Y aqui argumentos mas extensos sobre su decision.........uuufff.
EXCLUSIVITY
The Applicants argue that such a vertical relationship would not entail risks associated with the possibility of closing the upstream and downstream markets, since, even in a hypothetical post-Operation scenario: (i) on the one hand, " [a] Microsoft will not have the capacity or incentives to harm rival consoles by preventing them from accessing Activision Blizzard games "; (ii) on the other, " Microsoft will have no ability or incentive to harm rival publishers of console games by preventing them from accessing the Xbox Store (or other Xbox-specific digital stores) "; and (iii) among all the segmentations considered in this analysis for the relevant vertically related markets, the only market segment in which the market shareof the Applicants would exceed the level of 30% would be the digital distribution of games for consoles.
However, despite what is alleged by the Parties, what is observed in practice is that, in general, the concerns expressed by market agents consulted by SG/Cade regarding the proposed Transaction refer precisely to the vertical integration in question.
It can be seen, therefore, that the concerns raised by the aforementioned players boil down to two main points: (i) if Activision Blizzard games – and especially the titles of the popular Call of Duty series – become exclusive to the Xbox ecosystem ( consoles, digital stores, subscription services) upon completion of the Transaction, such a condition could give Microsoft a considerable competitive advantage over rivals, harming competition in the digital distribution and game console markets; and (ii) with the Transaction, Microsoft would significantly expand the size and variety of its first-party game backlog.(which would include, in addition to games developed by Microsoft's own studios and the recently acquired Zenimax, also the successful franchises from Activision Blizzard), which could reduce its demand for third-party content in its ecosystem - and therefore , reduce distribution channels available to other game publishers.
The information presented above shows that the combined share of the Parties in the upstream market is less than 20% in all scenarios evaluated, not reaching the minimum percentage defined in article 36, § 2 of Law No. 12,529/2011 for the purpose of presumption of possible dominant position.
Therefore, despite the popularity that Microsoft or Activision Blizzard titles may have among the gaming public, the fact is that there is no indication that the Claimants have market power in the electronic game publishing segment, nor that the Transaction could create or strengthen a dominant position on the market in question.
The evolution shown in the tables and graphs presented shows that, although Microsoft has a relevant market share - more precisely, [ 30-40]% [ RESTRICTED ACCESS TO CADE AND APPLICANTS] worldwide and [30-40]% [RESTRICTED ACCESS TO CADE AND APPLICANTS] in Brazil in 2021 –, its share is still lower than that of the leader Sony, which accounts for [50-60]% [RESTRICTED ACCESS TO CADE AND APPLICANTS] of the global market and [ 5 0 -60]% [RESTRICTED ACCESS TO CADE AND APPLICANTS] of the Brazilian market.
Also noteworthy is the fact that, concomitantly with the growth of Nintendo's share in this segment in recent years – possibly motivated by the commercial success of the Nintendo Switch console – Microsoft lost a significant portion of its market share . Indeed, while Nintendo's worldwide market share has increased from [0-10]% [RESTRICTED ACCESS TO CADE AND CLAIMS] in 2017 to [10-20]% [RESTRICTED ACCESS TO CADE AND CLAIMS] in 2021, the Microsoft's share dropped from [40-50]% [RESTRICTED ACCESS TO CADE AND PLAINTIFF] to [ 30-40 ]% [RESTRICTED ACCESS TO CADE AND PLAINTIFF]in the same period. Sony, meanwhile, has seen its market share fluctuate from [ 50-60 ]% [RESTRICTED ACCESS TO CADE AND APPLICANTS] in 2017 to [ 50-60 ]% [RESTRICTED ACCESS TO CADE AND APPLICANTS] in 2021.
In the present case, the closing of the game publishing market would occur in the event that Microsoft has market power and has incentives to acquire content primarily from Activision Blizzard, in order to make it difficult, or even prevent, the access of other game publishers to the its digital game distribution platforms .
More precisely, as pointed out [RESTRICTED ACCESS TO CADE] in its manifestation in the file, there would be a theoretical risk that Microsoft, having enough first-party content in its ecosystem, could reduce its demand for third-party games for its consoles, digital stores and subscription services, and with that, decided to "close" the Xbox ecosystem to third-party content.
As seen earlier, the only downstream market segment in which Microsoft's market share slightly exceeds the 30% threshold - minimum percentage considered for the purpose of presumption of the possibility of closing the market, as defined in article 8, IV of CADE Resolution nº 33/2022 – is the digital distribution of games for consoles , in the world and national scenarios. It can be inferred, in this sense, that the vertical integrations generated by the Transaction do not give rise to the risk of closing the upstream markets for publishing games for PCs and mobile devices , since Microsoft does not hold a dominant position in the downstream markets.relating to the distribution of games to such devices. It follows, therefore, that the present analysis concerns especially the vertical relationship between the publishing and distribution segments of games for consoles.
