The global M&A landscape in 2026 is defined by a fundamental tension: several major jurisdictions are signalling a more pro-business orientation in their merger control policies, yet this trend coexists with an expansion of regulatory tools and an increasingly protectionist approach to enforcement. This publication examines these complex and at times contradictory trends, exploring how merging parties and their advisers must adopt a holistic, multi-jurisdictional strategy that accounts not only for traditional competition analysis but also for the broader geopolitical and industrial policy considerations that are increasingly influencing merger control outcomes.
More pro-business merger control on the horizon?
Recent leadership changes and shifting governmental priorities in major jurisdictions are signalling a potential move toward more pro-business merger control. This trend is driven by geopolitical factors and changes in leadership across major jurisdictions. The evolving regulatory landscape may result in a more business-oriented approach to mergers, particularly in sensitive and strategic sectors.
The EU is undergoing a period of reflection and potential recalibration in its merger control policy. With the publication of the Draghi report and the Competitiveness Compass, and the increasing pressure on the European Commission to support "European Champions", there is a growing emphasis in the EU on fostering Europe's competitiveness and helping Europe close the innovation gap, especially in light of the competition from China and the United States. In May 2025, the European Commission launched a public consultation seeking feedback on its review of the more-than-20-year-old Horizontal and Non-Horizontal Merger Guidelines. In addition to the review's emphasis on efficiencies, particularly in relation to innovation, the review is exploring whether and how merger control should incorporate considerations such as resilience, investment incentives, sustainability, defence and security, and other public policy considerations. The consultation closed in September 2025, with a revised draft of the guidelines expected to be published in spring 2026. Final guidelines are expected by the end of 2027. In December 2025, EU Competition Commissioner Teresa Ribera indicated that the European Commission will adopt a more forward-looking and innovation-focused approach to deal reviews ahead of the publication of its final revised merger guidelines. The proposed merger of the space business of Airbus, Thales and Leonardo1 to create a European satellite company capable of competing with Elon Musk's SpaceX is likely to be a key development in 2026. The deal could provide a blueprint on the assessment of combinations involving European companies in strategic sectors.
In the UK, following the government's February 2025 consultation on its draft steer, the CMA signalled a shift towards a more business-friendly approach. In March, it introduced its "4Ps" framework (i.e., Pace, Predictability, Proportionality and Process) and updated its Merger Charter with new KPIs. The CMA aims to reduce average pre-notification from 65 to 40 working days and clear straightforward Phase I cases within 25 working days. Predictability is being strengthened through planned clarification of jurisdictional concepts such as material influence and the share of supply test. A stronger emphasis on proportionality is expected to result in more focused information requests and greater prioritisation of cases with the most significant potential impact on competition or consumers. The CMA is also encouraging earlier engagement, including briefing papers. Importantly, it has also indicated a "wait-and-see" approach for global transactions, suggesting that it may defer or narrow UK review where other major authorities are already investigating the deal. Although early in implementation, these measures mark a significant move toward a more streamlined and business-oriented merger review process.
In the US, the Trump administration has made several moves to make merger review less burdensome. For instance, the antitrust agencies have resumed the practice of granting early termination of the HSR waiting period and the FTC has expressed its intention to "get out of the way" of transactions that do not violate American law. In addition, on 12 February 2026, a federal district court in Texas vacated the new, more burdensome HSR form and rules that had been in place since February 2025. On 19 March 2026, the Fifth Circuit denied the FTC's motion for a stay pending appeal, meaning that for now, the old HSR form that was used prior to 10 February 2025 is back in effect. For more details, see our alert here. Merging parties appear to view the administration as taking a more pro-business approach and are proposing transactions that may have been less likely to be cleared under prior administrations.
Some jurisdictions may be adopting a more open approach to remedies
As merger control regimes evolve, some jurisdictions are reconsidering their approach to remedies. There is a discernible trend towards greater openness to more flexible solutions regarding remedies, reflecting a broader pro-growth and pro-business orientation in merger control policy.
