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The CMA published new documents:
- Notice inviting comments on submission received on material change of circumstances/special reasons (3 pages)
- Microsoft submission (34 pages)
Highlights from the notice:
In response to that notice, Microsoft has made a series of submissions to the CMA about developments since the publication of the Report, including the acceptance by the European Commission of commitments offered by Microsoft and the agreement recently entered into between Microsoft and Sony. These submissions state that there has been a material change of circumstances since the Report or that there are otherwise special reasons for reaching a different decision on the remedies question. Microsoft provided its final and consolidated submission on these matters on 25 July 2023. A non- confidential version of this submission has been published on our website today.
Submissions under section 41(3) of the Act regarding material change of circumstance or special reasons are very rare. It is not a usual part of the CMA's process during a remedies implementation period to consult on submissions received in response to a consultation on a proposed undertaking or order. However, in light of the guidance provided by the Competition Appeal Tribunal on this specific case, the Inquiry Group has decided it is appropriate to do so in this case.
Any person wishing to comment on Microsoft's submissions is now invited to do so. In particular, the CMA welcomes submissions on whether or not there has been a material change of circumstances since the preparation of the Report and/or that there is a special reason for the CMA to take remedial action other than as proposed in the Report (and as set out in the proposed Order previously consulted upon), on the bases set out in Microsoft's submission.
Representations made in response to this Notice should reach the CMA by the end of 4 August 2023. Representations should be made in writing and should be sent by email to: Microsoft.Activision@cma.gov.uk.
The Inquiry Group will have regard to any such representations received by the deadline stated above in making its final decision on remedial action. The statutory period for the CMA either to accept final Undertakings or make a final Order ends on 29 August 2023.
In addition, as the CMA is aware from its confidential discussions with the Parties, Microsoft is in the advanced stages of putting forward a proposal to modify the relevant merger situation (RMS) that the FR addressed. The modified RMS would be different such that it would amount to a new RMS within the meaning of section 33 of the Act. In circumstances where a new RMS supersedes the RMS in relation to which the FR was produced, and can deal with the concerns identified in the FR, a Final Order which had the effect of prohibiting or qualifying the completion of the RMS would be plainly unjustified.