As popular and commercially successful as Activision Blizzard and Microsoft games may be, both Parties' 2021 sales represented a combined share of approximately [10-20]% [RESTRICTED ACCESS TO CADE] in the worldwide gaming market. publishing games for consoles, and only about [0-10] % [RESTRICTED ACCESS TO CADE] on the national scene. From another angle, it can be seen that almost [90-100]% [RESTRICTED ACCESS TO CADE] of the total revenue generated from the activity of publishing games for consoles in 2021, worldwide, does not refer to the content of the Claimants. So, if Microsoft chose to market only first-party contenton the Xbox Store after the eventual conclusion of the Transaction, or to market third-party content under less favorable conditions than those practiced in other stores/platforms, this would likely imply a drastic reduction in the quantity and variety of games available for Xbox, reducing the attractiveness of the console and its ecosystem to consumers.
Console Exclusivity
On consoles , as already seen, there are currently only three stores that distribute digital game content, each one exclusively linked to a manufacturer/console: (i) the Xbox Store , from Microsoft Xbox; (ii) Sony PlayStation's PlayStation Store ; and (iii) the Nintendo eShop for Nintendo Switch. In the current market context, the only way for a game publisher to digitally distribute its content to users of a given console is through the official store of the respective manufacturer/console. It follows that, in practice, competition in the segment of digital distribution of games for consoles takes place only between different devices (or " interconsoles ")."), so it reflects, to some extent, the competitive dynamics of the console market itself.
In this specific segment, therefore, the possibility of closing the downstream market would occur in the event that Microsoft starts to concentrate the distribution of Activision Blizzard games on the Xbox Store after the Transaction, in order to make difficult, or even prevent, the distribution of these titles on the PlayStation Store and Nintendo eShop – and, of course, as long as such games represent relevant inputs so that Microsoft's rival stores can continue to compete in the market.
In consultation with Nintendo's official website in Brazil, this SG/Cade found that only some games and content from the Crash Bandicoot , Diablo , Overwatch and Tony Hawk's Pro Skater series by Activision Blizzard are for sale on the official Nintendo Switch digital store, not there being a single Call of Duty title available for the platform [SUP][153][/SUP]. The list of best-selling games released on the store itself reveals that, currently, no Activision Blizzard game is among the 92 (ninety-two) best-selling Nintendo Switch titles [SUP][154][/SUP]. Another list available on Wikipedia, which lists the best-selling games for the Nintendo Switch since its launch in 2017, does not mention a single Activision Blizzard game in the rankingof titles that have sold more than 1 million copies on the console.
Taken together, these elements show that the relevance of Activision Blizzard games to the Nintendo Switch and Nintendo eShop is minimal, so their eventual withdrawal from this ecosystem would likely not have any significant impact on Nintendo's game distribution business.
As for Sony, on the other hand, it turns out that all major Activision Blizzard titles for consoles are available on PlayStation, including games in the Call of Duty series . In fact, as informed by the Plaintiffs, Sony is currently responsible for [RESTRICTED ACCESS TO CADE AND PLAINTIFF] of the revenue earned by Activision Blizzard from the sale of games and game content for consoles worldwide, also representing [RESTRICTED ACCESS TO CADE AND THE APPLICANTS] of such sales under the national scenario. It follows, therefore, that Sony is the only playerof the game distribution market for consoles that could, in theory, be harmed by Microsoft's eventual exclusivity over the distribution of Activision Blizzard content.
Despite this, this SG/Cade considers that, in light of the elements available in the records, there is no evidence that Activision Blizzard games actually represent an indispensable asset for Sony's competitive performance in the digital distribution market.
In its response to a letter sent by SG, Sony reported that in the year 2021, Activision Blizzard accounted for [CADE RESTRICTED ACCESS] of total consumer spending on games and add-ons ( "add-ons" ) in the PlayStation ecosystem at the global, and only Call of Duty responded for [CADE RESTRICTED ACCESS] . Such percentages, although they are quite expressive, do not seem to reflect values whose loss could effectively limit the ability of the leading company in the console market to compete in the digital distribution segment, and are certainly not sufficiently representative to the point of, by themselves, characterize Activision Blizzard content as an "essential input" to Sony's business.
