed generally by Nintendo on several occasions publicly".

According to MS, World of Warcraft cannot easily be integrated into a subscription service (page 109)

The Notifying Party submitted that it will not have the ability to foreclose its rivals in a potential market for PC multi-game subscription services. This is because Activision Blizzard games such as Call of Duty or World of Warcraft are not an important input. In particular, World of Warcraft is a single-game subscription service that has never been made available on multi-game subscription services and cannot easily be integrated into one. In addition, game distribution on PC mainly takes place through buy-to-play stores, such as Valve's Steam, which is the clear market leader in PC game distribution.

MS expects that cloud gaming will account for only [0-5]% of the total consumer spend on gaming by 2025 (page 111)

In addition, the deals the Notifying Party closed with competing cloud game streaming services reflect a genuine desire to distribute Activision Blizzard's content broadly. Finally, cloud gaming is expected to have only limited consumer adoption. The Notifying Party expects cloud-based streaming to account for only [0-5]% of the total consumer spend on gaming by 2025.

PC cloud gaming on Game Pass Ultimate has a low penetration rate (page 114)

With regard to PC cloud game streaming, the Notifying Party submitted that, first, Game Pass Ultimate cannot foreclose cloud game streaming competitors, because the cloud game streaming feature of Game Pass Ultimate has achieved [business secrets concerning business strategy] penetration.

Second, Microsoft does not have downstream market power, as its shares of the downstream cloud game streaming segment are well below the level that gives rise to foreclosure concerns. In particular, Xbox Cloud Gaming has a market share of [10-20]% by MAU on PC in the EEA and of [20-30]% by MAU on PC worldwide.

Third, given the low penetration rates of cloud game streaming on PC, it is implausible that PC game distribution could be foreclosed.

The EC considered that in 5-10 years cloud game streaming services could disrupt the way console and PC games are distributed and that MS had a significant first-mover advantage (pages 118-119)

The majority of market participants that expressed a view consider that consumers will resort more to playing a game via cloud game streaming as a substitute to downloading games in the next 5-10 years, both on console and on PC.

Based on the above, the Commission considers that cloud game streaming services are well placed to disrupt the way console and PC games are distributed, and will therefore become an important part of the distribution of console and PC games in the near future. A first-mover advantage in this developing part of the market could therefore have a significant impact on the competitive dynamics in the market going forward.

The EC considered that ABK would have started licensing its video games, including Call of Duty, to cloud game streaming services (page 119)

However, based on Activision Blizzard's internal documents, the Commission considers it likely that, absent the Transaction, Activision Blizzard would have started licensing its video games, including Call of Duty titles, to cloud game streaming services, and in particular those that have a BYOG, buy-to-play or free-toplay business model.

The EC considered that MS would have the ability an incentive to foreclose games from ABK to rival providers of cloud gaming (page 129)

Given the significantly large engagement that shooter and role-playing games generate, and Activision Blizzard's games in particular within them, it is key for third-party cloud game streaming services to include such franchises in their library to remain competitive in a scenario in which such games become available on Game Pass Ultimate's cloud game streaming feature post-Transaction. As indicated by Microsoft's internal documents (see recital (517) above), [business secrets from an internal document]. Should Activision Blizzard's games become exclusively available via Game Pass Ultimate's cloud game streaming feature post-Transaction, alternative catalogues that do not include Activision Blizzard's games would represent a considerably less preferable option for gamers, which would not allow cloud game streaming services to effectively compete.

Third, rival providers of cloud game streaming services would not be able to build a catalogue attractive enough to react to the exclusive inclusion of Activision Blizzard's games into Game Pass Ultimate post-Transaction. The alternative games that rival distributors of cloud game streaming services would be able to find would not be enough to replace Activision Blizzard's games in case of a foreclosure strategy, and would in any case be significantly less preferred. In this regard, it is worth noting that rival cloud game streaming services are not vertically integrated and therefore could only rely on third-party AAA content. Popular AAA content by independent developers (especially those that do not offer cloud game streaming services, and that would be more likely to license their games to such distributors), is limited and in any case hardly comparable to Activision Blizzard's games. Therefore, rival distributors would not be able to react to Microsoft's foreclosure strategy by sourcing comparably attractive content that would give them the ability to effectively compete.

