On 30 April 2026, the European Commission published for consultation a draft of new Merger Guidelines proposed to replace the existing 2004 Horizontal Merger Guidelines and 2008 Non-Horizontal Merger Guidelines. Although still subject to consultation and formal adoption, the draft Guidelines are expected to shape the Commission's analytical approach from now on.
The EC's new draft of Merger Control Guidelines
The draft follows a year-long consultation process — including a May 2025 call for evidence, a public consultation and multiple stakeholder engagement events – that prompted considerable debate about the future direction of EU merger control enforcement against a backdrop of growing geopolitical pressures and renewed focus on European competitiveness. For the first time, the draft Merger Control Guidelines (draft Guidelines) merge the assessment of horizontal and non-horizontal transactions into a single unified framework and substantially expand the analytical toolkit available to both the Commission and merging parties. The draft Guidelines codify over 20 years of the Commission's and EU courts' decisional practice and adapt it to current market and geopolitical realities. The core analytical architecture (market definition, market shares, HHI, foreclosure tests, efficiencies conditions) is preserved, but it is embedded within a considerably broader and more flexible framework that gives the Commission more tools, more theories of harm to work with, and a more explicit mandate to weigh benefits alongside harms.
Stakeholders can comment on the draft until 26 June 2026. The Commission aims to publish the final text by 1 November 2026 and formally adopt it by 1 December 2027.
Key Takeaways from the draft Guidelines
| # | Key takeaway | Brief Overview |
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| 1 | Revamped Unified Framework for Assessing Mergers with New or Expanded Theories of Harm | - The draft Guidelines consolidate assessment of horizontal and non-horizontal mergers into a single document.
- The core legal test remains – significant impediment to effective competition (SIEC). This is an expected development as the SIEC is enshrined in the EUMR and the legal standard cannot be altered by soft-law instruments such as guidelines.
- The draft Guidelines include an upfront set of "Guiding principles" addressing burden of proof, theories of harm and benefit, evidence, overall assessment including benefits, and causality/counterfactual (including the failing firm defence) as standalone framing sections and include far more details on the assessment of the counterfactual than the existing guidelines.
- The draft Guidelines are more explicit on market power and "first-pass" structural indicators. For example, certain market structures may be indicative that a merger between competitors does not give rise to a SIEC (including where the parties' combined share is below 25%, or where certain HHI/ΔHHI thresholds are not met).
- The draft Guidelines stress the limits of static market shares in dynamic or volatile markets and add a framework for the assessment of "dynamic effects". The draft makes a formal distinction between "direct" and "dynamic" anticompetitive effects as a structural organising principle. In the assessment of dynamic effects, the Commission considers the impact of the merger on the merging firms' and their (actual or potential) rivals' ability and incentives to invest and innovate and on future product market competition.
- The draft lists eight theories of harm (applicable to all mergers irrespective of whether the transaction is horizontal, vertical or conglomerate in nature).
- Some of these (loss of head-to-head competition, closeness of competition, the notion of an important competitive force, foreclosure, coordination) are familiar from the previous guidelines, whereas theories such as loss of investment and expansion competition, loss of innovation, entrenchment of dominance and loss of potential competition have now been articulated in a self-standing manner for the first time.
- The draft Guidelines also flag common ownership (and related links/rights) as a potential factor affecting incentives to compete, particularly as a contributing factor in a loss of head-to-head competition theory.
- There is also a category of "other anticompetitive effects" – the draft Guidelines give the example of giving the merged entity access to competitively sensitive information or increasing the merged entity's market power over a portfolio of products, reflecting the Commission's focus in recent cases such as Mars/Kellanova or UMG/Downtown.
- Labour markets also get a mention for the first time. Companies being buyers and workers being sellers of labour – the Commission may assess whether a merger might increase an employer's purchasing power in labour markets resulting in lower wages, worse working conditions, or reduced workers' mobility.
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| 2 | Efficiencies/Bilateral Theory Framework: "Theory of Benefit" as a counterpart to "Theory of Harm" | - The draft Guidelines state that "demonstrated efficiencies will play a key role in the assessment of mergers going forward".
- The draft Guidelines encourage companies to articulate and substantiate a "theory of benefit" explaining how merger-specific efficiencies enhance or maintain effective competition and benefit consumers so as to offset any harm to consumers on a lasting basis.
- The formal elevation of the efficiency case to a "theory of benefit" requires parties to prepare their efficiency submission well before notification.
- The draft Guidelines emphasise evidence quality: contemporaneous internal documents and third-party corroboration are expressly highlighted as persuasive evidence for efficiencies (including dynamic efficiencies) and should be curated earl
- The fundamental criteria for assessing efficiencies remain the same, i.e., efficiencies must be verifiable, merger specific and be passed on to consumers.
- Contrary to the current framework which focuses on short-term costs savings, the draft Guidelines introduce the notion of dynamic efficiencies.
- This represents a significant evolution in the Commission's efficiency analysis since the previous guidelines, replacing an undifferentiated efficiency defence with a multi-dimensional "theory of benefit" framework that credits dynamic parameters of competition alongside the traditional static ones.
- The draft Guidelines give practical guidance on how benefits are balanced against harm over time, including explicit reference to discounting / net present value type logic where effects arise at different points in time, and it adds guidance on balancing across different consumer groups/markets (i.e., where harm and benefits are not symmetric).
- The draft Guidelines acknowledge that also broader factors such as scale, resilience and sustainability may in some situations lead to verifiable, merger specific benefits to consumers.
