European Commission invites business to input on a "comprehensive and ambitious" review of its Merger Guidelines

The European Commission has launched a public consultation of its Horizontal and Non-Horizontal Merger Guidelines. Framed as a "comprehensive and ambitious" review, the Commission is exploring how to incorporate wider policy goals, including innovation, resilience, investment, digitisation and sustainability. The Commission is also considering whether to adopt stricter "indicators" or even "rebuttable presumptions" to more easily identify mergers harmful to competition. The consultation covers the entire basic architecture of EU merger control review, and opens up the possibility to incorporate a range of non-price considerations. It acknowledges the need for a reflection on whether merger control policy should adapt its approach to support companies to scale up in global markets, while safeguarding a level playing field. The consultation represents an important opportunity for business to help shape the future of EU merger control.

Highly-anticipated overhaul of guidelines

The proposed revision of the Merger Guidelines follows the Draghi report (see here our client alert), which urged the Commission to increase the competitiveness of European companies by strengthening their ability to invest and innovate. The Draghi report recommended changes to the Merger Guidelines to “explain what evidence merging parties can present to prove that their merger increases the ability and incentive to innovate, allowing for an 'innovation defence'". 

Commission President von der Leyen endorsed the Draghi report and directed Competition Commissioner, Teresa Ribera, to modernise EU competition policy to ensure it supports European companies to innovate, compete and lead world-wide. 

The Commission has launched two parallel public consultations: 

•    A General Consultation seeking to receive high-level feedback from the general public; and 
•    An In-Depth Consultation, seeking feedback from stakeholders with technical merger control expertise on the following seven topics: (1) competitiveness and resilience; (2) assessing market power; (3) innovation and other dynamic elements; (4) sustainability and clean technologies; (5) digitalisation; (6) efficiencies and (7) public policy, security and labour market considerations. For each topic, the Commission provides a focus paper with a description and technical background followed by questions.

In parallel, the Commission has issued a call for tender for an economic study on the dynamic impacts of mergers, the findings of which will be taken into account for the design of the revised Merger Guidelines. 

The deadline for response to the public consultations is 3 September 2025. Before finalising the revised Guidelines, the Commission intends to run a stakeholders' workshop and to issue a draft of the proposed revised Guidelines for comments. The finalisation of the review is foreseen for Q4 2027. A group of members of the EU Parliament have called for the Commission to speed up its review (see their letter here). 

The Commission's "holistic review" (consulting on both horizontal and non-horizontal Guidelines simultaneously) may indicate that the Commission is considering combining the two sets of Guidelines into a single text. 

The consultation is very broad, covering topics from the basic building blocks of the Commission's merger review to a range of non-price considerations, which so far have been outside the traditional focus of merger control review. 

Focus Paper A: Competitiveness and resilience

While the Commission emphasises the importance of rigorous merger control enforcement to competitiveness, it points to the need for a reflection on whether, in order to keep pace with global technological advancements, merger control policy must adapt its approach "with a view to support start-ups, scale-ups and medium-sized companies to scale up in global markets", notably, however, "while safeguarding a level-playing field in the Single Market".

Paper A notes, rather expectedly, that merger control should not prevent companies from acquiring scale by combining complementary products, offers or technologies that result in positive synergies or from seeking access to new geographies. In this context, the Commission refers to four unconditional approvals that it has issued in relation to cross-border deals in the telecoms sector, and to one clearance for a transaction in services/products for semiconductor manufacturers. It also acknowledges that some markets are global, and that the role of imports into Europe and “changing geographic market dynamics” need to be reflected in the competitive assessment. 

Importantly, the Commission acknowledges that productivity "tends to increase with scale", that mergers may help firms become more productive and that scaling up may result in a range of benefits, such as "lower costs, better access to capital markets or R&D&I capabilities that increase [the merging companies' ability] to invest and innovate". Paper A also cites the Draghi report, noting that the "EU must make substantial investments in essential infrastructure, including for telecommunications, connectivity, and the energy grid" to enhance its competitiveness. 

Nonetheless, Paper A also voices significant scepticism against accumulating market power, noting that it could damage "other companies in the value chain", stressing that "company size does not typically reflect the ability to invest and innovate" and that "the acquisition of nascent competitors by large established players to protect their market power (so-called "killer acquisitions") might harm innovation". The Commission also stresses, much in line with its previous stance, that competition is key to "driving investment and innovation".

