The European Commission initiates a review of EU merger control guidelines

On 8 May 2025, the European Commission (the “Commission”) launched a public consultation on the review of its EU merger control guidelines which will last at least two years. The consultation consists of two components. The first adopts a broad perspective, asking stakeholders to respond to overarching questions about the Commission’s approach to merger assessments under the EU Merger Regulation. The second is more technical, covering seven specific topics through dedicated discussion papers that offer detailed background and targeted questions. Feedback on both components of the consultation must be submitted by 3 September 2025.

Background

The review focuses on two soft law instruments that inform the Commission’s substantive assessment of mergers:

• Horizontal Merger Guidelines (2004): These outline the Commission’s approach to evaluating mergers between competitors.
• Non-Horizontal Merger Guidelines (2008): These set out the framework for assessing vertical and conglomerate mergers.

While not legally binding, both guidelines have been instrumental in promoting transparency and predictability in the Commission’s enforcement practice. They aim to provide legal and economic context for the Commission’s interpretation of the substantive test under Article 2 of the EU Merger Regulation — specifically, whether a concentration would significantly impede effective competition (SIEC).

The review focuses on seven topics

The Commission has identified seven key areas for stakeholder input, each addressing important aspects of merger assessment. The seven key topics are discussed in different focused papers:

1. Competitiveness and Resilience: The focused paper refers to the Draghi report and suggests that the Commission may adapt the current EU merger control in order to boost competitiveness in the EU, including, inter alia, by allowing the scaling up of companies in global markets. Since the blocked Siemens/Alstom merger in 2019, which sparked intense political and policy debate across Europe, there has been a discussion on the need for “European Champions” and a more flexible application of EU merger control.
2. Market Power: The focused paper delves into methodologies for evaluating market power in merger assessments and explains that the Commission will consider introducing rebuttable presumptions for mergers where certain structural indicators—such as high market shares —suggest competition concerns. Under this proposal, which is likely to attract strong opposition from stakeholders, merging parties would bear the burden of providing compelling evidence that the transaction does not lead to anticompetitive effects, effectively reversing the traditional burden of proof.
3. Innovation: The focused paper notably discusses the Commission’s enforcement against killer acquisitions and the need to provide guidance on theories of harms in relation to potential competition and innovation, while also acknowledging that mergers can enhance innovation.
4. Sustainability and clean technologies: The focused paper explores the role of mergers in advancing the EU’s decarbonization goals in line with the Clean Industrial Deal adopted by the Commission.
5. Digitalisation: The focused paper addresses the complexities of assessing mergers in rapidly evolving digital markets and notes that traditional merger assessment frameworks may not adequately capture the nuances of digital ecosystems, where acquisitions of complementary assets like data or technology can both spur innovation and potentially stifle competition. A potentially problematic aspect is the paper’s suggestion that mergers involving nascent players or emerging technologies require extended forward-looking assessments. While this approach aims to anticipate future market developments, it may introduce uncertainty and complexity into the merger review process.
6. Efficiencies: The focused paper examines how efficiency claims are evaluated in merger assessments. A potential concern is the stringent evidence requirements for efficiency claims. Merging parties must provide robust proof that efficiencies are both merger-specific and substantial enough to counteract any anticompetitive harm. This high evidentiary bar may deter companies from pursuing mergers that could yield long-term consumer benefits but are difficult to quantify upfront.
7. Public Policy, security and labour market considerations: The focused paper explores how merger control intersects with broader societal objectives. It emphasizes that merger control indirectly can support public interests like labour markets, media plurality and democratic accountability.

Comments

The Commission’s review of its merger control guidelines marks a significant shift in EU competition policy. Moving beyond traditional metrics like market share and price effects, the Commission aims to incorporate broader considerations such as innovation, resilience, sustainability, and strategic autonomy into its assessment. While the initiative seeks to modernize the framework without changing the law, it raises questions about maintaining legal certainty and predictability for businesses. Stakeholders have until 3 September 2025 to submit feedback, with new guidelines expected by the end of 2027, marking what may be a gradual but potentially transformative recalibration of EU merger control and policy.