In a recent blog post on this site about the Microsoft/ Activision Blizzard merger, the European Commission had just reached a decision to approve the merger subject to remedies, but the investigations in the USA and UK were still ongoing. Since then, the merger has been approved by competition authorities around the world, including in the USA and UK, and thus the merger has gone through.
However, there were some differences in the way the case unfolded under the regulation of these three competition authorities.
The European Commission’s (EC) decision
The European Commission (EC) was the first to give the merger the green light. The EC’s in-depth investigation revealed concerns about the market for the distribution of games via cloud game streaming services. In particular, the concern was related to the possibility that Microsoft might make Activision’s games exclusive to its own cloud game streaming service (Game Pass Ultimate) and restrict access from competing cloud game streaming providers.
The EC argued that this in turn could strengthen Microsoft’s position in the market for PC operating systems, as Microsoft may have an incentive to limit or reduce the quality of the streaming of Activision’s games on PC’s which do not use the Windows operating system.
Thus, while the merger was approved, this was subject to remedies. These remedies included 10-year licensing commitments from Microsoft, as outlined in the EC’s press release:
These licenses will ensure that gamers that have purchased one or more Activision games on a PC or console store, or that have subscribed to a multi-game subscription service that includes Activision games, have the right to stream those games with any cloud game streaming service of their choice and play them on any device using any operating system.
This type of remedy is called a behavioural remedy and often requires the merging firms to commit to taking particular actions post-merger. Unlike structural remedies (which may for example, require the merging firms to sell off an entire business unit), behavioural remedies often require monitoring and enforcement by competition authorities. The EC argued that the deal, with these behavioural remedies, could strengthen competition in the market for cloud gaming.
The Federal Trade Commission’s (FTC) decision
The FTC, in the USA, had similar concerns to those of the EC related to the cloud gaming market. These were outlined in the FTC’s press release:
[The deal] would enable Microsoft to suppress competitors to its Xbox gaming consoles and its rapidly growing subscription content and cloud-gaming business.
The FTC also argued that when Microsoft had previously acquired gaming content, it had made this content exclusive to Microsoft consoles. This could result in higher prices, and reduced quality, choice and innovation. To this end, the FTC appealed in an attempt to block the deal, but the Court ruled in favour of the deal going ahead.
During this time, Microsoft announced that it had committed to keeping Call of Duty on Sony’s PlayStation after the merger, and this likely contributed towards the court’s decision. Hence, the FTC was unsuccessful in its attempt to halt the merger.
The Competition and Markets Authority’s (CMA) decision
The final hurdle remaining for Microsoft, was the CMA’s approval. As outlined in a previous blog post on this site, the CMA’s phase 2 investigation revealed similar concerns about the supply of cloud gaming services (amongst concerns related to the market for the supply of console gaming services, which were later dispelled), and whilst Microsoft offered some commitments similar to those accepted by the EC, the CMA did not deem these to be sufficient to address its concerns and thus prohibited the merger.
The CMA’s published remedies guidance suggests that the regulator has a preference for structural remedies over behavioural remedies. One of the reasons for this is because of the requirement to monitor and enforce the commitments, and this therefore formed part of the CMA’s reasons for not accepting the remedies. Unsurprisingly, Microsoft appealed this decision to the UK’s Competition Appeals Tribunal (CAT), probably partly driven by the fact that the EC accepted similar remedies to those rejected by the CMA. However, Microsoft and the CMA agreed that if the appeal was paused, Microsoft could propose a new deal.
The new deal: did the CMA make a U-turn?
In August 2023, Microsoft submitted a new restructured deal for the CMA to review. As described by the Chief Executive of the CMA, this deal was “substantially different from what was put on the table previously” and was therefore investigated as a separate merger case under the CMA’s phase 1 processes.
The new deal meant that Microsoft would no longer be purchasing the cloud streaming rights held by Activision. Instead, the cloud streaming rights would be sold to an independent third-party game publisher – Ubisoft. This means that Microsoft will not be in control of the cloud gaming rights for Activision’s gaming content (outside of the EEA), and therefore will not be able to restrict its competitors’ access to Activision’s games, which was one of the main concerns outlined by the CMA based on the initial merger proposal. The new deal also opens up the possibility that Activision’s games will be made available on cloud gaming services that run on a non-Windows operating system.
