Time to catch up: EU reopens the rulebook on mergers and seeks feedback

Mounting pressure to refresh merger guidelines

When the European Commission (Commission) introduced its first guidelines on the assessment of horizontal mergers in 2004, the digital economy was in its infancy, smartphones were rare, people still bought CDs, sustainability was a niche concern, and a “cloud” was something in the sky. Now the time has clearly come for a fresh look and Commissioner Ribera was tasked with a review of the guidelines, which “should give adequate weight to the European economy’s more acute needs in respect of resilience, efficiency and innovation, the time horizons and investment intensity of competition in certain strategic sectors, and the changed defence and security environment”.

On 25 March 2025, the Commission launched a call for tender for an economic study on the dynamic effects of mergers. Last week, on 8 May 2025, the Commission took the next step and launched a consultation (link) to update the guidelines against the background of a vastly different market landscape shaped by digitalisation, rapid technological change, globalisation, and other developments such as an increased focus on sustainability and significant geopolitical shifts. The consultation also reflects the call in the Draghi Report for “radical changes to the current way competition policy is enforced” and the view that updated guidelines are needed to “make the current Merger Regulation fit for purpose.” The Commission’s consultation also broadly reflects two other documents that summarize the key action items from the Draghi Report – the Competitiveness Compass, which noted that “innovation-led productivity” will be needed for Europe to “shift to a higher gear”, and the Clean Industrial Deal which identified competitiveness and economic resilience as the key issues to address.

As the market trends that shape today’s economy and impact the dynamics of competition apply to all types of transactions, the Commission is proposing to adapt both its horizontal and non-horizontal merger guidelines in a single document to provide a refreshed framework and a more “holistic approach”. In the words of Olivier Guersent, Director-General of DG COMP, this approach aims to be more “comprehensive and accurate and useful for practitioners” as it will allow the Commission to “show the links in a more effective way”.

Towards a more robust and predictable framework?

The Commission’s consultation demonstrates a desire to adapt the EU merger assessment to today’s realities. Many of the areas under review — such as assessment of market power, promoting growth, and the role of innovation — were expected. While most points seem to be aimed at formalising the criteria that the Commission has already been applying to date, others go significantly further and are more or less novel (e.g., the effects on labour market, economic resilience, environmental sustainability, and broader societal impact of mergers).

In the materials that accompany the consultation, the Commission typically does not take firm positions on topics that have not yet been developed in the decisional practice. Statements highlight positive and negative ways in which the relevant topics can be factored into a merger review. It is therefore too early to tell to what extent the goalposts will truly shift, at least until the draft guidelines are published, which will likely only happen in 2026. As the legal test in the EU Merger Regulation is not subject to review, there is a limit on the extent to which a refresh of the guidelines can change the substantive approach to EU merger review. However, if the promises of the Draghi Report on innovation and growth in Europe are to be given some weight, the new guidelines should provide clear and explicit direction – particularly in articulating how they envisage a more open and flexible approach, for instance with regard to parties demonstrating procompetitive efficiencies.

Finally, while it is commendable that the Commission is aiming for a holistic and modern approach to competition policy by implementing a more robust framework that is more predictable for dealmakers, this should not be used to introduce potentially novel concepts, such as the suggestion to shift the burden of proof, that would stretch (or distort) the proper purpose of the EU merger control regime, and risk (being perceived as) stifling merger activity in circumstances where it is recognised that consolidation is needed in some areas.

Two-pronged consultation encouraging broad stakeholder engagement

To allow all stakeholders to contribute their perspectives, the consultation is structured in two parts.

• First, a “General Consultation” with high-level questions explores whether the current framework remains fit for purpose in a changing economy and the principles that should underpin the revised guidelines. The consultation focuses on seven specific topics: (i) competitiveness and resilience, (ii) assessing market power using structural and other market features, (iii) innovation and other dynamic elements, (iv) sustainability and clean technologies, (v) digitalisation, (vi) efficiencies, and (vii) public policy, security, and labour markets.
• Second, a parallel “In-Depth Consultation” focused on technical parameters and aimed at “stakeholders knowledgeable in merger control”. The Commission has published a topic paper on each of the seven specific topics raised in the General Consultation, recalling how it carried out its assessment so far and including a set of technical questions. Details on each of these papers are included (here).