Furthermore, as already shown in Table 5, it is observed that no Activision Blizzard game released for the PlayStation 4 was among the 10 best-selling games on the Brazilian PlayStation Store in the last 5 years, despite the company having published several titles for that console between 2017 and 2021 – including, among them, at least five games in the Call of Duty series . It is quite true that the PlayStation Store rankingmay not accurately reflect PlayStation 4 game sales in their entirety, as they do not include games sold on physical media; nevertheless, it is still a reasonable indication that, for most Brazilian users of the console, the Activision Blizzard games catalog is less attractive and relevant than that of other major publishers such as Electronic Arts, Take-Two Interactive, Sony and Ubisoft, which are better positioned on the list.
For all of the foregoing, although it is recognized that an eventual exclusivity over the distribution of Activision Blizzard's content may give Microsoft a competitive advantage, there is no evidence that such an advantage can, by itself, harm the performance of third parties to the point of limit competition in the market for digital distribution of electronic games.
CALL OF DUTY
The information presented seems to corroborate the allegations made by some of the players consulted by SG/Cade throughout the procedural instruction, who cited the Call of Duty franchise as Activision Blizzard's most important asset in the video game market for PC and consoles. So important that, in Sony's understanding, such a franchise could stand out " as a category of games in itself".
As can be seen, no less than 10 of the 20 best-selling games in the US in the last decade are Call of Duty , with 7 titles in the franchise among the top 10. It is also noted that 14 of the 20 games on the list belong to the "first-person shooter" genre, which seems to indicate a certain predilection of the American consumer for this type of game. Although it refers only to the US market, it is possible that the ranking presented is also representative, to some extent, of the preferences of players worldwide, given the relevance of such a country in the global context of the sector. According to estimates by Newzoo, the United States constitutes the [RESTRICTED ACCESS TO CADE AND CLAIMANTS]The largest market in the gaming industry in terms of revenue generation ( [RESTRICTED ACCESS TO CADE AND PLAINTIFF] ), with [RESTRICTED ACCESS TO CADE AND PLAINTIFF] being for the specific console segment.
Despite the undeniable popularity of Call of Duty , the series' dominance in the best-selling video game list is not, in itself, an indication that Activision Blizzard holds a dominant position in the game publishing market. In 2021, as already seen, the company's games catalog earned it, worldwide, a market share of [0-10]% [RESTRICTED ACCESS TO CADE] in the PC games segment and of [0-10] % [RESTRICTED ACCESS TO CADE]in console games – percentages that, although they are quite expressive when compared to the shares held by most competitors, seem insufficient to give Activision Blizzard a leadership position. In Brazil, in turn, the company's share in the game publishing market is even less representative, reaching [0-10] % [RESTRICTED ACCESS TO CADE] on PCs and [0-10] % [RESTRICTED ACCESS TO CADE] on consoles in 2021. In fact, from a Brazilian consumer perspective, Activision Blizzard games for PC and consoles seem to have less relevance than publisher titlescompetitors such as Take-Two Interactive, Electronic Arts, Sony, Tencent and Valve, among others, as evidenced in the offer structures presented in tables 7 and 8 above.
The information presented shows that neither Call of Duty , nor any other Activision Blizzard title for PlayStation 4 appeared on the list of best-selling games on the Brazilian PlayStation Store in the years 2017 to 2021, despite the company having published several games for the console. Sony (the most popular console in Brazil) in the period – among them, at least five titles from the Call of Duty series. Although the rankingof the PlayStation Store may not accurately reflect the sales of games for the PlayStation 4 as a whole, as it does not include games sold on physical media, it still constitutes a reasonable indication that, for the majority of Brazilian users of such console , Activision Blizzard's games catalog is less attractive than that of publishers such as Electronic Arts, Take-Two Interactive, Sony and Ubisoft (whose games are also sold in physical media in Brazil), which are better positioned on the list.
It should also be noted that it is not only in Brazil and other Latin American countries that Call of Duty seems to be less popular and relevant than in the United States, but also in the Japanese market.
Based on all the above, it is possible to observe that the Activision Blizzard catalog, and in particular the Call of Duty series , are very important assets in the general context of the video game industry, being among the most successful games in terms of sales and audience. Nevertheless, this SG/Cade considers that, from the perspective of the Brazilian consumer, Call of Duty represents one among several highly successful game franchises, while Activision Blizzard, although it is among the largest publishers of games for consoles in the national scenario, is not the most relevant among them.
It is also necessary to consider that, as Call of Duty is an "essential" game, as defended by Sony, then the Nintendo Switch would probably not be able to compete effectively in the market, since no title in the franchise was released for the platform ( until the moment). What can be observed, however, is that the Nintendo console has been showing a good sales performance since its launch in 2017, having even surpassed the numbers of the recently launched PlayStation 5 and Xbox Series X|S in 2021, according to estimates.
