Digital services occupy, to a greater extent, a more important position in the regulations that we are finding. Proof of this are the movements that, for a few months, we have been seeing around the purchase of Activision Blizzard by Microsoft; from the possibility that it is a monopoly for the CMA to the response offered by the American Chamber of Commerce, which suggests the possibility of not respecting European regulations if they continue to block certain operations. This situation may be further complicated by the publication and entry into force of Regulation (EU) 2022/1925 on the digital sector, published last October 12.
End of Sony’s veto of Xbox Game Pass? This says the new Regulation 2022/1925 of the digital sector
1.- What does this Regulation say and why does it affect large companies?
«Article 1
Object and scope of application
1. The purpose of this Regulation is to contribute to the proper functioning of the internal market by establishing Harmonized rules that guarantee all companies, throughout the Union, the fairness and contestability of the markets in the digital sector where there are gatekeepers, for the benefit of professional users and end users«.
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This Regulation is added to all the provisions that exist, to date, that seek to regulate and prevent anti-competitive and anti-consumer practices. And it seeks that all the operators of the digital sector markets, in which there are access guardians, can move with fairness and equality. And this means?
To understand the Regulation, one must know the two basic concepts around which it revolves: «basic platform services” Y “gatekeepers«. The basic platform services are all those that are included in its article 2.2, finding us, among others, online brokerage services, online search engines, video sharing platform services, online social networks, virtual assistants, web browsers, etc. And by “gatekeeper” we mean any company that offers any of these basic platform services. Thus, for example, an online brokerage service would be YouTube and a gatekeeper would be Google, the owner of YouTube.
And you will think «well, according to this Sony is not affected, because it does not fall under any of the previous definitions«. But the truth is that Sony, although it does not offer the same as Microsoft, Google, Apple or Amazon, does have a key service to enter the scope of this Regulation: its Store. And it is that, according to Regulation (EU) 2019/1150 of the European Parliament and of the Council of June 20, 2019 on the promotion of fairness and transparency for professional users of online intermediation services:
“Between the online brokerage services covered by this Regulation include the e-commerce marketplaces, in particular collaborative marketplaces involving professional users, online software application services such as app stores, and online social networking services, regardless of the technology used to provide such services. In this sense, online intermediation services could also be provided by means of voice assistive technology’.
Therefore, given that Sony has a Store, understood as an “electronic commerce market” and that Store falls under online intermediation services, it does offer platform services and can be considered an access gatekeeper.
2.- Sony will stop vetoing the content that reaches Xbox Game Pass. We tell you why.
Once it has been specified that both Sony and Microsoft are affected by Regulation (EU) 2022/1925, we go to the crux of the matter: the Sony veto Xbox Game Pass. As you already know, Sony is not very supportive of the services that Microsoft is offering; in particular, from Xbox Game Pass. Not only has it vetoed the arrival of certain games to the catalog, as was revealed with Resident Evil Village, but the conditions were also leaked to allow the purchase of Activision Blizzard by Microsoft and that they passed by vetoing the arrival of Call of Duty to Xbox GamePass.
But all this may be about to end. And it is that, within the obligations of the access guardians that are detailed in article 5 of the Regulation of Regulation (EU) 2022/1925, the following stands out:
That is to say: the guardian of access (Sony) will refrain from applying obligations (vetoing the arrival of games to Xbox Game Pass, as happened with Resident Evil Village) that prevent professional users (developers) from offering the same products or services to users. end users (players) through third-party online brokerage services (Sony Store) or their own online direct sales channel at prices or conditions that are different (condition of going out on Xbox Game Pass) from those offered through gatekeeper online brokerage services (Sony Store, non-Xbox Game Pass).
And the ban would also go to Microsoft, which could not ban that, for example, Activision Blizzard decided that Call of Duty will have exclusive content for PS5, if it wanted to do so. It is also true that this article does not seem to refer to exclusive games, but to those that are multiplatform and that can be released in different conditions on each console.
At the moment it remains to be seen how this regulation is applied to the Member States of the European Union and if the British or North American competition agencies accept it. And in any case, we will have to wait until May 2, 2023, the date on which the Regulations come into force, to find out more details. But the truth is that, in principle, this Regulation seems to cut short any possibility of continuing vetoing the arrival of games to Xbox Game Pass by Sony. You, what do you think?