The key points on which the Commission is consulting include:

• The Commission’s proposal would potentially shift the burden of proof in some circumstances and require the parties to adduce “particularly strong evidence” showing that a transaction does not lead to anticompetitive effects. The Commission believes that this could be a viable strategy for identifying problematic mergers more efficiently.
• The EU’s overall security of supply could play an important role in merger assessments going forward. Dealmakers may benefit if they can evidence that their transaction will reduce the EU’s reliance on external supplies of critical inputs or strengthen the EU’s security and defence capabilities. Geopolitics might thus start playing a more important role in EU merger reviews.
• The Commission aims to establish a robust framework in which innovation and more dynamic aspects of competition can be thoroughly factored into a merger control assessment.
• The Commission signals a willingness to consider benefits to consumers from “new or improved products or services or their faster roll-out, which is often the result of investment and innovation (‘innovation efficiencies’)” and efficiencies that result in "improved sustainability and, under specific circumstances, out of market efficiencies”. The consultation explores what evidence should be required to prove such efficiencies and the relevant timeframe in which they should be considered.
• The consultation opens the door to recognising harm to labour markets — via lower wages or worse conditions — as a standalone theory of harm in merger assessments, even without downstream consumer harm. This would align the EU approach more closely with US merger control, which, since 2023, explicitly considers labour market effects.
• The consultation asks whether a clearer framework for assessing mergers in the defence and security sectors, including those concerning dual-use goods, is required.

Pressure in various jurisdictions to consider how merger policy could support policy objectives

The Commission’s consultation comes at a time when many competition authorities globally are re-evaluating their approach to merger control and are under increasing pressure to consider how competition law can be used to realise other policy goals, such as economic growth, the fight against inflation, resilience, security, sustainability, etc.

In the UK, the CMA, which had previously refreshed its merger guidelines in 2021, has now been tasked by the Government to harness its tools to support and contribute to the “overriding national priority” of economic growth and to enhance the attractiveness of the UK as a destination for international investment (see our blog here). In doing so, the CMA has so far principally focussed on procedural issues, setting out plans to narrow its reach, conduct cases more efficiently, and improve engagement with business. That being said, in its recent consultation (see our blog here), the CMA opened the door to looking at how pro-competitive efficiencies could be better taken into account in merger review, meaning that the CMA and Commission are now both actively considering an increased role for efficiencies, particularly for transactions that advance broader policy objectives.

In the US, the Biden Administration sought to reinvigorate merger enforcement with the introduction of new merger guidelines in December 2023 (see our blog post here). These merger guidelines, which have been subsequently embraced by the Trump Federal Trade Commission (FTC) and Department of Justice (DOJ), address a wider range of potential competitive harms resulting from M&A . Many of the analytical reforms introduced in these merger guidelines align broadly with the issues contemplated by the Commission’s consultation. In particular (i) introducing new and significantly lower structural presumptions for what constitutes a “highly concentrated market” to “better reflect both the law and the risks of competitive harm”, (ii) establishing an explicit frameworks to assess harms to “actual potential competition” or “perceived potential competition” resulting from mergers, and (iii) highlighting the potential for anticompetitive harm in the context of labour markets, which was not historically an area of focus in merger review. Outside of formal merger guidance, agency leadership under Trump have endorsed the view that competition law can be used to address some issues highlighted in the Commission’s consultation—including media plurality (e.g., censorship) and the protection of America’s ability to compete globally—while disavowing its role in other areas such as environmental sustainability.

Opportunity for businesses to have a say

The Commission’s consultation runs until 3 September 2025 and provides an opportunity for businesses to have their say on how the EU’s merger control regime should be enforced in the future. If you are considering responding to this public consultation, please do get in touch with our team or your usual Freshfields contact.

As the next step, the Commission will publish the submitted contributions and main conclusions. Later in the process, the Commission will organise a workshop to provide stakeholders with an additional opportunity to comment on the draft guidelines before their adoption, which is planned for the end of 2027.

In the meantime, the pressures that have led to the update of the guidelines may well influence the Commission’s approach to reviewing ongoing transactions, particularly those that touch upon the topics addressed in the consultation.