Furthermore, it is important to bear in mind that the game development and publishing market is quite dispersed and open to innovation, and that consumer tastes and preferences can vary significantly over time. That said, a video game does not necessarily need to have a multi-million budget to obtain recognition and commercial success. As an emblematic example of such a statement, it should be noted that the initial version of the Minecraft game – today [RESTRICTED ACCESS TO CADE AND CLAIMANTS] , usually referred to as the best-selling game of all time – was created and published in a independently by a single developer.
In light of all the above, what can be observed is that, despite the fact that Activision Blizzard is the owner of some of the most popular game franchises today, there is no evidence in the file that the company has market power in the publishing segment. of games, or that their titles can be considered indispensable for the commercial success of a given console or digital game distribution platform – especially from the perspective of the Brazilian consumer, which is what is effectively of interest to the present analysis.
Lo pongo sin traducir porque es mejor citar la fuente original, luego que cada uno lo lea o traduzca como quiera ( en mi caso Deepl). Hay otro tochazo parecido de argumentacion pero redunda en lo mismo..........
EXCLUSIVITY
In Consoles
As can be seen, the tables and graphs presented indicate that Sony is the leading company in the console market both worldwide and nationally, holding in 2021 a much higher share than Microsoft in this segment. It is also noted that, specifically in Brazil, the estimates in table 30 suggest that Sony has achieved market shares of over 60% at least since 2019, evidencing a clear preference of the Brazilian consumer for PlayStation consoles.
Sony's leadership in the console market is not restricted to recent times. In fact, according to data from Statista, PlayStation consoles sold more units worldwide than Xbox consoles in all their generations.
Considering that PlayStation and Xbox consoles traditionally have very similar technical specifications and third-party game catalogs in each iteration, one has to consider why Sony has maintained a consistent leadership in the segment over the years.
According to Microsoft's understanding, the reasons behind such favoritism would be the following: [RESTRICTED ACCESS TO CADE AND APPLICANTS].
Based on all the above, it can be inferred that the game catalog of each console (in terms of quantity, quality and variety) and the loyalty of players to established brands are factors that play, in the consumer decision tree , a more important role than the price and technical specifications of each device.
In the case of the dispute between PlayStation and Xbox – and, more specifically, between PlayStation 5 and Xbox Series X – there is a competition between two consoles that have similar technical specifications, similar prices and access to a set of games. from third-party publishers quite similar. Therefore, this SG/Cade believes that the best historical sales performance of Sony's consoles is probably due to other factors, such as: (i) the exclusive games in the ecosystem; and (ii) brand loyalty.
With the acquisition of a publisher such as Activision Blizzard, and considering the (theoretical) risk of the company's content becoming exclusive to Xbox, it is likely that the eventual conclusion of the Transaction will give Microsoft a considerable competitive advantage in the segment. of consoles. Even so, this SG/Cade does not see that such an advantage represents a risk of closing this market for current competitors. As already seen, Nintendo does not currently rely on any content from Activision Blizzard to compete in the market. In turn, Sony has several predicates - strength of the world's leading brand for more than 20 years, extensive experience in the sector, largest user base, largest installed base of consoles, robust catalog of exclusive games, partnerships with multiple publishers.third-party , brand loyal consumers, etc. – which should contribute to maintaining the competitiveness of PlayStation in a possible post-Operation scenario, even in the face of possible loss of access to Activision Blizzard content.
Furthermore, it is important to highlight that the central objective of CADE's activities is the protection of competition as a means of promoting the well-being of the Brazilian consumer, and not the defense of the particular interests of specific competitors . After all, one cannot lose sight of the fact that the holder of the legal assets protected by Law No. 12,529/2011 is the collectivity, and not the competitor/economic agent as an individual entity. In this sense, although it is recognized that part of PlayStation users may decide to migrate to Xbox in the event that Activision Blizzard games - and especially Call of Duty– become exclusive to the Microsoft ecosystem, SG/Cade does not believe that such a possibility represents, in itself, a risk to competition in the console market as a whole.
NINTENDO
The observation of the table above shows that, while the list of best-selling Nintendo Switch games is dominated by exclusive titles published by Nintendo itself, the lists referring to consoles from Microsoft and Sony are very similar, with most of the games listed appearing simultaneously among the best sellers on Xbox and PlayStation. Exceptions to this rule essentially refer to titles exclusive to each platform, such as the Xbox-exclusive Forza Horizon and Halo series games , and PlayStation-exclusive franchises such as Marvel's Spider Man , Ghost of Tsushima , and Ratchet & Clank.
