On 8 May 2025, the European Commission (EC) launched a public consultation to seek feedback on its ongoing review of the 2004 and 2008 EU merger guidelines.Review Merger Guidelines – Targeted Consultation, 8 May 2025; available here. These guidelines describe the framework that the EC applies when assessing the competitive impact of mergers. The review process will explore whether and how merger control should factor in innovation, efficiency, resilience, investment incentives, sustainability, defence and security, and other transformational policy objectives of our times.See press release of the EC of 8 May 2025 “Commission seeks feedback on the review of EU merger guidelines”, available here.
According to Teresa Ribera, the EC’s Executive Vice-President for Clean, Just and Competitive Transition, the consultation is part of a “comprehensive and ambitious review of the EU merger guidelines” that aims to modernise the EC’s framework for assessing mergers.
The EC launched two parallel consultations. The General Consultation is directed at the general public and other stakeholders and seeks broad feedback on the existing guidelines. The In-depth Consultation seeks feedback from stakeholders with technical merger control expertise on seven topics that are/may be relevant for the EC’s merger reviews: (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.
The EC’s ongoing review covers two sets of guidelines: the 2004 Horizontal Mergers Guidelines (HMG) covering the assessment of mergers between actual or potential competitors in the same relevant market, and the 2008 Non-horizontal Merger Guidelines (NHMG) covering the assessment of mergers between companies operating at different levels of the supply chain.
There have been several transformational changes in the economy since the introduction of HMG and NHMG, ranging from digitalisation and globalisation to decarbonisation, which can impact competitive dynamics in many markets. The EC dealt with many of those changes in its more recent enforcement practice, and now aims to update its assessment framework for mergers to reflect this practice. In the revised guidelines, the EC also looks to reflect case law from the EU Courts regarding mergers.See press release of the EC of 8 May 2025 “Commission seeks feedback on the review of EU merger guidelines”, available here.
The consultations constitute a first step on the way “to modernise competition policy” — a goal set out in the 17 September 2024 Mission Letter from EC President Ursula von der Leyen to Commissioner Teresa Ribera.Ursula von der Leyen, Mission Letter to Teresa Ribera Rodríguez, 17 September 2024, available here. The Mission Letter takes account of Mario Draghi’s 2024 report on the future of Europe’s competitiveness that was commissioned by the President of the EC. Among other things, Draghi called for “updated guidelines (…) allowing for an ‘innovation defence’“The future of European competitiveness, Part B, In-depth analysis and recommendations, 9 September 2024, p. 299; available here. and identified three necessities for the EU to boost its competitiveness: closing the innovation gap, decarbonising the economy, and reducing dependencies. Through the January 2025 Competitiveness Compass, the EC outlined a plan to translate these necessities into reality.Communication COM (2025) 30 final, A Competitiveness Compass for the EU, Brussels, 29 January 2025; available here.
The seven papers in the In-depth Consultation aim to stimulate discussion on “focus” topics. In more detail:
In this paper, the EC considers how to enable companies in the EU to scale up whilst avoiding accumulation of market power.Review Merger Guidelines – Targeted Consultation, 8 May 2025, paras 12-14; available here. It emphasises 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.Review Merger Guidelines – Targeted Consultation, 8 May 2025, para 24; available here. For situations where a merger leads to a significant loss of competition, the EC recognises that increased scale may generate merger efficiencies which offset the competitive harm, such as enabling startups or SMEs to scale up and bring new products to the market or generate economies of scale and scope.Review Merger Guidelines – Targeted Consultation, 8 May 2025, paras 25; available here.
Resilience to shocks is an important feature of Europe’s competitiveness. Events like the COVID-19 pandemic and the Russia-Ukraine war and concomitant energy crisis have highlighted the importance of robust, reliable, and diversified (in other words, resilient) supply sources to businesses active in the EU.Review Merger Guidelines – Targeted Consultation, 8 May 2025, paras 15-16; available here. Mergers of companies producing critical inputs or having access to critical raw materials can increase the dependency of the industrial ecosystem in Europe on a few companies, potentially concentrated in a certain region or country outside the EU. Such interdependencies can expose the industrial ecosystem in Europe to systemic risks, such as supply shocks in other jurisdictions resulting from natural events or geopolitical developments.