On 13 October, the CMA approved this deal, subject to the cloud gaming rights being sold to Ubisoft, and some subsequent commitments from Microsoft in relation to its relationship with Ubisoft post-merger, as outlined in the CMA’s final report. However, the Chief Executive of the CMA has emphasised that they are unhappy with the way that Microsoft dealt with negotiating the approval of the merger:
But businesses and their advisors should be in no doubt that the tactics employed by Microsoft are no way to engage with the CMA. Microsoft had the chance to restructure during our initial investigation but instead continued to insist on a package of measures that we told them simply wouldn’t work. Dragging out proceedings in this way only wastes time and money.
What’s next in big tech?
While the merger deal has now gone through, the FTC has recently re-opened its case against Microsoft, which will continue to unfold over the next couple of months until December when the case will appear in Court. This means it is possible that the FTC could attempt to undo the merger, though this would be challenging.
In the tech market more broadly, the CMA has recently launched a market investigation into cloud services. While the focus of this blog post was on cloud gaming, cloud services are now increasingly being used by many businesses. The CMA’s issues statement suggests that a key focus of its investigation will be on the ability for customers to switch between cloud service providers. Microsoft is one of the largest providers of cloud services in the UK, and therefore it is inevitable that it will be under scrutiny. Given all three regulators’ recent efforts to ‘crackdown’ on big tech, this is just one of a series of cases that will be interesting to see unfold.
Competition authorities documentation
- Discuss the effectiveness of behavioural remedies vs structural remedies for a merger.
- Why might the competition authorities have been concerned about the possibility of Microsoft making Activision’s games exclusive to its own cloud game streaming service? Is exclusive dealing always anti-competitive?
- Why was the transfer of the cloud game streaming rights to Ubisoft seen as a suitable remedy?
Effects on competition in the console and cloud gaming markets
Many people in the games industry expected the Competition and Markets Authority (CMA) to approve Microsoft’s proposed takeover of the games business, Activision Blizzard. However, in its final report published on 26 April, the CMA stated that the takeover would result in a substantial lessening of competition (SLC) in the supply of cloud gaming services in the UK. It rejected a behavioural remedy proposed by Microsoft and concluded that the merger should be prohibited.
When analysing the potential impact of this merger, the CMA focused on the following three issues:
- How important is the availability of Activision Blizzard’s games for the competitiveness of Microsoft’s rivals in the console and cloud gaming market? If, following the merger, Microsoft used its control over Activision Blizzard to restrict the availability of the games, would this significantly harm the competitiveness of their rivals?
- If restricting the availability of the games did harm its rivals, would it be profitable for Microsoft to do so? Do the benefits outweigh the costs? The major benefit for Microsoft is the additional sales this generates as consumers switch to its products to gain access to Activision’s games. The major cost is the forgone sales of the games to their rivals in the console and cloud gaming market.
- If it is profitable for Microsoft to limit the availability of the games, would this policy lead to a substantial lessening of competition (SLC) in the console and cloud gaming market? To answer this question the CMA compared the level of competition that would be most likely to occur if the merger were to proceed with the level if the deal were prohibited? In other words, it needed to identify the counterfactual.
In response to the first issue, the CMA judged that restricting access to Activision Blizzard’s games post-merger would significantly harm the competitiveness of Microsoft’s rivals in both the console and cloud gaming markets. However, its judgment on the second issue differed between the two markets. Why was this? One key issue was the difference in the relative market power of Microsoft in cloud vs console gaming.