Indeed, Sony itself claims to consider Xbox as a closer rival to PlayStation than Nintendo's console.
Notwithstanding, although the greater proximity between the hardware manufactured by Sony and Microsoft is recognized in terms of competition, this SG/Cade believes that all game consoles compete with each other in the same market, and that the Nintendo console is capable of exert some competitive pressure on PlayStation and Xbox sales. Despite Sony touting the Switch as " more geared towards kids, family and casual games " than rivals, the fact is that many adults who buy consoles today grew up playing games from popular Nintendo franchises such as Mario , The Legend of Zelda , Pokemon , Donkey Kong and Metroid, so the company's brands and characters appeal strongly to consumers of all ages.
SONY
As noted earlier in this opinion, there are currently very few Activision Blizzard games available for the Nintendo Switch (none of them Call of Duty ), and none of these titles appear to be performing particularly well on the platform. Thus, strictly considering the players that currently operate in the console market, it is noted that Sony would be the only company that could be effectively harmed by an eventual Microsoft exclusivity over the Activision Blizzard catalogue.
In this regard, it is important to note that Phil Spencer, the executive who heads the games division at Microsoft, has already publicly stated that he intends to honor the commitments made by Activision Blizzard with Sony, and even keep the launches of Call of Duty and other titles on the market. PlayStation for "several years" beyond current commitments [SUP][ 187 ][/SUP] . Indeed, [RESTRICTED ACCESS TO CADE AND THE APPLICANTS] [SUP][ 188 ][/SUP] . There is, however, no [RESTRICTED ACCESS TO CADE AND THE APPLICANTS] to date
Despite the above, the fact is that, if the Transaction is concluded, the future of Activision Blizzard content on Sony consoles would be uncertain after the lapse of the "several years" mentioned by the CEO of Microsoft Gaming; and, even before that deadline, one cannot rule out the possibility of Microsoft changing the understanding expressed in the aforementioned "public commitment", starting to adopt a different commercial strategy in relation to its biggest rival. Therefore, conservatively, this SG/Cade understands that the analysis of the competitive effects of the Operation must consider the possibility of all Activision Blizzard games becoming exclusive to the Microsoft ecosystem (Xbox consoles, Windows OS, digital stores and subscription services) , despite any claim by the company to the contrary.
It can be seen, in this sense, that Activision Blizzard and Call of Duty represented a portion of the revenue earned by Sony from the sale of game content on PlayStation in 2021 that should not be disregarded. However, the reported percentages do not seem to reflect values whose loss could effectively limit the market leader's ability to continue to compete in the console segment; furthermore, they are not sufficiently representative to the point of characterizing Activision Blizzard's content as an "essential input" to Sony's business.
If on the one hand Activision Blizzard content proves to be important for PlayStation, there are indications that PlayStation [RESTRICTED ACCESS TO CADE] for Activision Blizzard content.
Considering the huge popularity of Call of Duty , it is reasonable to infer that if Activision Blizzard games were no longer available on Sony consoles, PlayStation users could decide to migrate to Xbox, or even a PC, to continue having access to franchise games. On the other hand, it's also reasonable to assume that if upcoming Call of Duty games became exclusive to the Microsoft ecosystem, players loyal to the PlayStation brand could simply abandon the series, migrating their demand to other games available on their favorite console.
This SG/Cade believes that the fact that Call of Duty has traditionally been a cross-platform game series has a significant influence on the number of users and the sales performance of the franchise. After all, it is a logical inference that the greater the number of hardware platforms on which a given game is playable, the greater the base of potential users and purchasers of that game. Given this context, it is likely that, at least in the short term, Call of Dutywould lose a significant amount of revenue and players if its games were no longer offered to users of the most popular console in the world. In fact, such a hypothetical scenario could not only negatively impact the franchise's numbers, but also favor other multiplatform games similar to Call of Duty that remain on PlayStation, such as competing series such as Battlefield (EA) and Tom Clancy's Rainbow Six (Ubisoft).