The EC suggests undertaking a resilience risk assessment using qualitative and quantitative tools analogous to those used to assess market power of suppliers, possibilities of switching suppliers, foreclosure risks, or coordination risks resulting from a merger. It considers further exploring the application of the tools for the assessment of strategic resilience, and resistance to external shocksReview Merger Guidelines – Targeted Consultation, 8 May 2025, para 30; available here. (see also, paper #7).
The EC also emphasises the role of imports in a globalised world. When markets have been defined on a national or EEA-wide basis, the EC considered in detail the role of imports from outside the EEA in the competitive assessment.Review Merger Guidelines – Targeted Consultation, 8 May 2025, para 32; available here. Whilst this is correct as such, these considerations did in the vast majority of cases not have any impact on the outcome of the assessment.See, for example, the EC’s decision of 6 February 2019 in case M.8677 – Siemens/Alstom, where the EC found that Chinese competitors were not present on the market for signaling systems and not likely to enter the market for high speed trains. In case M.9343 – Hyundai Heavy Industries Holdings/Daewoo Shipbuilding & Marine Engineering, decision of 13 January 2022, para 605, the EC established that Chinese manufacturers are rarely approached by European customers and in case M.9094 – Amcor/Bemis, decision of 11 February 2019, para 121, the EC found that imports from China did not constitute a significant competitive force that could significantly alter the bias in favour of the parties in the market of flexible packaging for medical applications.
This paper is an outlier compared to the other six as it has little to do with the novel substantive goals laid out in the Draghi report and the Competitiveness Compass. This paper considers rebuttable presumptions that would allow the EC to intervene more easily against mergers that raise competition concerns. Evidence to rebut these presumptions must be “particularly compelling”.
Presumptions that allow the EC to intervene more easily against mergers are bound to face criticism. But the paper also includes suggestions that stakeholders would welcome, e.g., guidance on when merging firms can be considered close competitors or how to identify mergers that would result in the elimination of an important competitive force.Review Merger Guidelines – Targeted Consultation, 8 May 2025, para 37; available here. The same applies to clarifications on coordinated effects in oligopolistic markets.Review Merger Guidelines – Targeted Consultation, 8 May 2025, para 48; available here.
Finally, the EC also suggests using alternative metrics beyond shares of supply to assess market power. Such metrics include: capacity shares, diversion ratios, profit margins, spare capacity, or a firm’s pivotality.Merging firms may be considered “pivotal” when competitors would jointly have insufficient capacity to supply the entire market demand, if the merging firms’ capacities were to be withdrawn from the relevant market.
In this paper, the EC emphasises the ambivalent role that mergers play regarding innovation: depending on the circumstances, a merger can facilitate/accelerate innovation by the combined firm or harm innovation competition and limit R&D investment incentives.Review Merger Guidelines – Targeted Consultation, 8 May 2025, para 51; available here. A key challenge for the EC is to distinguish these “circumstances” while crafting the correct “counterfactual” for the merger assessment.Review Merger Guidelines – Targeted Consultation, 8 May 2025, para 52; available here.
The paper seeks views on a four-pronged framework for the assessment of innovation in horizontal mergers dealing with late-stage and earlier-stage R&D projects and also the broader R&D capabilities of the merging parties.The test assesses the effects of a merger throughout the life cycle of innovation, including the risk of harm arising from (a) overlaps between existing products, (b) overlaps involving advanced pipeline products, (c) a discontinuation, delay, or redirection of early-stage pipelines, or (d) a loss of innovation competition from a structural reduction in the overall level of innovation. See Review Merger Guidelines – Targeted Consultation, 8 May 2025, para 54 with case references; available here. This framework becomes increasingly relevant as the EC zeroes in on so-called “killer acquisitions” (defensive acquisitions of nascent competitors that lead to discontinuation of the target’s novel products) and “reverse killer acquisitions” (which lead to discontinuation of the buyer’s R&D projects) in the pharma and tech sectors.Review Merger Guidelines – Targeted Consultation, 8 May 2025, para 55; available here.