- The Commission has a margin of discretion in the balancing test.
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| 3 | Innovation Shield: A New Defined Safe Harbor for Small Innovator Acquisitions | - The draft Guidelines establish a framework under which transactions involving small innovative companies, including start-ups and R&D projects with a dynamic competitive potential should not, in principle, give rise to SIEC.
- Such acquisitions must meet specific conditions. In particular, 25% / 40% market share thresholds (depending on the scenario) and, in some overlap scenarios, the presence of at least three independent firms with R&D projects of similar competitive potential.
- The draft Guidelines suggest that the safe harbour may still apply in relation to an acquisition of a start-up with an R&D project even if the specified combined market share thresholds are exceeded provided that the acquirer is not the largest company in a relevant market or a designated gatekeeper under the EU's Digital Markets Act.
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| 4 | Scale and Global Competitiveness Now Recognized as Pro-Competitive Deal Rationales | - The draft Guidelines expressly acknowledge that scaling-up of firms in the internal market to compete globally can be procompetitive and have a positive impact on the EU economy.
- Scale-enhancing mergers that combine complementary activities from different Member States without generating significant overlaps are regarded positively, provided that they do not form an obstacle to competition.
- Any efficiencies from scaling up must satisfy the three cumulative conditions of verifiability, merger-specificity, and consumer benefits.
- The draft ties "scale" arguments to today's geopolitical context and, in particular, to resilience-related factors such as security and diversity of supply chains, security/cybersecurity of critical infrastructure, defence readiness, and incentives to invest in critical technologies.
- The benefits of scale must be distinguished from increases in market power – so it is unclear to what extent, if at all, arguments on scale will help transactions that would have to date run into difficulties.
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| 5 | Expanded List of Parameters of Competition: Investment, Innovation, Privacy, Sustainability and Resilience | - The draft Guidelines formally expand the parameters of competition beyond the Commission's traditional focus on price, output, choice and quality to expressly include investment, innovation, privacy, sustainability and resilience.
- This broadens both the range of concerns the Commission can raise against a transaction and the range of benefits merging parties can put forward to offset any identified harm.
- Notably, the concept of "resilience" (defined in the draft Guidelines as "the readiness and ability of the internal market or part of it to continue servicing customers and to anticipate, withstand and recover from serious shocks") features prominently throughout the draft Guidelines. How resilience arguments could play out against traditional theories of harm remains to be seen.
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| 6 | A Greater Emphasis on Dynamic Competition | - The draft Guidelines recognise that in some markets, in particular in those where innovation or investment in new products, services or processes is an important parameter of competition, a static assessment of market power does not fully capture a firm's competition potential.
- In such markets the Commission may take into account forward-looking aspects in terms of the firms' future capabilities, or expected market developments.
- The draft Guidelines explicitly note that companies with low or even zero market shares may qualify as an important competitive force if they have promising R&D projects, innovation capabilities, or R&D organisations.
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| 7 | Article 21 EUMR: Clearer Framework for Member State Intervention on Legitimate Interest Grounds | - The draft Guidelines provide for the first time detailed guidance on when and how Member States can invoke legitimate-interest grounds pursuant to Article 21 EUMR.
- This is a response to an increasing pattern of Member States' interventions into transactions cleared by the Commission in recent years, suggesting the Commission's readiness to deploy its enforcement tools against measures that fragment the internal market.
- Recognised legitimate interests are public security, media plurality, and prudential rules.
- Beside the recognised interests, Member State can identify other public interests that may be considered legitimate subject to a prescribed procedural framework.
- Legitimate interests cannot be used to pursue purely economic objectives.
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Practical Implications for Businesses
- The draft Guidelines represent a welcome development for dealmakers. It seems that the Commission intends to assess efficiencies — through the articulation of a "theory of benefit" — on an equal footing with its theory of harm. This represents a significant and welcome evolution in the Commission's analytical approach. However, it is for the parties to present efficiencies and evidence to support any efficiency claims. As such only robust, well-evidenced submissions in which the parties demonstrate the familiar criteria of verifiability, merger specificity and benefit to consumers could be expected to make a difference in the outcome of merger reviews. By formally elevating the role of efficiencies in the merger assessment and broadening the range of recognised pro-competitive rationales, the Commission is signalling a greater willingness to engage with efficiency arguments. However, it remains to be seen how it will play out in practice.
- Digital, pharma and life sciences sectors may stand to benefit from the new "innovation shield" safe harbour and the dynamic approach to competitive assessment. Acquirers of start-ups, small innovative companies or R&D projects should assess at the outset whether a transaction may qualify for the safe harbour and how to leverage competitive dynamics of those markets. While the conditions for the "innovation shield" defence are demanding, this new safe harbour could provide a meaningful pathway to clearance in those sectors. Parties should also screen early for adjacent issues that can complicate the narrative in innovation-driven deals, such as access to commercially sensitive information theories (even absent classic foreclosure) and ecosystem/entrenchment angles.
- More open approach to the creation of "European Champions"? While the draft Guidelines expressly recognise that mergers enabling EU companies to scale up and compete more effectively on the global stage can be regarded as pro-competitive, they do not represent a radical departure from the Commission's established practice - the core legal standard remains unchanged: the analysis continues to be centred on whether a transaction gives rise to a SIEC. Parties pursuing consolidation for scale, cross-border integration or strategic resilience should frame their deal rationale accordingly, while bearing in mind that the Commission is likely to intervene where the resulting market power harms consumers and competition within the internal market, regardless of any "European Champion" narrative.
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