One common indicator used to analyse the market position of a business relative to its rivals is market share. Using data on revenues generated from the sales of hardware, associated games and subscription services, console gaming market shares in the UK for 2021 were as follows:
- Sony (PlayStation): 40% – 50%
- Microsoft (xBox): 30% – 40%
- Nintendo (Switch): 10% – 20%
Given the important market position of the PlayStation, limiting the ability of its users to purchase Activision games would result in Microsoft forgoing significant sales and revenue. Detailed analysis of the data by the CMA, indicated that the costs outweighed the benefits and so Microsoft did not have a commercial incentive to limit the availability of the games in this market. Therefore, the CMA concluded that the merger would not result in a SLC in the console gaming market. This finding was discussed in more detail in a blog on this website in March 2023.
The CMA judged that Microsoft had a much stronger position in the market for cloud gaming.
Cloud gaming services
Cloud gaming offers consumers a new way of playing graphically complex games. In this sector of the market, the games run on remote servers/data centres and then stream over the internet to the user’s device. The great advantage with this approach is that it enables consumers to play games on less powerful hardware devices such as smartphones, tablets, smart televisions, and standard PCs. Although the market is currently quite small it, has grown significantly over the past couple of years. Some people argue that it has the potential to make a dramatic change to the gaming market in the same way that businesses such as Netflix and Spotify have transformed the film, TV, and music industries.
It is more difficult to judge the relative market position of firms in a new and dynamic market, where things can change very quickly. The use of market share data is less informative but can still offer some insights. To estimate market shares in cloud gaming, the CMA used data on the number of monthly active users (MAUs). The figures for paid services in the UK for 2022 were as follows:
- xCloud (Microsoft): 70% – 80%
- PlayStation Cloud Gaming (Sony): 20% – 30%
- Boosteroid: 0 – 5%
- Nvidia GFN: 0 – 5%
Data suggest that Microsoft has a much stronger position in this market than in console gaming. There is also evidence that its market position is becoming more dominant. The same market shares for xCloud and PlayStation Gaming in 2021 were 40% – 50% and 50% – 60% respectively.
Given some of the limitations of using market-share data in a new and dynamic market, the CMA analysed other information about the sector to assess Microsoft’s market position. The investigation identified three key factors that could give Microsoft a significant cost advantage over its rivals: cloud infrastructure, the Windows operating system and access to a wide variety of games.
- Infrastructure: Microsoft’s ownership of Azure, a major cloud computing platform, could give it a significant cost advantage over its rivals in the future. A rival firm would need to develop it own cloud infrastructure or purchase these services from a third-party supplier.
- The Windows operating system: Given that far more games are developed for Windows as opposed to other operating systems, using Windows on a cloud infrastructure system gives a supplier access to large number of games. As it already owns Windows, Microsoft will be able to supply the operating system to its own cloud gaming service at little additional cost whereas its rivals will have to pay a license fee.
- Access to a wide range of games: Microsoft already owns twenty-four development studios that produce some very successful games such as Minecraft and Halo. It also has commercial relationships with other third-party developers who produce games for the Xbox console. This gives Microsoft another advantage over many of its rivals.
Given this evidence on Microsoft’s strong market position, the CMA concluded that the benefits to the company of restricting the availability of the games in the cloud gaming market outweighed the costs.
If Microsoft has commercial incentives to restrict the availability of Activision’s games, would this strategy lead to a SLC in the market for cloud gaming? To answer this question, the CMA had to identify the counterfactual: i.e. the most likely outcome in the market if the merger did not proceed. Following detailed analysis of the evidence, the competition authority concluded that Activision was likely to make its games available to different cloud gaming services if the deal did not take place.
Given Microsoft’s (a) strong market position and (b) limited number of relatively small competitors in cloud gaming, the CMA concluded that Microsoft’s commercial incentive to restrict the availability games would lead to a SLC compared to the counterfactual.
Martin Coleman, the chair of the independent panel of experts who conducted the CMA’s investigation, stated that:
Microsoft already enjoys a powerful position and head start over other competitors in cloud gaming and this deal would strengthen that advantage giving it the ability to undermine new and innovative competitors.
In response to these competition concerns, Microsoft offered to supply Activision games to certain cloud gaming services for a 10-year period. However, the CMA concluded that this behavioural remedy was not enough to address the competition issues raised by the merger and recommended that the deal be prohibited.
Microsoft’s immediate response was to appeal the decision to the Competition Appeal Tribunal.