A key deficiency of the current HMG is that they do not distinguish between future rival entry as a countervailing factor and the elimination of a potential competitor as a theory of harm, and whether and how the conditions for one apply to the other. The EC seeks to clarify this. The EC also invites stakeholder input on the competitive impact of “perceived entry”, i.e., a scenario where a merging party is constrained by the perception that a rival may enter — while such rival has no actual entry plans.Review Merger Guidelines – Targeted Consultation, 8 May 2025, para 60; available here.
It will be a herculean task to flesh out the details on innovation competition in the revised guidelines for all constellations and industries identifying the best suited metrics, the optimal projection times, and the appropriate weighting of all dynamic parameters involved. Stakeholders will, however, appreciate that the EC is opening the discussion in this direction.
The EC confirms that it cannot intervene in mergers solely on public policy grounds unrelated to competition.Review Merger Guidelines – Targeted Consultation, 8 May 2025, para 73 fn 61; available here. That said, sustainability will be addressed in merger reviews when it is a parameter of competition in the relevant markets. Indeed, the EC increasingly considers sustainability in recent merger reviews, e.g., in market definitionSee the examples in Review Merger Guidelines – Targeted Consultation, 8 May 2025, fn 62; available here. or to assess a merger’s potential effects.See for an overview Competition Policy Brief No 1/2024, Section 1.4.
In the context of horizontal mergers, sustainability considerations play a role as a non-price parameter of competition. For example, firms’ offerings may differ based on customers’ preferences for recycled products or the use of green technologies or in the assessment of whether the parties to the transaction are close competitors — such as when the merging firms are both innovators on cleaner or more sustainable products or in green technologies; or in the assessment of whether one of the merging parties is an important competitive force.See the examples in Review Merger Guidelines – Targeted Consultation, 8 May 2025, para 74; available here. They may also be part of the theories of harm related to the loss of “clean” R&D and “green innovation” competition.See the examples in Review Merger Guidelines – Targeted Consultation, 8 May 2025, para 75; available here.
For mergers where sustainability aspects are claimed as efficiencies, see under #6 below.
This paper on digitalisation recalls general characteristics of markets subject to digitalisation.See, for example, the “winner-takes-most” dynamics, “tipping”, “ecosystems of interlinked products and services”, “network effects”, and “customer inertia” in para 81 Review Merger Guidelines – Targeted Consultation, 8 May 2025; available here. It adds that fewer transactions are purely horizontal, vertical, or conglomerate and that the lines between horizontally or non-horizontally linked product markets become increasingly blurred.Review Merger Guidelines – Targeted Consultation, 8 May 2025, para 83; available here. The paper then introduces the concept of ecosystem theories of harmReview Merger Guidelines – Targeted Consultation, 8 May 2025, para 82; available here. echoing the competition concerns in recent technology mergers. While the attempt of the EC to systematise its approach to ecosystem theories of harm is welcome, the suggestion that traditional foreclosure tests should be replaced by broader ecosystem entrenchment and leveraging is bound to attract criticism. In any event, the purpose of the consultation remains open-ended as the paper does not include any detailed definition of what an “ecosystem” can be.
Finally, the paper acknowledges that privacy and data protection concerns have been assessed in past merger cases. The use of data or access to data played an important role in the merger assessment. The EC therefore asks stakeholders “to what extent the revised Guidelines should explicitly list privacy and data protection as a relevant parameter of competition that EU merger control needs to protect”.Review Merger Guidelines – Targeted Consultation, 8 May 2025, paras 92-93; available here.
Merger efficiencies are only assessed if a merger is deemed harmful for competition. So far the EC has not cleared a merger only on the basis of its efficiencies.In case M.6570 – UPS/TNT Express, decision of 30 January 2013, the EC accepted that efficiency benefits would outweigh predicted price rises in 14 EEA States, but not in 15 others. Efficiencies must be demonstrated by the notifying parties showing that they are merger-specific, not achievable in less anticompetitive ways, and benefit the consumers that are otherwise harmed by the merger.
