Commissioner Margrethe Vestager, in charge of competition policy, said: "In a true Digital Single Market, European consumers should have the right to buy and play video games of their choice regardless of where they live in the EU. Consumers should not be prevented from shopping around between Member States to find the best available deal. Valve and the five PC video game publishers now have the chance to respond to our concerns."
The Commission has addressed Statements of Objections to Valve, owner of the world's largest PC video game distribution platform called “Steam”, and five PC video game publishers, Bandai Namco, Capcom, Focus Home, Koch Media and ZeniMax.
Valve – via Steam – digitally distributes PC video games from each of the five PC video game publishers concerned by the investigation. At the same time, Valve provides "activation keys" to these publishers.
These “activation keys” are required for consumers to play a number of PC video games bought on channels other than Steam, i.e. downloaded or purchased on physical media, such as a DVD. After the purchase of certain PC video games, users need to confirm their "activation key" on Steam to authenticate the game and be able to play it. This system is used for a wide range of games, including sports, simulation and action games.
The Commission's preliminary view is that Valve and the five PC video game publishers entered into bilateral agreements to prevent consumers from purchasing and using PC video games acquired elsewhere than in their country of residence (so-called “geo-blocking”). This is against EU antitrust rules.
In particular, the Commission is concerned that:
- Valve and the five PC video game publishers agreed, in breach of EU antitrust rules, to use geo-blocked activation keys to prevent cross-border sales, including in response to unsolicited consumer requests (so-called “passive sales”) of PC video games from several Member States (i.e. Czechia, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, and in some cases Romania). This may have prevented consumers from buying cheaper games available in other Member States.
- Bandai Namco, Focus Home, Koch Media and ZeniMax, broke EU antitrust rules by including contractual export restrictions in their agreements with a number of distributors other than Valve. These distributors were prevented from selling the relevant PC video games outside the allocated territories, which could cover one or more Member States. These practices may have prevented consumers from purchasing and playing PC video games sold by these distributors either on physical media, such as DVDs or through downloads.
The Commission's preliminary view, outlined in its Statements of Objections, is that these business practices partitioned markets according to national borders and restricted passive sales to consumers. These business practices ultimately denied European consumers the benefits of the EU's Digital Single Market to shop around for the most attractive offer.
If confirmed, this would infringe Article 101 of the Treaty on the Functioning of the European Union, which prohibits anti-competitive agreements. The sending of a Statement of Objections does not prejudge the outcome of the investigation.
The geo-blocking Regulation
The investigations into geo-blocking of PC video games complement Regulation 2018/302 on unjustified geo-blocking, which is applicable throughout the EU since 3 December 2018.
The Regulation prohibits geo-blocking and other geographically-based restrictions which undermine online shopping and cross-border sales by limiting the possibility for consumers and businesses to benefit from the advantages of online commerce. Currently, the Regulation applies to PC video games distributed on CDs, DVDs but not to downloads.
The Commission will carry out a first evaluation of the Regulation by 23 March 2020. In particular, the Commission will assess the scope of the Regulation, including its possible application to certain electronically supplied services which offer copyright-protected content such as music, e-books, software and online games, as well as of services in sectors such as transport and audio-visual.
This investigation is a stand-along procedure, independent of but following up on some of the issues identified in the Commission's competition sector inquiry on e-commerce.
A Statement of Objections is a formal step in Commission investigations into suspected violations of EU antitrust rules. The Commission informs the parties concerned in writing of the objections raised against them. The parties can then examine the documents in the Commission's investigation file, reply in writing and request an oral hearing to present their comments on the case before representatives of the Commission and national competition authorities.
If, after the parties have exercised their rights of defence, the Commission concludes that there is sufficient evidence of an infringement, it can adopt a decision prohibiting the conduct and imposing a fine of up to 10% of a company's annual worldwide turnover.
There is no legal deadline for the Commission to complete antitrust inquiries into anticompetitive conduct. The duration of an antitrust investigation depends on a number of factors, including the complexity of the case, the extent to which the undertaking concerned cooperates with the Commission and the exercise of the rights of defence.
More information on the investigation will be available under the case numbers AT.40413 (Focus Home), AT.40414 (Koch Media), AT.40420 (ZeniMax), AT.40422 (Bandai Namco), and AT.40424 (Capcom) in the public case register on the Commission's competition website.