How worldwide revenues from multi-game subscription services (on PC and console) have grown for MS since launching Game Pass (page 132)

In particular with regard to Game Pass, the Commission notes that USD […] or […]% of the estimated value of the Transaction to Microsoft comes from the acceleration of Game Pass subscriptions. As submitted by the Notifying Party, the share of revenue generated by Game Pass Ultimate (i.e. the offering including cloud game streaming) out of the total revenue it generated with multi-game subscription services constantly increased between 2019 and 2021, and represented […] of this revenue in 2021, both for PC, and for console. For PC, Game Pass Ultimate's share of Microsoft's worldwide revenues from multi-game subscription services grew from [20-30]% in 2019 to [70-80]% in 2021. For console, the corresponding share grew from [5-10]% in 2019 to [50-60]% in 2021.

When discussing future acquisitions, it looks like MS evaluates the possibility of making the IPs acquired cloud exclusive? (page 133)

Therefore, the Commission considers that the Notifying Party has an incentive to foreclose competing cloud game streaming providers from accessing either Activision Blizzard's console or its PC games.

Based on Microsoft's stated deal rationale, as well as internal documents, [business secrets concerning business strategy]. Moreover, internal documents show that [business secrets concerning business strategy]: (a) When assessing several game developers as targets for acquisitions in the past years, Microsoft constantly mentioned [business secrets concerning business strategy].

The Notifying Party submitted that it does not have the financial incentive to pursue a foreclosure strategy in a highly uncertain and unprofitable area such as game streaming. In relation to the documents above, the Notifying Party submitted that they merely discussed several options, which Microsoft could pursue, and that its gamer-centric strategy is not predicated on withholding Activision Blizzard's content from rival cloud game streaming providers. The Commission however considers that such internal discussions indicate that Microsoft continues to be committed to invest in a form of cloud game streaming, and that it would have to gain from offering Activision Blizzard's games exclusively on its own cloud game streaming service.

For the EC, the agreements with Nvidia, Boosteroid and Ubitus were a good sign to address the concerns raised (page 135) | The CMA thought that they were a short term solution conditioned by the review process and not made in good faith

The finding in recital (556) above is not undermined by the Notifying Party's reply to RFI 26 of 27 February. In it, the Notifying Party explained that today, it "offers its first-party titles to two rival cloud game streaming providers, namely Sony and, since recently NVIDIA" and that "a number of its games were previously available on Google Stadia until its shutdown in January 2023". Recently, the Notifying Party has recently entered into licensing agreements with two further cloud game streaming providers, Boosteroid and Ubitus. In this regard, the Commission notes that, the agreements with Nvidia, Boosteroid and Ubitus indicate the willingness of the Notifying Party to address the concerns raised by the Commission in the context of the merger review of this Transaction, rather than being an indication for the Notifying Party's past behaviour.

According to MS, only [10-20]% of Game Pass Ultimate MAU stream games from the cloud (page 136)

In this regard, the Notifying Party notes that only [10-20]% of Game Pass Ultimate MAU stream games from the cloud, and that the [business secrets concerning business strategy] of Xbox Cloud Gaming is yet to be proven. However, this appears in contrast with Microsoft's internal documents that [business secrets concerning business strategy] .

According to MS, gaming accounts for less than [10-20]% of the time users spend on their PCs; but the EC disagreed with that number due to MS internal documents (page 140 and 151)

First, the Notifying Party submits that the availability of PC games is not an important factor for competition between PC OS, and that it does not play a relevant role in determining consumers' PC purchasing decisions. On the contrary, such decisions would be determined by other factors such as price, performance, ease of use, battery life and compatibility with smartphone OS. According to the Notifying Party, this is demonstrated by the fact, for example, that based on Windows telemetry data gaming accounts for less than [10-20]% of the time users spend on their PCs.

However, the Commission considers that such numbers may not be representative. As indicated by the Notifying Party, these shares are calculated [business secrets concerning methodology]. Therefore, they do not appear to be indicative of the number of PCs that are used to play video games, because they refer only to a subset of Windows PCs, excluding (i) PCs with other versions of Windows and (ii) Windows 11 PCs that have not opted into sending telemetry data. In addition, other Microsoft internal documents report that [business secrets concerning methodology]. The Notifying Party explained that the [50-60]% figure referred to in the internal document at hand is a result of human error and should be lower, i.e. between [30-40]%, and that such figures are not indicative of the importance of gaming because they also capture PC users that played PC games only once in a year. Even if the [50-60]% figure was not correct, the Commission notes that Microsoft's internal documents show that the actual share of PC users that play games is higher than the one initially provided by the Notifying Party (i.e. [20-30]%). In any case, even roughly a quarter of all PC users, as claimed by the Notifying Party, is a very sizable share

Candy Crush is only the third largest mobile game by active users on Android in Europe (page 141)

What is more, according to the Notifying Party, while Candy Crush is a popular game on mobile devices, no evidence suggests that such game is popular on Chromebooks. On the contrary, Candy Crush is, on average across Member States, only the third largest mobile game by active users on Android devices. Accordingly, Activision Blizzard's mobile games do not drive consumers' purchasing behaviour, either on the Play Store and, more broadly, on Chrome OS devices.

