EU Competition Update – Merger Guidelines Review
The Topline
On Thursday 8 May 2025 the European Commission kickstarted its long awaited review of the policy framework by which it assess proposed mergers. This framework, consisting out of the horizontal merger guidelines (mergers between competitors or potential competitors acting in the same market) and non-horizontal merger guidelines (merges between companies in different levels of the supply chain), provides further implementation to the EU’s legal framework to assess mergers, the Merger Regulation (which is not part of the announced review). With this review the European Commission is looking to future proof and update its process for reviewing mergers, thereby looking to ensure that its assessment reflect the economic and EU policy realities of the present. In the words of the European Commission:
“The goal is to ensure the Guidelines are up-to-date in order to allow the Commission to continue to protect competition under the Merger Regulation in evolving market realities, while not intervening in transactions that do not harm competition. In addition, the revised merger guidelines should provide increased transparency and predictability to the business community as to how the Commission assesses mergers today.”
Both sets of guidelines stem from arguably bygone EU policy era’s, with the horizontal merger guidelines hailing from 2004 and non-horizontal merger guidelines from 2008. Critics argue that due to this the guidelines no longer prescribe to current economic paradigms and market conditions. This criticism is loudest when discussions focus on sectors that have seen significant change over the past 20 years – such as in digital markets that have seen incredible global growth and increase in economic power. Moreover, a geopolitical reorientation of the EU – shifting focus towards economic security and increasing the EU’s resilience in critical sectors such as telecoms, cloud and semiconductors – have reinvigorated arguments that merger policy should allow for more consolidation. For example, Mario Draghi argued for further consolidation in the telecoms sector by widening the market definition and increasing the attributed weight to innovation and investment commitments in his report “The future of European competitiveness”.
As first step in this process the European Commission has launched a call for evidence, general public consultation and in depth questionnaire – all closing on 3 September 2025 midnight CET. In addition to this, the European Commission launched a call for tender for an economic study on the dynamic effects of mergers on 25 March 2025 – which the deadline for submissions set on 20 May 2025.
The results of this process will feed into the review of the guidelines – culminating in the adoption of revised guidelines. The European Commission has indicated that the adoption is planned for Q4 2027.
The call for evidence, general public consultation and in depth questionnaire
Call for evidence
- The call for evidence allows stakeholders to provide broad feedback on the merger guidelines not driven by specific questions from the European Commission as guidance.
- Deadline: 3 September 2025 midnight.
General public consultation and in depth questionnaire
- The general public consultation and in depth questionnaire provide a more targeted approach in collecting feedback, with the in depth questionnaire adding another layer of depth to the general public consultation, comprising more complex questions and scenarios.
- Both the general public consultation and in depth questionnaire follow the same structure topic wise, starting with general questions about the person / company providing input and subsequently going into the below topics, ending with a broader question to provide feedback outside of these topics. Note that the in depth questionnaire combines the “Evaluation criteria” and “Competitiveness” topics into one topic labelled “Competitiveness and resilience” whereas the general public consultation treats these as two separate topics.
- Evaluation criteria: The first set of questions focus on whether or not the guidelines have overall proved to be accurate and coherent. To outline a number of questions, the consultation looks to establish whether the guidelines have been effective in identifying anti-competitive mergers, positively (or negatively) contributed to promoting competition, provide legal certainty, etc.
- Competitiveness: The second set of questions go into the competitive dynamics of mergers. The questions look for feedback on benefits created by the increased scale of merged companies and how these should be assessed when the merged entity creates market power or a dominant position, how the merger guidelines contribute to security of supply and EU resilience, etc.
- Assessing market power using structural and other market features: The third set of questions poses questions on how market power can be assessed. For example, what is the relevance of market shares and concentration levels, what factors are relevant to determine that a merger has resulted in a dominant position, etc.
- Innovation and other Dynamic Elements in Merger Control: The fourth set of questions focus on the role of innovation in assessing mergers. For example, to what degree the guidelines take into account the impact of mergers on innovation, how mergers can positively and negatively impact innovation, how incentives to innovate can be created within the context of mergers, etc.
- Sustainability and clean and resource-efficient technologies: The fifth set of questions go into the role of the merger guidelines to strengthen the transition to a more sustainable and climate-neutral economy. Example questions are what competitive dynamics are linked to the transition to sustainable and climate-neutral tech solutions, how the guidelines can better reflect the clean transition, how mergers can positively and negatively effect the green transition, etc.
- Digitalisation: The sixth set of questions focus on the role of digitalisation and its impact on mergers. For example, there are questions that go into whether the guidelines reflect the evolutions linked to the digitalisation of the economy, how digitalisation shapes the economy and the impact this has on the assessment of mergers, the impact digitalisation has on the timeframe in which the European Commission assesses mergers, etc.
- Efficiencies: The seventh set of questions go into the role of efficiencies created by mergers. For example, whether or not the guidelines correctly assess the role of efficiencies, whether certain efficiencies or specific to certain types of mergers, if and how efficiencies can counterbalance the negative impact on consumers caused by a merger, etc.
- Public policy, defence and security as well as labour market considerations: The final set of questions focus on the role of non-traditional factors in assessing mergers, such as labour market, defence and public policy considerations. Example questions on this go into the impact of mergers on labour markets, how mergers can impact either positively or negatively defence capabilities, etc.
- Deadline: 3 September 2025 midnight.
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