The EU required that a monitor trustee be assigned before they approved the Microsoft – Activision deal.
In section 896, page 206 of the EU’s decision document on the deal, they state:
“In particular, first, the Commission notes that the Notifying Party cannot close the Transaction before having appointed a Monitoring Trustee.”
As you can see, the European Commission was crystal clear that this was mandatory for the deal to be approved.
As for why they felt it was necessary, they state in section 895 that:
“The Commission considers that the monitoring and dispute resolution provisions set out in the commitments will ensure the effective implementation of and compliance with the Consumer License Commitment and the Streaming Provider License Commitment.”
These other commitments are also laid out in other parts of the decision, but there’s really nothing new here. These are the provisions that requires Microsoft to freely provide cloud gaming licenses for their games to eligible competitors, such as the ones that they already provided to Nvidia, Ubitus, and Boosteroid.
Notably, the EU did do their research on Amazon’s Luna cloud gaming business, and did not make it a requirement that Microsoft reach out to them to make the same deal. Amazon Luna is available under their jurisdiction on Germany, so they may have hypothetically mandated this. It does seem that the EU is content to let Amazon and other such companies pursue action on their own.
On section 898 on page 207, the EU explains this in some detail:
“As for the Streaming Provider License Commitment, the Final Commitments foresee a fast-track dispute resolution procedure in the event that an Eligible Streaming Service (including NVIDIA, Boosteroid and Ubitus), showing a sufficient legitimate interest, claims that Microsoft is failing to comply with its obligations arising from the Commitments.
The dispute resolution procedure can take place in Brussels, Belgium, at the request of the Eligible Streaming Service. The Commission considers that these provisions allow for addressing any disputes between the Notifying Party and streaming providers in a timely manner.”
So, it should be clear that the EU isn’t giving up their commitments or responsibilities when it comes to this case. Rather, they are satisfied with this particular arrangement, that offloads part of the work and time investment monitoring this case to a third party.
Interestingly, the EU also timed the release of this document after they revealed that Evelyn Partners, a wealth management and accountancy firm, would be the monitor trustee to check on Microsoft.
The reasoning for that timing also isn’t quite clear, but may simply be a matter of courtesy on behalf of Evelyn Partners.
The EU’s choices when it came to making their decision aren’t quite as clear cut as we expected when they approved it. It will be interesting to see what else comes out of this document in the coming days.
