Security Alert
On 8 May 2025, as part of its review of the Horizontal and Non-Horizontal Merger Guidelines, the European Commission (“EC”) launched two parallel public consultations for a comprehensive approach to the existing merger rulebook: (1) a General Consultation, inviting feedback on high-level questions addressed at the general public (citizens, businesses and associations) on market dynamics and societal factors impacting EU consumers, as well as (2) an In-depth Consultation, seeking input on technical matters, across seven key topics that are relevant for the EC’s merger control assessments. The EC intends to support the above with an economic study on the dynamic effects of mergers for which it has launched a call for tender on 25 March 2025.
The consultation reflects the Draghi Report’s call for a fundamental overhaul of competition policy and is in tune with subsequent initiatives – the Competitive Compass, a new roadmap to restore Europe’s dynamism and boost economic growth, presented in January 2025, and the Clean Industrial Deal, designed to accelerate Europe's industrial decarbonisation while maintaining competitiveness – which underscore the need for innovation, competitiveness, and economic resilience in the EU.
The main rationale for revising the Merger Guidelines – which have remained largely unchanged for over two decades, since the publication of the Horizontal Merger Guidelines in 2004 and the Non-Horizontal Merger Guidelines in 2008 – is their modernisation and alignment with current market realities and economy, covering emerging market trends such as digitalisation, fast-paced technological advancement, globalisation, decarbonisation, and shifts in the geopolitical landscape, providing for a comprehensive, predictable, and lasting framework for the stakeholders.
As part of the General Consultation, the EC has compiled a holistic questionnaire with high level questions to collect facts, views and evidence to help update the Guidelines across several dimensions. The In-Depth Consultation touches upon 7 specific topics namely: (i) competitiveness and resilience; (ii) assessing market power; (iii) innovation and other dynamic elements; (iv) sustainability and clean technologies; (v) digitalisation; (vi) efficiencies; and (vii) public policy, security, and labor market considerations.
A reading of the seven (7) topics reveals a dual focus in the EC’s revamping goals: revisiting established technical aspects and concepts that are well embedded in the EU merger control framework while examining the introduction of novel notions that could fundamentally reshape the merger control landscape.
Refining established technical aspects
Market power assessment
The EC is considering substantial changes to how it assesses market power in merger control, aiming to address rising industry concentration and profit margins across the EU. Proposed revisions include (a) stricter structural indicators or rebuttable presumptions, shifting the burden of proof to merging parties under certain conditions, and (b) widening the ‘umbrella’ of its assessment tools going beyond market shares to include, inter alia, diversion ratios, profit margins, capacity data, and firm pivotality —especially relevant in differentiated and fast-evolving markets. The EC is also re-evaluating its approach to mergers falling below traditional dominance thresholds to address coordinated effects and non-horizontal mergers, in light of developments such as algorithmic pricing; all the aforementioned with the goal of modernising the framework while maintaining legal certainty.
Assessing efficiencies
The EC wishes to fine-tune through this consultation the well-established framework of assessing efficiencies to address its intrinsic challenges. In particular, the EC is examining the three cumulative criteria that have long guided this analysis: benefits to consumers, merger-specificity, and verifiability. While it appears that the EC’s goal is not a complete overhaul of the efficiencies test, i.e. the three cumulative criteria will likely remain intact, evidence and market-input is asked on the evidentiary standards that should be applied and the specific elements that the notifying parties must demonstrate to satisfy these criteria.
Examining novel notions
Competitiveness and resilience
The EC is currently reflecting on how to adapt merger control policies to better support EU competitiveness while maintaining robust competition. Key considerations include how mergers impact market resilience, particularly in critical supply chains and strategic sectors (e.g. security and defense), and whether scale advantages from mergers genuinely promote innovation and investment or potentially harm competition through market power accumulation. The EC is particularly concerned with balancing the need for EU-based companies to scale globally while preventing "killer acquisitions" that might stifle innovation. Additionally, the EC seeks to address how merger control should account for global competitive dynamics, including competition from companies benefiting from third-country subsidies or operating under less stringent regulatory environments, in light also of its new Foreign Subsidies Regulation.
Innovation and other dynamic elements
The EC aims to develop a framework that incorporates innovation and other dynamic competition aspects into merger control assessments. It focuses on evaluating product overlaps, early-stage pipelines, and potential reductions in innovation, with particular attention to mergers involving nascent competitors. The goal is to identify both the beneficial and harmful effects of a merger on innovation. The EC recognises that merger assessments are forward-looking, requiring a "more likely than not" standard to predict anti-competitive effects. A seminal challenge to tackle is establishing the correct counterfactual – the ‘what if the merger did not exist’ scenario – considering the most relevant benchmark.
Sustainability & Clean Technologies
In line with broader EU policy objectives, the consultation will provide a good opportunity for the EC to assess the integration of sustainability and clean technologies into the EU merger control framework. Delving into an issue that some national competition authorities (such as the Hellenic Competition Commission with the Sustainability Sandbox, and the Dutch Competition Commission with the Guidelines on Sustainability claims) have taken action, the EC wishes to understand and seeks market feedback on the role that merger control could play in facilitating procompetitive mergers that have promulgate sustainability and clean economy goals whilst ascertaining that transactions with negative effects on clean innovation do not materialise.
Digitalisation
This is another area where the EC is exploring the introduction of a novel notion in its merger control toolkit, recognising the need to align competition policy with the unique challenges presented by the rapid technological developments. Stakeholders are being asked to provide input on how digital economy related evolutions, such as tipping dynamics, ecosystem effects, data-related concerns, interoperability issues, and the relationship between privacy and competition can come into play when assessing mergers.
Public policy, security and labour market considerations
The last topic addressed in this consultation process attempts to wade into the ever-emerging question of how competition policy and, in particular, the merger control assessment framework, can engulf wider societal goals, besides business, consumer and market interests. In particular, the consultation seeks to explore the intersection between competition policy and public policy concerns such as security and defense – in line with wider EU recent efforts – as well as media plurality. Of particular significance in this last topic is the notion of including labour markets, and in particular monopsony considerations, as relevant factors in merger assessment. This would signal a transatlantic harmonisation, mindful of the US model which, explicitly since 2023, incorporates labour market effects in merger control assessment.
This Consultation represents a commendable effort by the EC to overhaul the conversation on current market realities and emerging trends that seem to have a more long-lasting effect, covering thoroughly key issues in combination with detailed queries, and reflecting thus a well-considered approach to engage stakeholders and concerned parties in its revision of the Merger Guidelines.
The EC’s Consultation, open until 3 September 2025, offers businesses a valuable opportunity to help shape the future enforcement of EU merger control. Following the consultation, the EC will publish the contributions and conclusions and later host a stakeholder workshop before finalising the revised guidelines, expected by end-2027. Meanwhile, the evolving policy priorities reflected in the consultation may already begin influencing the EC’s approach to ongoing merger reviews.
You can find more information on the European Commission’s Competition Policy Page, here: Review of the Merger Guidelines - European Commission.