The average monthly users of Xbox Cloud Gaming on MacOS and ChromeOS is very low (page 147)

Second, according to the Notifying Party, there is also low demand for cloud gaming on non-Windows PCs. This is demonstrated, for example, by the fact that monthly average users of Xbox Cloud Gaming on MacOS and ChromeOS is […] in number (less than [0-5]% of the worldwide installed base of ChromeOS and MacOS devices). In addition, the Notifying Party submits that further consumer adoption of cloud game streaming is […].

The EC considered that MS had the ability and incentive to foreclose rival providers of PC OS by tying ABK's games and Microsoft's distribution of games via cloud gaming to Windows (page 150 and 157)

The Commission considers that, in addition to a total foreclosure strategy (whereby Game Pass Ultimate would become (i) the only cloud game streaming service offering Activision Blizzard's games and (ii) exclusively accessible via Windows) there are several ways in which the merged entity could engage in partial foreclosure of rival providers of PC OS, that are close to a total foreclosure scenario (e.g. (i) by making Activision Blizzard's games available with significant delay on third-party cloud game streaming services, or (ii) by making only some of the games available via third-party cloud gam streaming services, or (iii) by licensing to third-party cloud game streaming services reduced versions of Activision Blizzard's games).

From this viewpoint, the arguments set out below on the Notifying Party's ability to foreclose rival providers of PC OS also apply to partial foreclosure scenarios.

Furthermore, as explained in more detail in recitals (704)-(705) below, compatibility layers do not seem to be an effective tool for delivering high-quality gaming on nonWindows OS. In light of this, the Commission considers that the fact that 95% of PC games are played on Windows is indicative of the scarcity of games, and in particular high-quality games and gaming experience, on non-Windows OS. Therefore, availability of games through cloud game streaming services would likely be more effective in bringing more AAA Windows games (such as Call of Duty) to nonWindows PCs, thereby effectively bridging the gap in games availability between PC OS and lowering the barriers for non-Windows OS to increase their competitive pressure on Windows.

Game Pass Ultimate accounts for nearly [70-80]% of the current […] million Game Pass subscribers (page 161)

Microsoft has been the first company to heavily invest in cloud gaming as part of its gamer-centric and device-agnostic vision and business models. The launch and growth of Game Pass, including its top-tier Game Pass Ultimate that offers a cloud game streaming functionality, is a building block of such commercial strategy. With Game Pass Ultimate, which accounts for nearly [70-80]% of the current […] million Game Pass subscribers, Microsoft may have a […] which Microsoft discusses in its internal documents.

[10-20]% of ABK total mobile revenues come from Android; Apple numbers are even bigger (page 168)

According to the Notifying Party, in particular, such retaliating measure would be very detrimental for Microsoft, since Activision Blizzard today generates [40-50]% of its mobile revenues and [10-20]% of its total revenues from the Android platform only. On the contrary, Activision Blizzard's Android games account for approximately only [0-5]% of Android gaming revenues, and an even smaller proportion of the overall Android app revenues.

The Notifying Party argues that this would be very detrimental for Activision Blizzard's business: Activision Blizzard generated USD 3 billion in revenues from the Android platform, accounting for [40-50]% of Activision Blizzard's mobile revenues and [10-20]% of its total revenues. Similarly, revenues from Apple's mobile devices account for [50-60]% of Activision Blizzard's total mobile gaming revenues and [10-20]% of its total revenues.

The EC considered that MS would have the incentive to link Game Pass to Windows as a strategy to improve or protect the market position of Windows (page 172)

In this regard, the Commission notes that Microsoft's internal documents [business secrets concerning business strategy], capable of driving [business secrets concerning business strategy]. Microsoft refers, among other things, to the opportunity to [business secrets concerning business strategy] in the market or PC OS, and that [business secrets concerning business strategy].