The Federal Trade Commission is currently investigating the impact of the deal in the USA while the European Commission has just completed its investigation in the European Union. On 15 May, the EC announced that Microsoft’s behavioural remedy did fully address the competition concerns identified during its investigation. Therefore, the merger was approved on condition that Microsoft fully implemented the actions outlined in the remedy.
It will be interesting to read the recommendations of the FTC when the final results of its investigation are published later this year.
CMA and EC press releases
- Discuss the barriers to entry that exist in both the console and cloud gaming markets.
- Outline some of the issues when trying to calculate market shares in cloud gaming.
- What is meaning of the term ‘input foreclosure’? How is this relevant to the Microsoft/Activision case?
- What is the difference between a behavioural and a structural remedy? In what circumstances is a behavioural remedy most likely to be effective?
- Discuss some of the potential limitations with the behavioural remedy proposed by Microsoft.
- Explain why Microsoft’s position in the downstream market for cloud gaming is likely to influence incentives it faces to restrict the availability of Activision’s games post-merger.
Why did a competition authority change its mind on one aspect of this merger?
In January 2022, Microsoft announced its plan to acquire Activision Blizzard for $68.7 billion. Activision Blizzard is one of the largest games publishers in the world and famous for titles such as Call of Duty and World of Warcraft. Sales revenue from Call of Duty: Modern Warfare II was over $10 billion within ten days of its release in 2022. Given Microsoft’s ownership of the Xbox, one of the three devices that dominate the market for gaming consoles, the deal was always likely to raise competition concerns.
Potential competition issues
Following Phase 1 and 2 merger investigations by the Competition and Markets Authority (CMA) a number of competition issues were raised. One particular concern was in the market for gaming consoles and the potential impact of the merger on the future availability of Call of Duty (CoD). Some of the key findings of the initial research undertaken by the CMA were that:
- Sony’s PlayStation was a much closer rival for the Xbox than the Nintendo Switch, which tends to offer more family-orientated games.
- PlayStation users spend significant amounts of gametime playing CoD.
- Game availability is a key factor that influences console purchase decisions.
- Twenty-four percent of PlayStation users who play CoD stated that they would not purchase future versions of the console if CoD was unavailable on the platform.
These findings suggest that there are commercial incentives for Microsoft to limit the availability of CoD on the PlayStation. For example, the newly merged business could make future versions of the game exclusive to the Xbox – total exclusivity. Alternatively, it could adopt a policy of partial exclusivity. For example, it could only make versions of CoD available on the PlayStation that exclude some of its more popular features.
There are costs to Microsoft of implementing a policy of total or partial exclusivity. For example, 76% per cent of PlayStation users who play CoD stated that they would not switch consoles if future versions of the game were made unavailable. By making CoD exclusive to Xbox users, Microsoft would lose revenue from forgoing potential sales of the game to this group of users. The firm may also suffer reputational damage if there was a social media backlash against an exclusivity decision.
However, these costs of implementing a policy of exclusivity could be outweighed by the potential benefits. These include:
- The additional sales of consoles as some users switch from the PlayStation to the Xbox to gain access to CoD.
- the sale of CoD and other games to these additional Xbox users.
To quantify these costs and benefits, the CMA used a financial model that includes information on the amounts of money users typically spend on the Xbox platform and CoD over a five-year period. This ‘lifetime value of customers’ model found that it would be profitable for Microsoft to implement a policy of exclusivity post-merger.
The CMA also noted that in the majority of cases where Microsoft had previously acquired gaming studios, the subsequent release of games had been made exclusive to the Xbox.
Following its analysis of the case, the CMA published its provisional findings on the 8th February 2023. One key finding was that the merger would harm consumers, as it would lead to a substantial lessening of competition in the supply of console gaming services. The CMA argued that the acquisition should proceed only if Activision Blizzard sold off the parts of its business responsible for producing CoD. This is a structural remedy.