Conclusions about exclusivity
Specifically regarding the possibility of closing the game publishing market (upstream), it was found that, despite Microsoft having control of a relevant portion of the console and digital game distribution markets (downstream), the company would not have incentives to make it difficult for publishers competing with Activision Blizzard to access its platforms, as this would necessarily imply a reduction, in quantity and variety, of the catalog of games available in the Xbox ecosystem, making the company's products and services less attractive to consumers
With regard to the possibility of closing downstream markets , the analysis pointed out that, despite their relevance and popularity, Activision Blizzard games – and in particular the Call of Duty series– would not be essential assets to the performance of Microsoft's current and potential competitors in the console and digital game distribution markets (considering, in the latter, both digital stores and multiple game subscription services for PC and consoles). Thus, even if the Activision Blizzard game catalog were to become exclusive to the Microsoft ecosystem after the Transaction, SG/Cade considers that such exclusivity would not result in a substantial reduction in the levels of competition in the downstream markets, even if it could translate into a competitive advantage for Microsoft.
Finally, in relation to the existing complementarity between the activities of Microsoft and Activision Blizzard in the game publishing markets - and especially in the mobile games segment - and online advertising, it was found that the shares held by the Parties in these segments, in all scenarios examined, they are well below the minimum percentage considered for the purpose of presumption of the possibility of closing the market.
Y mas tochazo, ésto sobre los servicios de suscripcion y la nube.
Specifically in relation to the Xbox Game Pass subscription service , it is noted that the catalog of games currently available on the service includes, in addition to games published by Microsoft itself (including games by Zenimax), also AAA titles from other relevant publishers such as SEGA, Square Enix, Take-Two and Ubisoft, as well as dozens of indie games [SUP][148][/SUP] developed by smaller studios (including Brazilian ones). In addition, some Game Passsubscription plans even include a subscription to the EA Play service , allowing users of Microsoft's service to also have access to dozens of Electronic Arts games in a single package.
While it is envisaged that the eventual inclusion of Activision Blizzard's extensive back catalog on Xbox Game Pass could in fact reduce Microsoft's demand for third-party content for the service, it doesn't seem likely that the company will stop offering third-party games to its subscribers after the operation. Any decision in this regard would be inconsistent with Microsoft's recent strategy, which has increasingly invested in expanding the offer of games on Game Pass for console and PC users, with the aim of making the service more attractive to consumers in both hardware – and probably also with the objective of migrating from a business model based on the single sale of productsto a model based on services/subscriptions , in line with the strategy adopted by the company in the commercialization of its software (the Office package, for example [SUP][150][/SUP] ). In fact, Microsoft points to strengthening Xbox Game Pass [RESTRICTED ACCESS TO CADE AND CLAIMANTS].
In any case, even if Microsoft decided to make the Xbox Game Pass subscription service exclusive to first-party content – which would most likely reduce its attractiveness to current and potential consumers – publishers competing with the Claimants would still have other channels available. distribution channels to make their games for consoles reach the final consumer, such as digital stores ( PlayStation Store , Nintendo eShop and the Xbox Store itself ), competing subscription services (in consoles, basically PlayStation Plus ) or even the distribution of physical media games.
In short, what happens is that, despite the fact that Microsoft has control of a significant portion of the market for distributing games for consoles, the company would not have greater incentives to stop selling third-party games in the Xbox ecosystem, having in view of the fact that, for that, it would have to give up approximately [RESTRICTED ACCESS TO CADE AND THE APPLICANTS] .
Thus, it is observed that such an attitude would necessarily imply a reduction, in quantity and variety, of the games available on their platforms, which could make them less attractive to players. This decrease in the games catalog could motivate a relevant part of consumers to divert their demand to hardware competing with Xbox, contributing to further consolidate Sony PlayStation's leadership in the console market.
It can be said that, in the current scenario, Microsoft's Game Pass seems to be the most comprehensive service among those available on the market, since: (i) it offers a wide catalog of games to its subscribers, including from Microsoft's own AAA titles and from other publishers to recent indie game releases ; (ii) is available to both Xbox console users and PC users – unlike the competitor PlayStation Plus , which can only be accessed by users of PlayStation consoles; (iii) allows subscribers to access games from its catalog both via download and via cloud streaming , in its most complete subscription plan – unlike cloud gaming servicessuch as Amazon Luna and Google Stadia , which only allow access to their platform's games via Internet streaming . In addition, Game Pass makes available to its subscribers, in some subscription modalities, also an EA Play subscription , allowing the user to gain access to content from Microsoft and Electronic Arts services in a single package.
The latest Activision Blizzard games are currently not available on any multi-game subscription or cloud gaming subscription services . However, Microsoft executives have already publicly stated that they intend to bring franchises such as Call of Duty and Diablo to Game Pass if the Transaction is approved by regulatory bodies [SUP][157][/SUP] ; in addition, the Applicants state that the company [RESTRICTED ACCESS TO CADE AND THE APPLICANTS] . In this regard, it is reasonable to assume that, if the Operation is completed, the Activision Blizzard catalog will likely not be made available to Game Pass competitors .
