Overview
Introduction
On May 8, the European Commission (Commission) launched a public consultation to seek feedback on its major review of both Horizontal and Non-Horizontal Merger Guidelines1 (EU MG). The consultation serves as a comprehensive call for input to shape the Commission's future initiatives, while offering valuable background information and possible insight into what the antitrust community can anticipate during Executive Vice President (EVP) Ribera's tenure. The deadline for replying is September 3, 2025. Steptoe intends to make submissions to the Commission and welcomes any input from readers.
Background
The main objective of the merger control system is to safeguard a dynamic and competitive internal market, while ensuring that companies may gain scale, innovate, invest and offer improved products. Merger control prevents excessive market concentration by limiting the dominance of a single company, which could harm consumers, stifle competition and undermine the EU's productivity and economic growth.
EU merger control is governed by the EU Merger Regulation2 and the EU Merger Guidelines, which outline the framework for assessing mergers' competitive impact on competition. When reviewing a merger, the Commission approves unconditionally the transaction if it does not impede effective competition within the EU. If substantial concerns are identified, merging parties may propose remedies to address the issue (i.e., modifications to the deal). If remedies are inadequate, the Commission may block the merger to prevent harmful effects on businesses and consumers (e.g., higher prices, lower quality or limited choice of goods/services).
Since the adoption of the EU MG, the economy has undergone several transformative shifts, which have reshaped competitive dynamics across various markets. After two decades, the current review of the EU MG aims to update the framework in response to these evolving market realities. This review will also incorporate lessons learned from case law and the enforcement practices of the Court of Justice of the European Union (CJEU) and aligns with the recommendations outlined in the Draghi Report3, which calls for a "more forward-looking and agile" EU merger control system.
The EU Merger Guidelines Review
The review covers the EU MG, both for the assessment of mergers between actual/potential competitors (horizontal mergers) and those for the assessment of mergers between companies operating at different levels of the supply chain (non-horizontal merger). The current review aims to (i) address transformational changes (digitalization, globalization and decarbonization); (ii) create a comprehensive, predictable and lasting framework for merger assessing; (iii) align the framework with case law from the CJEU and best practices. The review will cover not only the areas highlighted in the Commission’s Political Guidelines4, EVP Ribera’s mission letter5 and the Competitiveness Compass6, but also broader economic trends shaping productivity and competitiveness. The revised EU MG will be adopted in late 2027.
The Consultation
The consultation is divided into a General Questionnaire, directed at the general public seeking feedback from citizens, businesses, or associations on market and societal considerations affecting consumers, and an In-depth Questionnaire, seeking feedback from stakeholders with technical merger control expertise on seven specific topics.
Alongside the consultation, the Commission published seven papers that will be the basis for broader engagement with stakeholders and it also launched a call for tender for an economic study on the dynamic effects of mergers.
A. General Questionnaire
The EU MG aim to enhance transparency and predictability for businesses regarding the Commission's approach to merger assessments. Accordingly, the General Questionnaire asks broad questions seeking feedback on whether the EU MG have effectively identified anticompetitive transactions, promoted competition, and provided clear and comprehensive guidance on merger assessment.
The General Questionnaire seeks input on the potential harms and benefits of consolidation in global strategic sectors and clean- and resource-efficient technologies and biotechnologies. The General Questionnaire also raises several key issues, such as:
- Whether the distinction between horizontal and non-horizontal mergers remains relevant.
- Whether separate guidelines for those mergers might be preferable.
- How the guidelines should incorporate considerations related to sector-specific regulations (telecommunications and energy) and industry characteristics (longer investment cycles or high innovation intensity).
The General Questionnaire seeks input on (a) the framework for assessing market power, including traditional factors; (b) their relevance and clarity; (c) the Commission's approach to evaluating anticompetitive risks; and (d) priority topics like innovation, sustainability, digitalization, and efficiencies.
B. In-depth Questionnaire
It delves into the detailed and technical aspects of EU merger control across various topics. The topics include:
a. Competitiveness and resilience: calling for reflection on whether EU merger control must be adapted to support start-ups, scale-ups, and medium-sized companies to scale up in global markets, while safeguarding a level playing field.
b. Assessing market power: examining structural indicators on market shares and concentration levels that provide guidance on where competition concerns are unlikely to arise ("safe harbors"), including whether the analytical frameworks for coordinated effects and foreclosure effects are fit for purpose.
c. Innovation and dynamic criteria: examining how mergers impact innovation and investment, aiming to refine the analytical framework for assessing potential competition loss and the failing firm defense.
d. Sustainability and clean technologies: focusing on sustainability and climate neutrality considerations, competitive dynamics linked to sustainability transition, and balancing sustainability benefits against competitive harm.
e. Digitalization: examining the need for extended forward-looking assessments to capture the effects of transactions in technology-driven markets. Privacy and data protection concerns are also raised, as they influence the credibility of alternative suppliers, particularly when data processing occurs outside the EU.
f. Efficiencies: focusing on the framework for assessing merger-specific efficiencies, including the clarity of current guidance, circumstances where efficiencies can outweigh harm, and the assessment of substantiality and likelihood of claimed efficiencies.
g. Public policy, defense and security, labor market considerations: grouping together public policy considerations - labor markets, media plurality, defense and security and impact on strategic sectors and infrastructures – as merger control indirectly supports broader goals.
Conclusion
The ambitious vision for the EU outlined in the Draghi Report called for significant changes to foster the right environment for growth, investment, and increased European competitiveness. The review of the EU MG will take over two years, but the Consultation provides some insights into key issues and potential changes, which could influence practice even before the new EU MG are officially adopted. So far, it seems that the revised EU MG may:
- Replace, in a single set, the current Horizontal and Non-Horizontal Merger Guidelines. It remains to be seen whether the ambition will be realized of actually carrying out a more nuanced analysis of transactions that do not fit neatly into a horizontal or non-horizontal box.
- Include more detailed treatment of competitive metrics beyond sales shares and market concentration. One would hope that proper account will be afforded in the new guidelines to consumer benefits and identified likely efficiencies arising from the transaction.
- Address market features (investment cycles and innovation intensity) and applicable regulatory frameworks to the assessment of notified transactions.
- Provide more guidance on parameters raising red or yellow flags on transactions and on hot-button issues (g., killer acquisitions, ecosystems in digital and tech transactions, plurality and AI in the media sector, privacy, mergers in the defense sector and buyer power in labor markets). The risk here is that the new guidelines fail to provide sufficient clarity (and therefore predictability) to parties, but rather create the opposite: uncertainty arising from a broader framework of analysis leading to more risk rather than less.
1 Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control of concentrations between undertakings (2008/C 265/07); and Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (2004/C 31/03).
2 Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation), Official Journal L 024, 29/01/2004 P. 0001 – 0022.
3 Mario Draghi, "The future of European competitiveness," available here.
4 POLITICAL GUIDELINES FOR THE NEXT EUROPEAN COMMISSION 2024−2029, available here.
5 EVP Teresa Ribera’s mission letter, 17 September 2024, available here.
6 A competitiveness compass for the EU, January 29th, 2025, available here.