As already mentioned above, the Commission considers this indicative of the fact that Microsoft would in general have the incentive to link Game Pass to Windows as a strategy to improve or protect the market position of the latter. The Commission considers that the Transaction would increase significantly Microsoft's incentive to engage in such strategy, in light of the considerable increase in visibility of Game Pass, including Game Pass Ultimate, thanks to Activision Blizzard's games. Therefore, the Commission considers that the Transaction may help Microsoft protect the position of Windows' position in the market for PC OS, which is being challenged by Apple and Google.

The EC had a list of shortcomings related to the Initial Commitments offered by MS (pages 188 - 189)

First, the Commission considers that the definition of Eligible Streaming Services is not sufficiently clear and entails a risk of circumvention. The definition contains two alternatives. Whether the first is fulfilled depends on an "Authorized Store", which is defined as either the Microsoft Game Store or an authorized third-party store. Thus, in order to qualify as an Eligible Streaming Service under the first alternative, a streaming provider either depends on the willingness of Microsoft to grant access to its own store or on third parties to do the same. Many of the Activision Blizzard games, however, have not been sold on third-party PC stores pre-Transaction. Thus, if Microsoft would refuse access to the Microsoft Game Store, even if third party game stores would give access to their stores to cloud-game streaming providers, players that have purchased games on Battle.net would still not be able to stream their games. Therefore, absent an obligation for the Notifying Party to allow streaming providers to link user accounts with Battle.net under certain conditions, the first alternative is not suitable to ensure that cloud game streaming providers can qualify as Eligible Streaming Service.

The second alternative is vague. The Commission considers that the market participants who did so are right to point out that it is not clear under which conditions a streaming provider can qualify as Eligible Streaming Service under the second alternative.

Second, market participants have rightfully pointed out that the Commission has raised concerns for PC and console games where the Initial Commitments only foresee licenses for PC games.

Third, the scope of the Consumer License is too limited with regard to games that consumers are allowed to stream. Even though today the vast majority of games are purchased individually, multi-game subscription services are becoming more popular.

Fourth, similarly to the previous point but with regard to different business models streaming providers might pursue, the Commission considers that the scope of the Streaming Provider License Commitment should be extended to allow streaming providers that are licensed by the Notifying Party to offer Activision Blizzard games for purchase or as part of a multi-game subscription service to also stream these games under the commitments.

Fifth, the Commission considers that since the streaming rights are based on the license for the actual game that has been purchased, there would not be much room to deteriorate the availability of the same game with the same features for cloud game streaming providers.

Sixth, with regard to the fast-track dispute resolution mechanism, the Commission considers that the fast-track arbitration procedure under the Initial Commitments should take place within the EEA, and not only in the US as foreseen by the Initial Commitments.

The EC considered that some concerns voiced during the market investigation went beyond what was needed to fix (page 189)

The Commission considers that some concerns voiced in the First Market Test go beyond what is needed to eliminate the competition concerns identified by the Commission. This includes in particular the position that Microsoft should be obliged to allow the at least EEA-wide distribution of Activision Blizzard's games via cloud game streaming services and the inclusion of Activision Blizzard's games in combined multi-game subscription/cloud game streaming offers. The same applies to the concerns voiced about not making Game Pass available on other PC OS, degrading PC versions in general compared to Xbox versions, the impact of the remedy on the availability of games for non-Windows PC OS and about the license fees for the Windows PC OS payable by cloud game streaming providers.

After the first market test, MS offered a revision of the initial commitments (page 195)

In order to address the concerns expressed by the Commission based on the replies of market participants to the First Market Test, the Notifying Party submitted Revised Commitments on 3 April 2023.

With regard to the overall scope of the commitments, the Revised Commitments contained notably the following changes:

(a) The definitions of an Authorized Game Store and of Eligible Games are extended to also cover console games.

(b) In addition, the definition of Eligible Games clarifies that in case there are different versions of a PC game for different operating systems, each of these versions are Eligible Games. The definition of Eligible Games further includes all additional content that is made available for Eligible Games, such as addons, download content or in-game purchases.

 The definition of a Streaming Service was expanded to cover a cloud game streaming service that allows Consumers to play, from the service provider's cloud-based servers, PC or console games for which the Consumers have already obtained a license for download of the game (including through either buy-to-play, free-to-play, or subscription).