With the eventual addition of several popular Activision Blizzard titles to the already robust Game Passcatalog of games , it's quite likely that Microsoft's subscription service would come to hold a significant competitive advantage over its rivals. It must be asked, however, whether such an advantage would be sufficient to, by itself, promote a substantial reduction in competition in the segment, to the point of justifying an intervention by the antitrust authority.
In this regard, it should be noted that, despite the relevance of Microsoft's and Activision Blizzard's game portfolios in terms of quantity, quality, variety and popularity, the estimates presented by the Applicants indicate that their combined share in the game publishing market would be approximately [0-10]% [CADE RESTRICTED ACCESS] on PCs and [10-20]% [CADE RESTRICTED ACCESS] on consoles worldwide; and [0-10]% [RESTRICTED ACCESS TO CADE] on PCs and [0-10]% [RESTRICTED ACCESS TO CADE]on consoles, on the national scene. Thus, it can be inferred that, despite the concentration generated by the Operation, there is still a considerable universe of games that could be explored by current and potential Game Pass competitors.
CLOUD GAMING
The various game subscription services offered on the market are relatively recent, and differ significantly from each other in terms of scope and scope. There are services offered by publishers/developers that include access to games from their catalog on PCs and/or consoles, such as EA Play , by Electronic Arts, and Ubisoft+ , by Ubisoft; others, offered by game hardware manufacturers , allow subscribers to play online with other players and access a catalog of downloadable games on their respective platforms, such as Sony's PlayStation Plus and Xbox Game Pass "Console" subscription . There are also cloud gaming subscription services, or "cloud games", which allow the user to play games via streaming on any device with a screen (such as televisions, smartphones and tablets , among others) connected to the Internet, through a browser or application. In this type of service, game processing is done on remote servers and not on the hardware used by the player, thus allowing subscribers to have access to current games even without having a dedicated console or state-of-the-art PC. Services such as Xbox Cloud Gaming (available through the Xbox Game Pass"Ultimate" subscription ), Amazon Luna and Google Stadia fall into this category., the last two still unavailable in Brazil.
FEEDBACK FROM THIRD PARTIES
It should also be noted that some of the companies consulted during the procedural instruction, such as Sony, Ubisoft and Warner Bros. (South), Inc. ("Warner") [SUP][94][/SUP] , also presented their own estimates regarding the total size of some of their markets, and the sources indicated by these companies – basically, data and reports from specialized consultancies such as [RESTRICTED ACCESS TO CADE] – were quite similar (or even identical) to those mentioned in the Methodology Annex. In this sense, it is noted that the estimates presented by the Parties are based on data and reports from sources perceived as reliable by other relevant players in the video game industry.
During the market investigation carried out within the scope of this AC, SG/Cade asked the official agents to inform if, in their perception, there would be any Activision Blizzard title that did not have close competitors in the market - considering themselves, as "close competitors" , games of the same genre (action, adventure, racing, RPG, first-person shooter, etc.), available on the same platform (PC, consoles, mobile devices), aimed at the same gaming audience (children, adults, casual, hardcore , etc.) and developed based on similar production values and technical specifications. In response to this questioning, most of the companies consulted signaled that Activision Blizzard games would face rivalry from similar competitors across all platforms.hardware , with Ubisoft having categorically stated that " there is no such video game title that does not have close competition" , as "every publisher and every game competes for available playtime, and no title is alone in its genre of game".
EXCLUSIVITY
The Applicants argue that such a vertical relationship would not entail risks associated with the possibility of closing the upstream and downstream markets, since, even in a hypothetical post-Operation scenario: (i) on the one hand, " [a] Microsoft will not have the capacity or incentives to harm rival consoles by preventing them from accessing Activision Blizzard games "; (ii) on the other, " Microsoft will have no ability or incentive to harm rival publishers of console games by preventing them from accessing the Xbox Store (or other Xbox-specific digital stores) "; and (iii) among all the segmentations considered in this analysis for the relevant vertically related markets, the only market segment in which the market shareof the Applicants would exceed the level of 30% would be the digital distribution of games for consoles.
However, despite what is alleged by the Parties, what is observed in practice is that, in general, the concerns expressed by market agents consulted by SG/Cade regarding the proposed Transaction refer precisely to the vertical integration in question.