In the UK, in October 2025, the CMA launched a public consultation on draft revised Merger Remedies Guidance, following the review of remedy practice announced earlier in the year. The draft guidance reflects a more flexible, pro-growth approach, signalling greater openness to behavioural commitments where effective, potentially even at Phase I, in line with its approach in recent cases such as the Vodafone / Three merger. The CMA has also recognised the role of efficiency gains in addressing competition concerns and, through the ongoing revision, seeks to provide clearer guidance on assessing these efficiencies and ensuring they are secured to deliver benefits to consumers post-merger. The draft further encourages earlier, without-prejudice engagement to support collaborative remedy design. For straightforward cases, the draft introduces "fix-it-first" and "fast-remedy" routes enabling quicker clearance where issues can be resolved upfront. The consultation closed in November 2025, with final guidance expected in 2026.
In the EU, while the Draghi report has suggested a more flexible approach to remedies, particularly in the telecommunications sector, there are currently no formal proposals to change the European Commission's established preference for structural remedies. Although the European Commission's approach remains conservative in this regard, ongoing debates may eventually lead to a more nuanced and even somewhat creative application of remedies in complex cases, for example when addressing competitiveness or sustainability-related concerns. This however remains to be seen.
In the US, while the antitrust agencies under the Biden administration generally employed a litigation-focused strategy to prevent mergers that they viewed as anticompetitive, the Trump administration has taken a more permissive approach to clearing mergers subject to remedies – typically divestitures – that address competitive harms. The Trump FTC has indicated, however, that behavioural remedies generally remain disfavoured. Throughout 2025, the current administration has cleared a number of transactions subject to structural remedies, suggesting that the Trump administration is moving towards a more deal-friendly approach that favours negotiated remedies over blocking transactions outright. Such mergers include Keysight Technologies / Spirent, Safran / Collins Aerospace, Hewlett Packard Enterprise / Juniper, Alimentation Couche-Tard / Giant Eagle, Optum / Amedisys, and Ansys / Synopsys.
In Australia, there has been a shift in recent years to recognising that competition concerns as a result of an acquisition can sometimes be effectively mitigated through behavioural remedies and that a hard line on structural remedies (as was the case under the prior Chair of the ACCC) may not always be appropriate, although still desirable, in all cases.
Rising Review Risk for Below-Threshold Deals
In the EU, the risk of reviewability of a deal that does not trigger traditional notification thresholds is here to stay for the foreseeable future. While the outcome of the Illumina / Grail judgment limited the European Commission's ability to review below-threshold deals, throughout 2025 the European Commission reiterated that such transactions remain very much within its focus. The European Commission is actively encouraging national competition authorities to adopt or expand call-in powers to fill the enforcement gap. A number of Member States, such as Italy, already have such call-in powers and some, including France and the Netherlands, are in the process of introducing them. Nvidia's pending challenge to the legality of the Article 22 referral in the Run:ai case, which was made pursuant to Italian call-in powers, will test the European Commission's approach to below-threshold deals. The hearing took place in March 2026.
Another trend that became even more pronounced in 2025 across the EU is the use of traditional antitrust rules (pursuant to the 2023 Towercast ruling) to review ex post non-reportable deals, with the Belgian and French authorities particularly active in that area. Whilst Towercast established that national competition authorities may apply the abuse of dominance rules under Article 102 TFEU to mergers that do not meet EU or national merger control thresholds and have not been referred to the European Commission under Article 22 EUMR, the French Competition Authority started to stretch the application of the ruling and reviewed a non-reportable merger under Article 101 TFEU. Throughout 2025, national competition authorities across the EU have actively pursued enforcement actions under this framework, with authorities in Belgium, the Netherlands and France launching investigations or imposing fines in relation to non-reportable transactions. In November 2025, French Competition Authority deployed abuse of dominance rules to fine a below-threshold merger for the first time. For a more detailed analysis of these developments, see our alert here. Another avenue for the European Commission to capture below-threshold deals, specifically in the digital sector, is Article 14 of the Digital Markets Act. The provision imposes an obligation on gatekeepers to inform the European Commission about any intended concentration where the merging entities or the target of the concentration provides core platform services or any other services in the digital sector, or enable the collection of data. The provision can potentially facilitate referrals of deals in the digital sector, provided the conditions for an Article 22 EUMR referral are met.