After the second market test, MS offered the final version of the commitments (pages 202 - 203)

Compared to the Revised Commitments, the Notifying Party has introduced a series of refinements in the Final Commitments, mainly clarifying the scope of the Commitments and limiting the risk of circumvention or misinterpretation of the Commitments.

The main changes in the Final Commitments are:

(a) The definition of an Authorized Game Store now also covers game stores that distribute Eligible Games via a multi-game subscription service.

(b) The definition of Entitlement Data also covers Eligible Games for which a consumer has obtained a license via Game Pass. Thus, under the Final Commitments, Microsoft is obliged to provide Eligible Cloud Services that are allowed to stream a game from a Major Publisher with information about games for which subscribers of Game Pass have a license.

 The definition of Microsoft Game Store was amended to include any digital PC game store owned by Microsoft, including Battle.net or any successor store.

(d) The list of Major Game Publishers was expanded to include Square Enix, Bandai Namco Entertainment, Sony and Nintendo. In addition, it was clarified in the Streaming Provider License Commitment that the determination of whether a Streaming Service is licensed to provide cloud game streaming by another Major Game Publisher would take place at the time the Streaming Service seeks access to a Microsoft Game Store.

(e) The reference to a download of the game was deleted in the definition of Streaming Service and in the description of the Consumer License.

(f) For the second alternative of the definition of an Eligible Streaming Service, it was clarified that it includes checking for a license via APIs.

(g) Microsoft commits not to terminate or degrade the existing availability of access to Eligible Games through applications which do not require integration with an Authorized Game Store, including the availability of public APIs for the Microsoft Game Stores, as available at the Closing Date.

(h) For new releases, the Streaming Provider License covers Eligible Games, including publicly available beta versions and early access releases, from the moment of availability of the respective game on Game Pass, in addition to the moment of availability on a Microsoft Game Store or any other Authorized Game Store.

The EC considered that the final commitments were as effective as a structural remedy and that divesting part of ABK would not have covered the entire existing and future games of ABK (page 205)

Therefore, the Commission considers that the Final Commitments are as effective as a structural divesture and even have additional benefits that go beyond preserving the situation absent the Transaction. Whatever part of the Activision Blizzard business Microsoft could have offered to divest, such divestiture would not have covered the entire existing and future games of Activision Blizzard. Furthermore, the Commission takes the view that the Final Commitments can be implemented and will be effective. The licenses will apply automatically. The license to consumers will grant to all consumers in the EEA as of day one streaming rights which empower these consumers to benefit from the games they have access to in additional ways that they did not have pre-Transaction. Taking a divestiture remedy as a benchmark for effectiveness and efficiency, the Final Commitments are suitable to address the competition concerns.

The EC considered that the final commitments were more effective than a prohibition too (page 205)

In line with the above, the Commission considers that the Final Commitments have additional benefits that go beyond preserving the situation absent the Transaction, and are therefore more effective in addressing competition concerns than a prohibition. Even though the Commission concluded that absent the Transaction, Activision Blizzard would have made its games available for cloud game streaming, these games are not available at the time of the Decision. Following the Final Commitments, however, all Activision Blizzard games would be immediately available for streaming and will remain available for the duration of the Final Commitments. It is equally important that they are available not only to a handful of already large cloud game streaming providers but to almost all interested cloud game streaming providers. Under both these aspects, the situation following the implementation of the Final Commitments exceeds the conditions that would have prevailed absent the transaction.

In fact, by making the popular Activision Blizzard games available to all interested providers under a royalty-free license, the Final Commitments can be expected to significantly advance the development of cloud game streaming in the EEA.

List of ABK studios, according to MS/ABK (Annex 1, page 12)

High Moon Studios
Infinity Ward
Sledgehammer Games
Toys for Bob
Treyarch
Beenox
Digital Legends Entertainment
Raven Software
Solid State Studios
Blizzard Entertainment
King

From all the REDACTED data related to segmenting the market by genre, we can guess that these are the leading games in each genre on Xbox (page 11 from Quantitaive Analysis) | In 2021, I would guess

- Assassin's Creed Valhalla in Action + Adventure
- Mortal Kombat 11 in Fighting
- Forza Horizon 5 in Racing + Flying
- Elden Ring in Role Playing
- Call of Duty Modern Warfare in Shooter
- Call of Duty Black Ops Cold War in Shooter
- Halo Infinite in Shooter
- Farming Simulator 22 in Simulation/Strategy
- FIFA 21 in Sports
- FIFA 22 in Sports
- NBA 2K22 Sports

Source: Idas