It can be seen, therefore, that the concerns raised by the aforementioned players boil down to two main points: (i) if Activision Blizzard games – and especially the titles of the popular Call of Duty series – become exclusive to the Xbox ecosystem ( consoles, digital stores, subscription services) upon completion of the Transaction, such a condition could give Microsoft a considerable competitive advantage over rivals, harming competition in the digital distribution and game console markets; and (ii) with the Transaction, Microsoft would significantly expand the size and variety of its first-party game backlog.(which would include, in addition to games developed by Microsoft's own studios and the recently acquired Zenimax, also the successful franchises from Activision Blizzard), which could reduce its demand for third-party content in its ecosystem - and therefore , reduce distribution channels available to other game publishers.
The information presented above shows that the combined share of the Parties in the upstream market is less than 20% in all scenarios evaluated, not reaching the minimum percentage defined in article 36, § 2 of Law No. 12,529/2011 for the purpose of presumption of possible dominant position.
Therefore, despite the popularity that Microsoft or Activision Blizzard titles may have among the gaming public, the fact is that there is no indication that the Claimants have market power in the electronic game publishing segment, nor that the Transaction could create or strengthen a dominant position on the market in question.
The evolution shown in the tables and graphs presented shows that, although Microsoft has a relevant market share - more precisely, [ 30-40]% [ RESTRICTED ACCESS TO CADE AND APPLICANTS] worldwide and [30-40]% [RESTRICTED ACCESS TO CADE AND APPLICANTS] in Brazil in 2021 –, its share is still lower than that of the leader Sony, which accounts for [50-60]% [RESTRICTED ACCESS TO CADE AND APPLICANTS] of the global market and [ 5 0 -60]% [RESTRICTED ACCESS TO CADE AND APPLICANTS] of the Brazilian market.
Also noteworthy is the fact that, concomitantly with the growth of Nintendo's share in this segment in recent years – possibly motivated by the commercial success of the Nintendo Switch console – Microsoft lost a significant portion of its market share . Indeed, while Nintendo's worldwide market share has increased from [0-10]% [RESTRICTED ACCESS TO CADE AND CLAIMS] in 2017 to [10-20]% [RESTRICTED ACCESS TO CADE AND CLAIMS] in 2021, the Microsoft's share dropped from [40-50]% [RESTRICTED ACCESS TO CADE AND PLAINTIFF] to [ 30-40 ]% [RESTRICTED ACCESS TO CADE AND PLAINTIFF]in the same period. Sony, meanwhile, has seen its market share fluctuate from [ 50-60 ]% [RESTRICTED ACCESS TO CADE AND APPLICANTS] in 2017 to [ 50-60 ]% [RESTRICTED ACCESS TO CADE AND APPLICANTS] in 2021.
In the present case, the closing of the game publishing market would occur in the event that Microsoft has market power and has incentives to acquire content primarily from Activision Blizzard, in order to make it difficult, or even prevent, the access of other game publishers to the its digital game distribution platforms .
More precisely, as pointed out [RESTRICTED ACCESS TO CADE] in its manifestation in the file, there would be a theoretical risk that Microsoft, having enough first-party content in its ecosystem, could reduce its demand for third-party games for its consoles, digital stores and subscription services, and with that, decided to "close" the Xbox ecosystem to third-party content.
As seen earlier, the only downstream market segment in which Microsoft's market share slightly exceeds the 30% threshold - minimum percentage considered for the purpose of presumption of the possibility of closing the market, as defined in article 8, IV of CADE Resolution nº 33/2022 – is the digital distribution of games for consoles , in the world and national scenarios. It can be inferred, in this sense, that the vertical integrations generated by the Transaction do not give rise to the risk of closing the upstream markets for publishing games for PCs and mobile devices , since Microsoft does not hold a dominant position in the downstream markets.relating to the distribution of games to such devices. It follows, therefore, that the present analysis concerns especially the vertical relationship between the publishing and distribution segments of games for consoles.
As popular and commercially successful as Activision Blizzard and Microsoft games may be, both Parties' 2021 sales represented a combined share of approximately [10-20]% [RESTRICTED ACCESS TO CADE] in the worldwide gaming market. publishing games for consoles, and only about [0-10] % [RESTRICTED ACCESS TO CADE] on the national scene. From another angle, it can be seen that almost [90-100]% [RESTRICTED ACCESS TO CADE] of the total revenue generated from the activity of publishing games for consoles in 2021, worldwide, does not refer to the content of the Claimants. So, if Microsoft chose to market only first-party contenton the Xbox Store after the eventual conclusion of the Transaction, or to market third-party content under less favorable conditions than those practiced in other stores/platforms, this would likely imply a drastic reduction in the quantity and variety of games available for Xbox, reducing the attractiveness of the console and its ecosystem to consumers.
), y más juegos que vayan a salir en el futuro pues... 