Microsoft rejected these findings and argued that the financial modelling used by the CMA was based on inaccurate data. In its formal written response to the competition authority the company argued that:
- The potential gains from a policy of exclusivity had been calculated over a five-year period whereas the costs (i.e. the forgone sales of CoD) had only been calculated over a one-year period. More accurate analysis should compare both the potential gains and losses over a five-year period.
- When more recent data are used to calculate the amounts of money users typically spend on the Xbox platform and CoD over a five-year period, the figure is lower than in the original work by the CMA.
Revised CMA findings
Having adjusted its analysis to take account of these criticisms, the CMA published an update to its Provisional Findings on 24th March 2023. In this update the competition authority stated that:
The analysis now shows that it would not be commercially beneficial to Microsoft to make CoD exclusive to Xbox following the deal, but that Microsoft will instead still have the incentive to continue to make the game available on PlayStation.
Therefore, just six weeks after publishing its Provisional Findings the CMA changed its conclusion and stated that the merger would not result in a substantial lessening of competition in the market for the supply of console gaming services in the UK.
In response to these changes an ex-CMA lawyer stated that:
This is extremely unusual. Restating your provisional findings is something ‘you would rather die than do’.
It is important to remember that the investigation by the CMA also raised concerns about the impact of the acquisition on competition in the cloud gaming market. These concerns remain unaffected by these updated findings and a final report will be published by the CMA at the end of April.
Competition authorities from 16 different countries/regions are also investigating the deal, including the Federal Trade Commission in the USA and the European Commission. It will be interesting to see if these authorities agree on the potential impact of the merger on competition.
- Under what circumstances could a merger result in a substantial lessening of competition?
- Summarise the thresholds that have to be met by a potential merger before it is investigated by the Competition and Markets Authority.
- Explain the direct and indirect network effects that exist in the console gaming market. To what extent do they create barriers to entry?
- Outline some different ways that Microsoft could introduce a policy of partial exclusivity for the Call of Duty franchise of games.
- What would be the impact of a policy of exclusivity on the cross price elasticity of demand between Xbox and PlayStation consoles?
- Outline the difference between behavioural and structural remedies for merger.
- Discuss why the acquisition of Activision by Microsoft might reduce competition in the cloud gaming market.
Late last year I wrote a blog post describing how the UK Competition & Markets Authority (CMA) was looking into Amazon’s investment in online food delivery company Deliveroo. Through this investment Amazon would become a minority shareholder in Deliveroo and be able to participate in the management of the company.
At this time the CMA had completed its initial investigation and decided that it had concerns about the impact the investment would have on competition. Since Amazon and Deliveroo did not then offer any proposal to address these concerns, the CMA referred the case for a full-blown investigation. They were not expected to make a decision until June. However, earlier this month the CMA announced that they would provisionally clear the investment.
This decision is a result of the impact coronavirus pandemic has had on the UK economy. The lockdown in the UK has seen many of the restaurants Deliveroo previously delivered from temporarily shutting down. In response, Deliveroo has significantly expanded the online grocery store delivery part of its business. Despite this, it appears that overall the pandemic has significantly reduced their revenues. This will clearly have a significant impact on gig economy workers who, more generally, are particularly affected by the current circumstances (see the earlier post on this site).
As a result of the pandemic, Deliveroo informed the CMA that they would go out of business without the investment from Amazon. This is very much in line with wider evidence of the impact the pandemic is already having on businesses. The CMA accepted that without additional funding Deliveroo would exit the market and that under the current circumstances it would be very difficult for them to secure an alternative source of funding. Furthermore, they regarded Deliveroo exiting the market as the worst outcome for competition, with Stuart McIntosh, Chair of the inquiry group, stating that:
This could mean that some customers are cut off from online food delivery altogether, with others facing higher prices or a reduction in service quality. Faced with that stark outcome, we feel the best course of action is to provisionally clear Amazon’s investment in Deliveroo.
The unprecedented circumstances created by the coronavirus pandemic provide a clear justification for the approach the CMA has taken. However, in the long-run there may be adverse consequences for competition. For example, the reduction in competition in online grocery store delivery that the CMA originally feared may materialise. In addition, it will be interesting to see whether the effect the pandemic has on Deliveroo’s business makes it more likely that Amazon will look to fully acquire them.