In the UK, with the Digital Markets, Competition and Consumers Act (DMCC Act) effective from 1 January 2025, the CMA has revamped its merger regime by introducing a new hybrid jurisdictional threshold. This test is intended to capture so-called "killer acquisitions", where dominant firms acquire smaller, innovative competitors to eliminate future competition, and enables the CMA to scrutinise vertical and conglomerate deals that would previously have fallen outside its remit, including those where the target has little or no UK revenue. Jurisdiction is triggered where one party, typically the acquirer, has UK turnover exceeding £350 million and holds at least a 33% share of supply in any UK goods or services, provided the other party is active in the UK. Notably, there is no requirement for an overlap in the parties' activities, and the CMA adopts a broad interpretation of UK nexus, meaning that even preparatory steps to enter the UK market may be sufficient to bring a transaction within scope. In practice, this means that acquirers meeting the turnover and share of supply thresholds (even if in a market with no connection to the target's activities) will need to assess the risk of triggering a CMA merger investigation in respect of any acquisition involving a target with a UK nexus.
In the US, the FTC and the DOJ have the authority to investigate and challenge any acquisition that may substantially lessen competition, regardless of whether it falls above the HSR thresholds. In November 2024, the FTC announced a new online merger portal that would provide a way for members of the public to comment on proposed mergers, including transactions not subject to HSR. Although this has not yet led to any public challenges or investigations of below-threshold mergers, the portal remains active and is a viable avenue for US antitrust agencies to call in a transaction that would have normally escaped the regulator's radar. The portal notes that the Commission "welcomes information on specific transactions and how they may affect competition." It allows commentors to remain anonymous while providing information on how a proposed transaction will affect competition, the relevant industry or market, and the geographic area affected by the transaction.
Australia's new mandatory merger control regime introduces obligations to obtain approval prior to completion where transaction meets revenue and/or transaction thresholds. However, there are no safe harbours under these thresholds. Section 50 of the Competition and Consumer Act 2010 (Act) continues to operate in Australia, and if the ACCC is of the view that a transaction that fell under mandatory thresholds is likely to have the effect of substantially lessening competition prior to completion, or has had the effect of substantially lessening competition post completion, it can investigate and seek orders including divestiture from the court and penalties for a breach of the Act.
Growing recognition that merger control rules may not address deals in the AI space
Regulators such as the CMA, the European Commission and some national EU regulators within the EU continue to focus on AI-related transactions and strategic partnerships, seeking to avoid perceived underenforcement in past digital markets. This heightened focus concerns deal structures traditionally outside of the merger control framework, including so called "acqui-hires", minority investments and strategic partnerships, which authorities believe may facilitate the transfer of competitive assets or produce lasting market effects. A key concern is that major digital platforms could leverage AI transactions to strengthen their position across the AI value chain – whether through talent acquisition, preferential access to compute and data, or integration of AI tools into broader ecosystems.
In the UK, the CMA remains focused on AI partnerships and transactions that fall short of outright control but may nonetheless confer material influence. Minority shareholdings, exclusivity arrangements and other structures that constrain a target's commercial freedom can all fall within scope. In April 2025, the CMA closed its review of Microsoft / OpenAI, the last of five AI-related cases examined since late 2023. The CMA found that Microsoft held significant influence but not sufficient for material influence amounting to control and therefore concluded that the partnership did not give rise to a reviewable merger. Earlier cases show that exclusive supply arrangements, limits on commercial freedom or the transfer of key employees and know-how may still create a reviewable transaction. However, Microsoft / OpenAI suggests that the CMA will continue to apply a fact-specific assessment before asserting jurisdiction in this evolving area.