Finally, Paper A notes the importance of mergers and vertical integration for creating resilient value chains, acknowledging that vertical integration may be the way to secure important inputs from outside the EU needed for European companies to compete effectively. However, as in the case of the other topics dealt with in the consultation, the Commission also notes that vertical integration can create significant risks to competition.

The consultation asks questions relating to the following topics:

• Productiveness and competitiveness
• Scaling up, e.g.:
  • What benefits can scale bring to competitiveness, and what are the characteristics of markets where scale is necessary to compete effectively?
  • What are the conditions where scale (bringing benefits but creating or strengthening market power) can be achieved only through a merger, rather than through other means such as organic growth or cooperation?
• Resilience and value chains, e.g.:
  • How could the revised Guidelines contribute to the security for supply and resilience of the EU economy against outside shocks and dependency on non-EU country products?
• Enhancing investment and innovation, e.g.:
  • How can mergers increase innovation or boost competition through increased investment?
• Merger control and globalisation, e.g.:
  • What benefits can companies in Europe enjoy by having a global presence (e.g. less regulation in non-EU markets, lower costs outside Europe, or lower environmental or social standards)? 

Focus paper B: Assessing market power using structural features and other market indicators 

The Commission asks for comments on the entire basic architecture of its merger review, querying whether the current structural indicators/market features (market shares and concentration levels) and/or the frameworks to assess coordination and foreclosure theories of harm should be substantially revised. Nonetheless, the tone of Paper B does not suggest we should expect a major overhaul in the current thinking. Paper B starts by stressing that "EU citizens care deeply about prices that are fair and affordable" and makes clear that the focus on market structure and short-term impact that mergers may have on pricing will continue to dictate the outcome of merger control reviews.

The Commission notes that the current Horizontal and Non-horizontal Merger Guidelines contain structural indicators relating to market shares and concentration levels, establishing "safe harbours" for mergers that are unlikely to give rise to competition concerns. There is also the presumption of dominance (when the merged company’s share exceeds 50%). The Commission suggests (in line with the approach that has been taken in the US) considering whether to adopt stricter "indicators" or even "rebuttable presumptions" to more easily identify mergers harmful to competition. In this case, the burden would be shifted to the merging parties to provide "particularly strong evidence showing that the transaction in question does not lead to anticompetitive effects despite certain indicators supporting the existence of likely anticompetitive effects". Currently, the burden is always on the Commission to produce evidence involving other qualitative and quantitative elements to demonstrate anticompetitive effects, and when the merger falls within a "safe harbour" the Commission must produce "particularly compelling" evidence. 

The Commission's intention also appears to be to reflected in the new guideline changes in the CJEU case law (including, in particular, the CK Telecoms  judgment), as well the new theories of harm that the Commission has been advancing more recently. Specifically, the new guidelines will reflect "a more comprehensive framework that relies on alternative approaches to assessing market power", including factors such as shares of sales, capacity shares, the distribution of spare capacities or a firm’s pivotality, profit margins, as well as diversion ratios and other aspects used to assess closeness of competition, and to identify mergers that would result in the elimination of an important competitive force.

The Commission proposes to refresh the test used to assess so-called coordinated effects, as well as the 'foreclosure' framework used in assessing vertical mergers.

The consultation asks specific questions on whether the current Guidelines provide the correct guidance with regards to structural indicators/market features as well as the frameworks to assess coordination and foreclosure theories of harm. The Commission also asks how the Guidelines should be revised, in particular whether there should be legal presumptions. 

Focus Paper C: Innovation and other dynamic elements in merger control 

The Commission notes that mergers can impact innovation competition in both directions: "they may increase the ability of the merged firm to innovate but also harm innovation competition and thus the incentives to invest in R&D". Additionally, it specifically highlights the potential harm to consumers when potential or existing competition is eliminated through a merger, such as the acquisition of a potential competitor with a promising product in development. The Commission therefore considers that any revised framework should enable a thorough evaluation of both the positive and negative effects that mergers may have on innovation.

Paper C also comments on challenges related to making long-term predictions that are inherent in the forward-looking analysis and, in particular, in the assessment of long-term dynamic effects. The Commission notes in that regard that, in line with settled case law of the CJEU, it has a margin of discretion in making such analysis and refers to the CK Telecoms case. In this case, the Court ruled that the standard of proof that the Commission must meet to establish a significant impediment to effective competition ("SIEC") in merger cases is that it is 'more likely than not' that the merger would have anti-competitive effects, and that this standard must be met by means of a sufficiently cogent and consistent body of evidence. The Commission also comments on the importance of the counterfactual, acknowledging that financial difficulties faced by the target firm may be considered as part of the counterfactual (even outside the strict framework of the "failing firm defence"). 

