From the lawyer
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The
Open Markets Institute in Brussels (a non-profit organization on antitrust law) agrees with the CMA and says that behavioural remedies shouldn’t be accepted.
Some hot takes:
- No doubt that the deal is in a hard position right now, among others things because I don’t think that the merger agreement is in favor of these kind of divestments.
- In any case, if they still want to play the behavioural remedy card they have a very small window of opportunity, but it’s not going to be easy.
- They really need a win (the EC) and as soon of possible. The EC agreeing to access remedies could be a good argument to present to the CMA in favor of accepting behavioural remedies. But maybe not even that is going to be enough.
- I just skimmed the PF, but the arguments are quite similar to the ones from Phase 1.
- The CMA still believes in the high performance console market definition and Nintendo is still not part of the video game console market. I mean, they even say that:
“Nintendo does not currently offer CoD, and we have seen no evidence to suggest that its consoles would be technically capable of doing so with a similar quality of gameplay as Xbox or PlayStation in the near future”.
- MS got a nice win with the subscription services definition, now Game Pass is just a different way to pay for games, no its own market.
- I always thought that the Windows - Azure combo was the weak spot of this deal and it definitely was a problem for MS here.
- Very interested to know how the SO from the EC and the PF from the CMA compare. Now that negotiations will formally begin, I guess that more info will start to leak about the SO.
More later if I have time.
Anyway, we are still 2-3 months away from the end