In the EU, Microsoft's 2024 hiring event involving Inflection AI, including two of its founders, remains the leading case in this area. The European Commission initially investigated the hires and determined that, since it allegedly involved all the assets necessary for Microsoft to take over Inflection's market position in generative AI foundation models and AI chatbots, it constituted a concentration under EU merger control rules. However, following the judgment in Illumina / Grail, the European Commission concluded that it lacked jurisdiction to review the hires. Nevertheless, the case has become a focal point in the broader debate on whether existing merger control frameworks are adequate to address AI-related transactions, particularly alleged "acqui-hires" and other AI partnership structures.
In July 2025, the White House released America's AI Action Plan, which outlined steps to ensure that the United States leads the "race to achieve global dominance" in AI. The plan also includes a recommendation to review all FTC investigations, final orders, consent decrees, and injunctions "commenced under the previous administration to ensure that they do not advance theories of liability that unduly burden AI innovation…and, where appropriate, seek to modify or set aside any that unduly burden AI innovation." As AI technologies continue to develop and AI usage continues to increase, scrutiny will increase in this space, particularly with bipartisan interest in "Big Tech". However, the White House's guidance related to AI and its desire for the United States to be the global leader in AI innovation could indicate that US antitrust authorities may be more hesitant to interfere in any AI deals in a way that could be seen as stifling innovation or US "global dominance".
In Australia, the ACCC has indicated that it will closely monitor deals and conduct in Australia including in "direct investment in AI infrastructure, partnerships between key firms, and competition to attract a limited pool of technical expertise including through "acqui-hires".2
The rising tide of regulatory oversight will likely continue to present challenges for global M&A dealmaking
By 2025, the EU's Foreign Subsidies Regulation (FSR) has cemented itself as a key regulatory hurdle for M&A deals with an EU nexus. Most transactions notified under the FSR also require EU merger control clearance and often trigger foreign investment review filings.
While the European Commission initially anticipated just 30 FSR filings per year across M&A and procurement, the reality has far outpaced its expectations: over around 180 M&A related filings have landed in just over two years – averaging about eight per month. The busiest sectors are financial services, energy and consumer goods. Leading non-EU acquirers hail from the US, UK and UAE, targeting companies primarily in Germany, Italy and France. For deeper analysis, see our Foreign Subsidies Regulation Quarterly.
While FSR has added complexity for dealmakers, intervention risk has overall been low with two in depth investigations since the regime's inception. To date, the European Commission has launched only two Phase II investigations – Adnoc / Covestro and e& / PPF – both resolved with remedies. Looking ahead, 2026 promises significant FSR developments. On 12 January 2026, the European Commission published its draft FSR guidelines, clarifying the European Commission's approach to distortion, the balancing test, and its call-in powers for below-threshold deals – see our alert here. By mid-July 2026, the European Commission will deliver its first FSR implementation and enforcement report to the European Council and Parliament. Depending on the findings, legislative changes – including adjustments to FSR thresholds for M&A and public procurement – could be on the horizon.
In the UK, recent UK proposals indicate a gradual shift towards a more proportionate approach under the National Security and Investment Act 2021 (NSIA). In mid-2025, the UK Government announced plans to exempt the appointment of liquidators and certain internal restructurings from mandatory notification, though legislation is still to follow. It also launched a consultation to refine mandatory sectors, including the creation of a new Water sector and standalone sectors for Critical Minerals, Semiconductors and Computing Hardware, alongside broader updates to existing areas. While some changes may narrow the scope of the NSIA, others are expected to expand it, and overall notifications are anticipated to continue increasing. This trend is reflected in the latest Annual Report on the UK's NSIA, covering April 2024 to March 2025, which shows an increase in notifications across all routes, with most relating to Defence, Critical Suppliers to Government and Military & Dual-Use, and UK investors accounting for the largest share of notifications and call-ins. Despite numerous unapproved notifiable transactions being identified, no penalties were issued, consistent with prior years, while the regulator continues to monitor compliance closely.