The consultation seeks input on:

• A more comprehensive framework for innovation and investments. This shall include, e.g.:
  • assessing how mergers impact innovation and investments;
  • identifying relevant evidence and metrics that should be used in a merger assessment.
  • determining when eliminating a "small but particularly innovative player" could harm competition; and
  • evaluating the potential harm to competition from eliminating a potential competitor likely to enter the market or one that is already exerting competitive pressure.
• Counterfactual assessment (i.e. the market situation without the merger) and failing firm defence, e.g.:
  • how the Commission should conduct counterfactual assessments;
  • how to deal with company decisions/market developments that happened after the announcement of the deal but may have been influenced by the deal's perspective; and
  • addressing scenarios involving short-term market shocks, acquisitions of firms in financial difficulty, and declining markets.
• Evaluation of the appropriate timeframe, e.g.
  • determining the suitable timeframe for assessing acquisition impacts;
  • how and under what circumstances to consider long investment cycles; and
  • considering the influence of long-term trends and developments (e.g. AI).

Focus Paper D: Sustainability and clean technologies 

The Commission states that merger control has a "role to play" in allowing procompetitive mergers that have the potential to deliver on and/or support climate and sustainability objectives. On the flipside, it states that merger control has a role to ensure that mergers bearing negative effects on competition and clean innovation, also impacting sustainability goals, do not materialise. 

The Commission notes that 'green efficiencies' could offset negative effects on competition. This could signal a potential loosening of the Commission's previous strict stance on the 'efficiency defence'.  The European Commission is seeking feedback on the methods and parameters for evaluating green efficiencies.

More specifically, the consultation invites feedback on:

• How the revised Guidelines could better reflect changes related to the green transition, e.g.:
  • How the Commission can factor in sustainability as a parameter of competition in the assessment of merger's effects.
  • What type of harm a merger can do when it comes to the development and supply of clean products?
  • What benefits mergers can bring to the green transition, how to assess them and how to check that they are not "greenwashing" claims.
  • How to consider the ability and incentives to invest and develop clean products/technologies.
  • How to assess whether benefits cannot be achieved through less harmful means (e.g. cooperation agreements).
  • Specific examples of cases where mergers that would boost clean investments or innovation have not been pursued due to concerns about merger control scrutiny. 

Focus Paper E: Digitalisation 

The Commission notes that an extended forward-looking assessment may be required to capture the effects of a transaction in markets shaped by digitalisation, particularly where there is an acquisition of a nascent player, or the transaction takes place in a nascent market. It states that in fast-moving markets, "killer acquisitions" of complements require a careful assessment, because in such markets a complementary product or player of today may very quickly become a competitor. 

The Commission notes that certain digital mergers may raise privacy and data protection concerns, e.g. when a transaction leads to the acquisition of data or the combination of datasets. It notes that:

• competition to gain customers based on companies' privacy settings can be considered as a non-price parameter of competition;
• the acquisition of a target marketing itself as prioritising customer data protection could reduce consumer choice for privacy-focused services;
• privacy concerns can be relevant to the credibility of alternative suppliers, e.g. if customers do not find it feasible to work with suppliers processing data in servers outside the EU; and
• the question is whether the privacy and data protection objectives enshrined in EU law play enough of a role in the market to be taken into account as a parameter of the Commission's competitive assessment. 

The Commission invites a broad reflection, including on how the revised guidelines should reflect winner-takes-most dynamics, network effects & ecosystems, privacy/data protection concerns and interoperability. It asks for views on how to assess the effects of digital mergers and assessment timeframes. 

Focus Paper F: Efficiencies

The Commission is seeking input on how the revised Guidelines should address merger efficiencies. The Commission refers to the criteria it uses to assess efficiencies, which set a very high threshold to prevail with the efficiency defence. Indeed, efficiencies have been rarely accepted and there has been no case in which the Commission found a significant impediment to effective competition (SIEC) but cleared the case in view of the efficiencies generated by the transaction. The burden of showing efficiencies is always on the parties and the Commission notes that, to prevail on the efficiencies defence, the notifying parties must demonstrate that the claimed efficiencies are merger-specific, likely to be realised and to counteract any adverse effects of the merger. The Commission notes, in particular, that it will only accept efficiencies that are merger-specific, i.e. meaning that their benefits could not be achieved in a less "harmful" way, for example through a cooperation agreement. Moreover, efficiencies must be "timely". The Commission suggests that it will give lesser weight to efficiencies that will materialise later in the future. The Commission appears to be of the view that the exact same test should apply to efficiency claims related to the more dynamic effects of the merger, such as the emergence of "new 'green' products, technology or innovation that result in improved sustainability". 

