Something else to consider, in the FNZ case Daniel Beard and co beat the CMA so badly that they themselves requested remittal rather than try to fight and admitted they goofed, and look at exactly what they beat the CMA on
Sound familiar? Can this be anymore parallel to the flaws in the CMA argument on cloud gaming? Its like the CMA Cloud argument looking in a mirror…
CMA: “Gee Microsoft, we know the gaming market is worth over $200 billion and we know even with Activision Blizzard you’ll only be in third place revenue wise, but we better block your $70 billion deal and cement Sony and Google status quo because we have to protect the nascent market that makes up less than 1% of the entire gaming market that may potentially be worth a whopping few hundred million $ in 5-7 years from now”
and some people don’t think that Beard, Pannick and Slaughter and May aren’t going to home in on this?
Interesting analysis and I think there is a very fair point here. There is one SLC here to dismantle. The problem is the threshold. What other regulators do is relatively irrelevant but the issue is that should the EU have similar concerns the irrationality test looks a high barrier. No other reasonable person could come to the same conclusion is legally a very high barrier to overcome.
The CAT don’t re hear the case or the merits of arguments so it’s going to come down to demonstrating on paper that you can easily reach that bar and then cover enough of the decisions to have the SLC subsequently thrown out by the CMA - leaving no SLCs to contend with.
I think the CAT would need to lower the ceiling they usually give to the CMA in decision making to materially see this overturned. But I think you make a good point here that there are instances where this has happened it just hasn’t been broad enough to result in an overturning of a decision. In that regard it may be somewhat unprecedented.
To be fair unlike gaming, cloud is definitely something regulators should look into in regards to microsofts market position. Others like google and amazon as well obviously.
I suggest people read this…because its not a reigning in - its the opposite.
For example…
The CMA should focus on:
reinforcing links internationally to address cross-border concerns and ensure effective co-ordination of regulatory action
using its casework, and the world-class analysis that underpins it, to provide strong leadership on global competition and consumer issues particularly in relation to digital markets. This includes influencing other regulators to follow the UK model of proportionate regulation
The CMA should focus on:
preparing for its new role in overseeing the pro-competition regime for digital markets which the DMCC Bill will seek to establish. The CMA should use the significant new powers due to be given to it by the DMCC Bill to responsibly address the barriers to competition in digital markets, supporting innovation, particularly for smaller and challenger firms
continuing to build upon its expertise and evidence on competition issues and dynamic business models in digital markets
Effective coordination of cross border regulation is an example of something they are resistant to currently. Thats probably one of the stronger points toward making the UK friendly to businesses.
Its asking the CMA to act as a lead on international competition issues. To be in effect ‘the big cheese’. Its an incredibly nonsensical UK thing to do. If you read any government paper of this kind it will have the same ambition.
But effectively the key point is they are wanting the CMA to take on more powers, not less, to prioritise digital markets and favour smaller entities and to take their stance and promote it across the worldwide regulators…
Are you seriously then saying that isn’t exactly the thing the CMA have done with this deal? They are taking their steer from government.
But how are they helping small companies in a market where huge investment is needed. I do see this steer more like an advice than a steer or a reminder. This doesn’t sound very positive.
Thats why no matter what, no matter how much the stars may allign for Microsoft, they still have a hell of a fight, not impossible but definitely tough given that this uncharted territory. I imagine even the CMA understands what happens here is going to set precedent
