From consultation to revision: The EC's path to revised merger guidelines
The consultation encompasses both horizontal mergers (between competitors operating in the same market) and non-horizontal mergers (between companies at different levels of the supply chain or that are active in closely related markets). These have been governed by existing guidelines since 2004 and 2008, respectively (together the Merger Guidelines).
A general public consultation questionnaire includes high-level questions on how the EC should assess mergers within the framework of the EU Merger Regulation (EUMR) and on the principles that should underpin its revised guidelines.
In addition, the EC has published seven focused papers elaborating on current challenges and addressing the legal and economic parameters it applies when assessing mergers. These papers offer technical background and pose targeted questions on specific topics, namely (1) competitiveness and resilience, (2) market power, (3) innovation, (4) sustainability and clean technologies, (5) digitalization, (6) efficiencies, and (7) defense and labor considerations.
Responses to both the general and in-depth consultations (Consultations) must be submitted by September 3, 2025.
The EC has also run a call for tender for an economic study on the dynamic effects of mergers.
The EC is clearly very much still in “listening mode”—it has not yet set out any concrete proposals for stakeholders to comment on. It will publish a draft of the revised Merger Guidelines for further consultation only once it has assessed feedback from the Consultations and economic study and held a stakeholders’ workshop. While this approach enables greater stakeholder engagement and can result in more appropriately tailored guidance, it is time-consuming—the revised Merger Guidelines are unlikely to be published before the end of 2027. However, we may well see the EC “testing” some of these new approaches in cases it reviews in the interim.
Integrating resilience, innovation, and sustainability into EU merger control
The Consultations, and the focused papers in particular, provide a hint of the EC’s likely direction of travel. While some topics simply reflect the approach the EC has taken in cases it has reviewed in the years since the Merger Guidelines were published, some may amount to a major refresh.
Notably, the EC may employ the revised Merger Guidelines to better support European companies in scaling up within global markets, thereby keeping pace with worldwide technological developments. In the EC’s view, merger control should play a role in enhancing the resilience of the EU Single Market, particularly by contributing to shielding it from unreliable supply sources, dependencies, currency fluctuations, supply chain delays, and geopolitical uncertainties. In referring to its Siemens/Alstom decision (case M.8677), the EC raises questions about pro-competitive consolidation in global strategic sectors that could benefit competition within the Single Market. The EC also talks of the need for an updated approach that is “better geared to common goals” of the EU.
The suggestion that the EC is looking to recalibrate its approach to merger reviews to more effectively support the competitiveness of the EU economy echoes recommendations in Mario Draghi’s September 2024 report (Draghi Report). This report advocated for the use of the EUMR to advance the EU’s industrial policy objectives and to enable European companies to scale up in strategic sectors.
The Consultations also ask for views on the role that public policy considerations may play in merger assessments. The EC specifically highlights issues such as labor markets, media plurality, resilience, sustainability, defense and security. All of these concerns feature prominently in the EC’s January 2025 “Competitiveness Compass,” which is intended to steer the new EC’s work and translate the recommendations in the Draghi Report into a roadmap.
Sustainability is certain to receive specific attention in the revised Merger Guidelines. Given the increasing interplay between competition, innovation, and sustainability, the EC is encouraging reflection on the role of merger control in advancing European sustainability objectives. It is considering whether to provide guidance on how it will assess the impact of mergers in this area. This will likely prompt further discussion on market definition and reignite debate on the assessment of effects arising out of relevant mergers.
Innovation and incentives to invest are also expected to feature prominently in the revised Merger Guidelines. On the one hand, the EC’s clear resolve to protect innovation and potential competition suggests that there will be a continued focus on so-called “killer acquisitions.” On the other hand, the consultation seems to recognize that mergers can have a positive impact on innovation. In the past, the EC has largely focused on the potential for mergers to reduce innovation. While the “innovation defense” suggested in Draghi’s report is not explicitly discussed, it is likely to feature in stakeholders’ feedback.
Reassessing efficiencies and burden of proof
Significantly, the EC recognizes the challenges it faces in balancing the anticompetitive effects of a merger against the efficiencies claimed by the parties involved. The EC is seeking feedback on how it might adapt its approach, including how it assesses efficiencies that result in improved innovation and sustainability, as well as the appropriate time horizon over which these efficiencies should be evaluated. This will hopefully lead to a relaxation of the EC’s currently stringent stance, which to date has meant that no merger has been approved on the basis that efficiencies would outweigh consumer harm.
Finally, and likely to attract strong opposition from stakeholders, the EC has indicated that it is considering the introduction of rebuttable presumptions to facilitate the identification of mergers that are likely to raise antitrust concerns. Such a move could shift the burden of proof onto the merging parties, requiring them to demonstrate that the transaction is not anticompetitive. This would represent a significant change in approach. While it would be consistent with the stance taken by the EC in its draft guidelines on exclusionary abuses, the degree to which the final version of these guidelines retain a “presumption based” approach is uncertain given it was met with strong criticism.
Wider context
This consultation forms part of the EC’s broader efforts to modernize its competition policy to tackle new market realities, take account of wider considerations (such as sustainability), and integrate “lessons learned” in recent years. It also provides an opportunity to further protect the Single Market from external threats—in line with the objectives underlying the Foreign Subsidies Regulation (2022/2560) and the legislative proposal for a new FDI Screening Regulation.
Additionally, it is relevant that while only the EC has competence to assess mergers that meet the EUMR thresholds, EU member states may intervene to protect “legitimate interests” such as public security. The ability of this division of competences to sometimes give rise to tensions has been most recently evidenced by the Italian government’s decision to exercise its “golden power” to oppose UniCredit’s public takeover bid for Banco BPM (M.11830) on national security grounds. The EC remarked that interventions by member states must be proportionate, transparent, and motivated by a genuine public interest.
It remains to be seen how the EC will approach its revision of the Merger Guidelines to respond to changed market dynamics and to better support the EU’s wider policy objectives—including the need to protect the Single Market and to foster innovation and growth. The discussion topics set out in the seven targeted papers offer valuable insights into the key areas of debate and the possible course the EC will take. The indication is that we are likely to see more focus on supporting innovation and scale in strategic sectors. More broadly, the emerging picture suggests that, in some cases, public interest considerations may also play a role alongside the traditional competition and consumer welfare assessment. Stay tuned!
