Reform in the making

• EU Merger Regulation ("EUMR") forms the legal basis for the assessment of concentrations.
• 2004 EU Horizontal and 2008 EU Non-horizontal Merger Guidelines ("Guidelines") set out analytical framework for EU Commission’s ("Commission") assessment; shall now be integrated into one document
• 8 May to 3 September 2025 (in-depth) consultation on Guidelines and seven specific reform areas (including resilience, efficiencies, innovation, and digitalization).
  • Stakeholder workshops on 4 December 2025 and 20 January 2026.
  • Conference on 5 March 2026 re Shaping the Future of EU Merger Control.
• Consultation on the published Draft Merger Guidelines ("New Guidelines") until 26 June 2026.
• New Guidelines’ implementation expected for Q4 2026 or Q1 2027.

Overarching goals and principles

• Merger control inter alia:
  • Ensures competitiveness and resilience of internal market;
  • Supports strong and diversified supply chains including for critical inputs;
  • Fosters transformation also to secure critical technologies and the defence readiness.
• Scale may be positive, especially, to enhance:
  • Innovation and technical progress;
  • Integration and expansion to compete globally;
  • Security and resilience.
• Competition may be multi-faceted and includes not only price but also non-price parameters:
  • Output, quality, (media) diversity, innovation, privacy, capacity, investment, sustainability, or resilience.

Procedural aspects

• Commission bears burden of proof ("more likely than not") for SIEC.
• Commission’s theory of harm may be balanced with a theory of benefits established by the parties with the same standard of proof.
• Commission:
  • Decides on a case-by-case basis;
  • Establishes no hierarchy between technical and qualitative evidence;
  • Has a certain discretion in weighing economic evidence as well as harms and benefits;
  • Considers contemporary documents on the theory of harm as particularly relevant evidence.
• A broader array of counterfactual scenarios including future developments and evolutions may be considered where appropriate.

Market power & Theories of harm

• Market power may be grounded in
  • Structural but also non-structural factors including low price sensitivity, and high profit margins;
  • Limited switching possibilities/barriers to entry;
  • Dynamic competitive potential.
• Direct and dynamic effects to be assessed:
  • Loss of head-to-head or potential competition;
  • Loss of investment and expansion rivalry; 
  • Loss of innovation (e.g. R&D poles or innovation capabilities) absent innovation shield;
  • Foreclosure, e.g. of customers or products;
  • Entrenchment of dominant position;
  • Coordination (increasing the risk of collusion);
  • Access to commercially sensitive information;
  • Portfolio effects

Efficiencies & Theories of benefit

• Efficiencies (direct and dynamic) must be
  • Verifiable;
  • Merger specific;
  • Benefit (largely the harmed) consumers.
• Efficiencies may merit longer time frames to materialize in certain sectors and circumstances.
• Efficiencies may be inter alia:
  • Cost or price;
  • Output and quality;
  • Incentives to invest, improve, and innovate;
  • Technology transfer;
  • Resilience;
  • Sustainability related.

Key take aways for dealmakers

• Have realistic expectations on the New Guidelines’ impact as EUMR still marks the boundaries.
• Prepare internal documents diligently as they serve as evidence base for Commission (theories of harm) and Parties (theories of benefits/efficiencies) alike.
• Stronger emphasis on non-price parameters including innovation bears chances (efficiencies) as well as risks (new theories of harm) and merits early scrutiny.
• Carefully underpin theories of benefit/efficiencies and present them early in the process.
• Emphasize scale’s positive impact, especially in global markets and sectors where European players must join forces to compete.
• Make use of the innovation shield for mergers in R&D heavy industries where feasible.
• Consider that national authorities’ practice (including the FCO’s) may deviate from the New Guidelines.