- Distinguishing between the short and long run, how do you think the market would change if Deliveroo were to exit?
- Why do you think it would be difficult for Deliveroo to find alternative sources of funding at the current time?
- What trade-offs would the CMA have had to consider when deciding to clear Amazon’s investment?
The online market for food delivery has grown rapidly grown in recent years. Deliveroo was founded in 2013 and has become one of the most recognised brands in this market. It now has a presence in around 100 towns and cities in the UK. In addition to offering customers restaurant cooked meals delivered straight to their homes, Deliveroo also provides a grocery store delivery service, for example in partnership with the Co-op.
Despite Deliveroo’s strong brand, the market leader in online restaurant delivery is actually Just Eat. Just Eat’s business model is built on it acting as an intermediary between restaurants and consumers who can use Just Eat’s website or app to order take-aways. This is in contrast to Deliveroo which also provides the delivery service. This means that Just Eat’s service is more viable in smaller towns. Deliveroo’s other main rival is Uber Eats.
Having been founded in the UK, Deliveroo has subsequently expanded its operations to around 10 other countries. However, this global expansion resulted in Deliveroo making losses of almost £200m in 2017. In part as a result of these losses, Deliveroo decided to look for new investment and by May 2019 had raised £450m. Deliveroo intends to use this money to fund its continued international expansion and to improve the service it provides. This includes growing its delivery-only kitchens business, which enables it to be less reliant on links with traditional restaurants.
Amazon was one of the big investors in Deliveroo, although the exact amount it invested is unknown. Interestingly, both Amazon and Uber have previously made approaches to buy Deliveroo outright. For Amazon this latest move may be a first step before looking to fully acquire Deliveroo.
Despite this not being a full merger or acquisition, it was still investigated by the UK Competition and Markets Authority (CMA). Its remit allows it also to examine situations where an enterprise gains a ‘material influence over the policy of another’. This was the case with Amazon’s investment which, despite only allowing it to become a minority shareholder, enables it to participate in the management of the company.
Last week the CMA announced that it had completed its initial investigation and that it had concerns about the investment. Andrea Gomes de Silva, CMA Executive Director, stated that:
If the deal were to proceed in its current form, there’s a real risk that it could leave customers, restaurants and grocers facing higher prices and lower quality services as these markets develop. This is because the significant competition which could otherwise exist between Amazon and Deliveroo would be reduced.
The CMA has two specific concerns. Firstly, it is worried that competition in online restaurant delivery will be harmed. Amazon had started competing with Deliveroo in this market in 2016 when it launched Amazon Restaurants. However, it shut this down two years later. The CMA uncovered internal documents from Amazon suggesting that it continued to monitor closely this market. Therefore, the CMA believed that Amazon re-entering the market was a distinct possibility and argued that this would be a substantial boost for competition. The CMA’s concern was that its investment in Deliveroo would make this re-entry less likely.
On the other hand, there is a counterargument to the CMA’s which says that Amazon’s entry through investment, even if only at this time resulting in minority ownership of Deliveroo, could itself boost competition. This is an important trade-off the CMA should take into account.
Secondly, the CMA is worried that Amazon’s investment will also harm competition in online grocery store delivery. Here, Amazon and Deliveroo are two of the leading players in the market. The CMA believes that, as the market grows in the future, competition between the two could intensify. However, the investment in Deliveroo would put this in jeopardy.
At the time of writing, Amazon and Deliveroo have five working days to offer proposals to the CMA to address these competition concerns. It will be interesting to see how they respond to the CMA and whether a full-blown investigation follows. If it does, this may eventually lead to the CMA blocking Amazon’s investment.
POSTSCRIPT: Amazon and Deliveroo did not offer a proposal to address the competition concerns and so on 27th December the CMA referred the case for a full-blown investigation.
To be continued.
- What are the key features of competition in the online market for food delivery?
- What are the pros and cons of Just Eat’s business model in comparison with Deliveroo’s?
- What are the potential advantages Amazon has over the other players in the online market for food delivery?