Specifically, the Commission is requesting feedback on the following topics:

• Benefit to consumers, e.g.:
  • What metrics and evidence should the Commission use to assess if cost efficiencies benefit consumers?
  • What types of transactions may produce these benefits?
• Merger-specificity, e.g.:
  • Assessing whether the efficiencies cannot be achieved by less anticompetitive or non-concentrative alternatives.
• Verifiability, e.g.:
  • How to identify and quantify non-price merger efficiencies.
  • What evidence should be considered to verify efficiencies? 

Focus Paper G: Public policy, security and labour market considerations

Paper G focuses on the public policy and public security considerations that sometimes are relevant in merger control review. The Commission suggests that objectives of such policies are generally aligned with robust merger control enforcement. It notes that "vibrant competition" contributes to other policy objectives and that strict merger control enforcement helps to "maintain a balance of public and private power, supports media plurality, fosters a competitive defence industrial ecosystem, and by promoting the competitiveness of businesses in the EU contributes to the availability of quality jobs for Europeans". 

The Commission also suggests that impact of the merger on the employment market can be subject to merger control reviews and sets out a potential framework for assessing such effects, which would focus on increased buyer power in the labour markets. Paper G, however, sets a strict limit to the Commission's intervention, noting that job losses due to restructuring and offshoring "are not the result of a change in market power and not covered by the EU Merger Regulation".

The questions cover the following areas:

• Security and Defence, e.g.:
  • How the revised Guidelines should better align with the Commission's assessment of security interests under Article 21(4) EUMR.
  • What parameters may be relevant when assessing the impact of mergers that involve markets for dual-use goods or services.
• Media Plurality, e.g.:
  • How the revised Guidelines should address the issue of democracy and media plurality.
  • Identify the sectors in which the competitive impact of a merger on democracy/media plurality is most likely to be highest.
• Labour markets, e.g.:
  • How the revised Guidelines should address the impact of mergers on wages and working conditions through increased buyer power in labour markets.
  • What theory of harm the Commission could consider.

Future direction

As the EU Competition Commissioner Teresa Ribera emphasised in her statement  accompanying the announcement of the consultation, the Commission is preparing for "a comprehensive and ambitious review" of its framework for assessing impact of mergers on competition. The consultation questions are wide-ranging and are being driven by the EU’s broader policy objectives. 

It remains to be seen whether the Commission will eventually opt for a major change in its framework for assessing mergers, or rather for a codification of its existing practice. On the one hand, the consultation suggests that the Commission may be more open to recognising positive impact that a merger may have on innovation, or to consider a broader range of efficiencies, including green efficiencies or improvements to resilience. On the other hand, if the Commission starts to apply rebuttable presumptions for transactions shifting the burden of proof on the parties, we may see more mergers being challenged and even greater notification burdens being imposed on merging parties. 

Companies should recognise this moment as a critical juncture to engage with the Commission on aspects of the consultation that are most relevant to their operations and to potential deal-making. This wide-ranging review presents a valuable opportunity for business to shape the future EU merger control landscape. 

Elisa Coppo (White & Case, Associate, Brussels) and Anastasios Tsochatzidis (White & Case, Trainee, Brussels) contributed to the development of this publication.

^{1 See Mission Letter to Teresa Ribera Rodríguez, September 17, 2024, available here.
2 Judgment of 13 July 2023, Commission v CK Telecoms UK Investments, C-376/20P.
3 As the Commission notes in Focus paper F: “While no merger case has so far been approved by the Commission exclusively on the basis that the merger-specific efficiencies would offset consumer harm, in some cases, the efficiency claims made by the merging parties were partially accepted by the Commission and balanced against the competition harm”. 
4 The press release accompanying the announcement of the consultation includes the following quote from Teresa Ribera: “This comprehensive and ambitious review of the EU merger guidelines is a unique opportunity to modernise the Commission’s framework for assessing the impact of mergers on competition. It will allow us to account for disruptive changes in our societies and our economies over the past 20 years, such as digitalisation, and enable us to ensure that innovation, resilience, and the investment intensity of competition are given adequate weight in light of the European economy’s acute needs.”} 

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