In the US, under the revised HSR rules, parties must disclose whether the filing party has received any subsidy from any "foreign entity or government of concern" within the two years prior to the HSR filing and requires the parties to provide a brief description of any such subsidy. The current definition of "foreign entity or government of concern" identifies China, Iran, North Korea and Russia. Parties are also required to disclose active government defence contracts. Under these new HSR reporting rules, transactions involving parties that receive foreign subsidies or have active defence contracts may receive increased scrutiny from U.S. authorities, which could potentially extend beyond antitrust review. This in turn could potentially slow closings or even chill deal-making for parties that do not wish to provide these disclosures.
The Foreign Investment Review Board in Australia is continuing its heightened focus on reviews that have national security considerations and foreign government investment. Most recently this was evident where the investor sought to acquire a stake in Australian entities that contract with and provide services to the government. Strict and ongoing reporting conditions are attached to any approvals, and the timeframe for clearance continues to be long, notwithstanding statutory timeframes.
Protectionism set to shape global merger control enforcement?
A protectionist shift seems to be emerging in global merger control enforcement, with authorities increasingly using merger review as a tool to drive growth in their home jurisdiction. This trend is particularly evident in debates over the creation of "national champions" and the influence of geopolitical considerations when assessing mergers.
In the EU, the political pressure of nurturing "European Champions" and protecting European interests is gaining traction, although the regulator is resisting that such considerations are shaping the merger review. In November 2025, the European Commission opened an in-depth investigation concerning an acquisition of nickel business in Brazil. Ferronickel is a key input for European producers to manufacture high-quality, low-emission stainless steel at competitive prices, critical for many sectors. The concern is that the merged company will have an incentive to disrupt supply into Europe of ferronickel and divert it to China. At a first glance, the case is not an obvious case for a Phase II review. There are neither horizontal nor classic foreclosure concerns. The theory of harm focuses on considerations that appear to be more akin to FDI or trade law analysis rather than traditional merger control assessment. This case will set an important precedent for how the European Commission incorporates supply chain resilience into its merger control assessments. The outcome will also likely influence the revision of Horizontal and Non-Horizontal Merger Guidelines.
In the US, in April 2025 then-Assistant Attorney General Gail Slater delivered remarks and introduced the concept of "America First Antitrust" as her priority. She explained the concept as having three key features: 1) the protection of individual liberty from government and corporate tyranny; 2) a respect for legal textualism, originalism and precedent, grounded in a commitment to law enforcement; and 3) a healthy fear of regulation that saps economic opportunity by stifling rather than promoting competition. Recent actions by the antitrust authorities raise the question of whether "America First" enforcement will also extend to the prioritisation of U.S. entities over foreign entities in the antitrust assessment of transactions. On 12 February 2026, Gail Slater announced that she was stepping down as the head of DOJ's Antitrust Division. The new acting Assistant Attorney General, Omeed Assefi, has indicated that he intends to "continue the enforcement agenda that [Slater] highlighted and prioritized" but has suggested that Slater's DOJ was not aggressive enough in bringing civil enforcement actions, indicating potentially heightened enforcement.
In September 2025, Metsera, a pharmaceutical company developing obesity drugs, announced a deal to be acquired by Pfizer. This announcement launched a bidding war between Pfizer, a US company, and Novo Nordisk, a Danish company. During the bidding process, the FTC took the unprecedented step of calling Metsera to warn of antitrust concerns regarding Novo Nordisk. The FTC also granted early termination of the HSR waiting period for Pfizer, despite the FTC's previous statement that it would not issue any early termination decisions during the government shutdown. Pfizer completed its acquisition of Metsera in November 2025. While no similar public actions have been taken by the US antitrust authorities in other transactions, these actions by the FTC signal potential preferences for US buyers and could indicate that the FTC will intervene in future transactions to promote US buyers where there is a head-to-head competition for a transaction.
Australia's transition to a mandatory merger control regime may also reflect protectionist tendencies in merger control enforcement. In departing from its previous voluntary regime, the ACCC has indicated that the mandatory system is necessary to ensure visibility over global transactions and to enable the ability to conduct reviews and render decisions that carry appropriate weight in multi-jurisdictional assessments.
1 At the time of writing of this article, the deal has yet to be formally notified with the European Commission.
2 ACCC snapshot on AI developments highlights the need for continued monitoring of emerging technologies | ACCC
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