Report: Microsoft Didn't Mislead Us Over ZeniMax Deal, Says EU In Response To FTC Concerns

Update: Stephen Totilo of Axios has also been in touch with the European Commission today, shedding a bit more light on this story. You can some of the key information in the tweets below:

Totilo goes on to explain that "if you look back at the EU report on the ZeniMax deal, it did state that Microsoft said it 'would not have the incentive to cease or limit making ZeniMax games available for purchase on rival consoles'."

Therefore, he points out that the FTC didn't say "Microsoft broke a promise to keep ZeniMax games exclusive, but that Microsoft gave assurances that it didn’t have an incentive to withhold ZeniMax games from rival platforms."

It's all getting a bit confusing now, huh?

Original story: The European Commission has unexpectedly come to the aid of Microsoft today, clearing up a few facts that the FTC appears to have misunderstood when announcing its attention to file a lawsuit over the Activision Blizzard takeover.

One of the concerns the US Federal Trading Commission has over the deal is that Microsoft supposedly gave assurances to European antitrust authorities that it had "no incentive to withhold games from rival consoles" when acquiring ZeniMax Media (Bethesda) back in early 2021. In their official statement, the FTC pointed to the likes of Starfield and Redfall as breaking these assurances.

FTC: "Microsoft decided to make several of Bethesda's titles including Starfield and Redfall Microsoft exclusives despite assurances it had given to European antitrust authorities that it had no incentive to withhold games from rival consoles."

However, in a new (paywalled) report published by MLex today (and transcribed on ResetEra), the EU commented to the outlet that Microsoft never made any commitments about not releasing Xbox exclusive ZeniMax content:

MLex (via ResetEra): "Microsoft didn't make any 'commitments' to EU regulators not to release Xbox exclusive content following its takeover of ZeniMax Media, the European Commission said."

As pointed out in the report, Microsoft previously told the European Commission that it would honour "ZeniMax’s obligations to continue to make its current games available on other gaming hardware", including two timed PlayStation exclusives in the form of Deathloop and Ghostwire: Tokyo. At the time of the Bethesda acquisition, Microsoft confirmed that it would "not make any existing ZeniMax games exclusive to Xbox".

However, in terms of future games such as Starfield and Redfall, Microsoft stated that it would make decisions about exclusivity "on a case-by-case basis". Here's the full quote:

Microsoft: "Future decisions on whether to distribute ZeniMax games for other consoles will be made on a case-by-case basis, taking into account player demand and sentiment, Microsoft’s strategic and financial goals, and the willingness of third-party gaming hardware providers to run Microsoft games and services."

The European Commission's response today explained that the ZeniMax deal was permitted as it "would not raise competition concerns". According to the report, the reason for this was because even if Xbox made Bethesda's titles exclusive, it wouldn't have a significant impact as rivals wouldn't be denied access to an "essential input".

Despite all of this, the FTC, EU and CMA (in the UK) are all currently putting a lot of attention on Microsoft's attempt acquisition of Activision Blizzard, with the FTC's lawsuit being joined by extensive investigations from the EU and CMA right now. All three have concerns with the deal, but Microsoft is still confident the transaction will go through.

What are your thoughts on this? Tell us down in the comments below.

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