Various challenges arise in the context of efficiencies. First, it remains unclear how non-price efficiencies, including and notably innovation and so-called “green” efficiencies,Mergers may generate sustainability benefits including innovative clean technologies that might be considered as offsetting negative effects on competition (“green efficiencies”); see Review Merger Guidelines – Targeted Consultation, 8 May 2025, paras 70, 77 and 104; available here and here. should be identified and quantified for the merger assessment. Second, the time horizon for acceptable efficiencies needs to be clarified (i.e., whether longer-term benefits can compensate for short-term harm). Third, a merger may benefit several customer groups but not (or mostly not) the ones that are facing competitive harm as a result of the merger. Additional guidance is required for such “out-of-market” efficiencies.Review Merger Guidelines – Targeted Consultation, 8 May 2025, paras 104 and 77; available here and here. Fourth, it remains unclear what type of evidence the merging parties must adduce to show that the efficiencies they claim are verifiable. It is important to clarify if such evidence always needs to be quantitative.
The EC is now looking to revisit the analytical framework for efficiencies addressing each of these four challenges. This is a key exercise if the EC starts considering general policy objectives (like sustainability or innovation) in its merger reviews.
The last topic concerns a bundle of items that are high on the political agenda, including public policy, security and defence, media plurality, and labour market considerations. This focused paper asks open questions rather than providing any concrete direction of travel, suggesting that the EC has limited appetite to further expand its investigations into these areas. It seeks feedback on whether guidance on the interaction between Member States’ security and defence interests with the competition assessment under the EUMR could be useful.Review Merger Guidelines – Targeted Consultation, 8 May 2025, para 118; available here.
Similarly, the EC asks whether the revised Guidelines should provide guidance on the assessment of the impact of mergers on labour markets, but warns that the assessment of narrowly defined labour markets might “greatly increase the complexity of certain merger reviews”.Review Merger Guidelines – Targeted Consultation, 8 May 2025, para 122; available here. For security and defence as well as media plurality, the EC emphasises the privileged status of those policy objectives as legitimate interests under Art. 21 (4) EUMR.Review Merger Guidelines – Targeted Consultation, 8 May 2025, paras 113 and 119; available here.
The public consultation forms part of a broader call for evidence, elaborating on the practical details of the initiative. Relatedly, on 25 March 2025 the EC launched a call for tender for an economic study on the dynamic effects of mergers. The deadline to submit proposals expired on 20 May 2025.
The deadline to reply to the General and In-depth Consultation is 3 September 2025. The EC will analyse the responses to the consultations and publish a summary of the main points and conclusions (likely in late September or early October 2025). The results of the public consultation and of the broader stakeholder engagement will feed into the ongoing review of the EU merger guidelines, e.g., including also dedicated events and workshops.
When the EC prepares a draft of the revised guidelines, stakeholders will be invited to comment. The EC plans to adopt the final guidelines in Q4 2027.See EC, Merger guidelines – review, 8 May 2025; available here. Members of the European Parliament are putting pressure for a faster timelineSee letter from eight members of the EU Parliament, to Commissioners Ribeira and Séjourné of 25 May 2025 [sic!] requesting the EC to implement a “fresh approach to the EU competition doctrine to allow our companies to grow and thrive globally” and “to swiftly pursue a reform of EU merger control rules within a timeframe that reflects the urgency of this challenge”; this letter is available here. so an earlier adoption cannot be excluded.
The public consultation on the new merger guidelines is the first wholesale review of the substantive merger assessment in the EU since the new EUMR entered into force in 2004. Olivier Guersent, the outgoing Director-General of DG COMP, described the review as being “an evolution, not a revolution”.McClimont: Guersent: EU antitrust enforcement aims to be “boringly predictable”, GCR 27 February 2025. The aim, overall, to include non-price and dynamic parameters into the merger assessment describes efforts that have been made in past decisions of the EC and aim to bridge the gap between the practice and the guidelines.
At the same time, the EC is recognising the limits set by the CJEU in intervening on the basis of policy considerations or accepting out-of-market benefits in its merger assessment practice. For some of the topics, the EC appears to be in a “listening only” mode. For others, it appears determined to implement rebuttable presumptions to identify more easily mergers that are likely to result in SIEC.