On May 8, 2025, the European Commission (the “EC”) launched a public consultation on the EU Merger Guidelines (together, the “Guidelines”), which describe the framework applied by the EC to assess the competitive impact of horizontal and non-horizontal mergers (the “Consultation”).[1]  The Consultation responds to the Draghi Report’s call for “more forward-looking and agile” EU merger control that takes greater account of innovation and future competition in assessing mergers.[2] 

The Consultation represents the most significant measure implemented to date by Executive Vice-President and Competition Commissioner Teresa Ribera since she succeeded Margrethe Vestager in November 2024. Announcing the Consultation, Commissioner Ribera explained that “[t]his comprehensive and ambitious review of the EU merger guidelines is a unique opportunity to modernize the Commission’s framework for assessing the impact of mergers on competition. It will allow us to account for disruptive changes in our societies and our economies over the past 20 years, such as digitalization, and enable us to ensure that innovation, resilience, and the investment intensity of competition are given adequate weight in light of the European economy’s acute needs.”[3]

The Consultation’s review of the Guidelines is designed to take account of “transformational changes in the economy, ranging from digitalization and globalization to decarbonization,” to ensure that EU merger control remains “sharp and up to date,” and to provide a comprehensive, predictable, and lasting framework that offers “a refreshed yet legally and economically sound, predictable, and evidence-based analytical framework” while “preserving a vibrant and competitive internal market which drives companies to offer to their customers and consumers innovative, affordable, and high-quality products.”[4]

Initial Takeaways

  • The Consultation is detailed, indicating that the EC intends to undertake a thorough review of the Guidelines.  In addition to reflecting developments in the case law since the Guidelines were adopted, the Consultation suggests that the EC consider ways to take account of broader policy objectives, including innovation, resilience, investment, digitization, and sustainability.  It is unclear how any such considerations might affect the assessment of individual transactions, although the implication is that the EC might be more open to approving certain types of mergers than in the past.
  • The Consultation identifies a need for greater legal certainty on the assessment of market power and anti-competitive effects.  Among other things, it suggests clarifying the nature and level of evidence required and considers introducing rebuttable presumptions to distinguish transactions that would be presumed to be harmful from those that may not be expected to raise concerns. Although arguably consistent with the EU Courts’ jurisprudence, the adoption of any such presumptions could shift the burden to merging parties to prove that certain transactions would not distort competition, which could increase the burden on merging parties to obtain clearance.
  • The Consultation’s seeming recognition that mergers may impact innovation positively is welcome, as the EC has in the past focused largely on the potential for mergers to reduce innovation.  This evolution in the EC’s thinking suggests that the EC may be ready to expand the efficiencies defense provided for in the EU Merger Regulation to take greater account of innovation in weighing whether to approve a merger that might otherwise be prohibited because it was expected to harm consumers.

The outgoing Director-General of DG COMP, Olivier Guersent, has characterized the changes under consideration as being an “evolution, not a revolution.”[5]  Should, however, the EC decide to embrace the recommendations of the Draghi Report, in particular those concerning the approval of certain mergers that would previously have been challenged because of their expected positive effect on innovation and investment, the change to enforcement policy would represent among the most significant recalibrations of EU merger control since the EU Merger Regulation was revised in 2004.

Background and Context

The Consultation comes at a critical juncture for competition law enforcement in Europe.  As noted, it follows the Draghi Report, which called on the EC to strengthen the competitiveness of European companies by enhancing their ability to invest and innovate.  Specifically in respect of merger control, the Draghi Report proposed changes to the Guidelines to provide for a new “innovation defense” that would allow the EC to approve otherwise anticompetitive mergers that were expected to increase investment, innovation, and the scale needed for European companies to compete at a global level. 

The Draghi Report’s calls were endorsed by Commission President von der Leyen, who welcomed the Report as a blueprint for EU economic resilience[6] and called on EVP Ribera to “modernise the EU’s competition policy to ensure it supports European companies to innovate, compete and lead world-wide.”[7]  For her part, EVP Ribera acknowledged that the role of competition policy is “not exactly the same [as before], but something that needs to evolve and to adapt to the circumstances” and undertook to remove barriers to innovation and boost the EU’s competitiveness.[8]

Consultation

The EC has launched two parallel consultations, one directed at the general public, which seeks feedback from citizens, businesses, or associations on market and societal considerations affecting EU consumers, and an in-depth questionnaire that seeks feedback from stakeholders with technical merger control expertise on seven “specific topics” that are “relevant for the EC’s merger control assessments”: (1) competitiveness and resilience; (2) assessing market power; (3) innovation and other dynamic elements; (4) sustainability and clean technologies; (5) digitalization; (6) efficiencies, and (7) public policy, security, and labor market considerations:  

  • Competitiveness and Resilience explores how the Guidelines reflect the objectives of a competitive economy, including amongst others, merger-related scale advantages, innovation and investment factors, security of supply and economic resilience considerations, and the interplay of merger control and globalization.
  • Assessing Market Power examines structural indicators used to assess market power and anti-competitive effects, including whether the analytical frameworks for coordinated effects and foreclosure effects are fit for purpose.
  • Innovation and Dynamic Criteria focuses on evaluating the positive and negative impact of mergers on innovation and investment.  It also considers recalibrating the analytical framework for assessing a loss of potential competition and the failing firm defence.
  • Sustainability and Clean Technologies focuses on sustainability and climate neutrality considerations, competitive dynamics linked to sustainability transition, and balancing sustainability benefits against competitive harm.
  • Digitalization addresses digital economy-related evolutions, including new competitive dynamics linked to digitalization, cross-market effects in digital mergers, and assessment timeframes in technology-driven markets.
  • Efficiencies examines 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.
  • Public Policy, Defence and Security, Labor Market Considerations covers public policy considerations—such as labor markets, media plurality, defense and security, and impact on strategic sectors and infrastructures—that may be relevant to merger assessment.

The Consultation also seeks feedback on the Guidelines’ effectiveness, efficiency, relevance, coherence, and value.  Questions include whether they correctly identify anti-competitive transactions, how they contribute to promoting competition, and their comprehensiveness, certainty, and transparency.

Next Steps

The EC invites comments by September 3, 2025.  After assessing responses, the EC plans to continue targeted engagement with stakeholders, including through dedicated events and workshops.  Stakeholders will also be able to comment on proposed revisions to the Guidelines.  The EC expects to adopt revised Guidelines by the end of 2027.[9]

[1] European Commission, “Review of the Merger Guidelines”, available here.  

[2] See Mario Draghi, “The future of European competitiveness,” September 2024, Part B, pp. 299-300, available here (the “Draghi Report”).  For a more detailed discussion of the impact of the Draghi report on EU merger control, seeN. Levy, E. Chutrova, A. Wierzbicka, “The Draghi report and competition policy: Part II. How the Draghi report may impact EU merger control”, Concurrences, February 2025, Concurrences N° 2-2025, Art. N° 123673, available here.

[3] Commission Press Release, “Commission seeks feedback on the review of EU merger guidelines,” May 8, 2025, available here.

[4] European Commission, “Review of the Merger Guidelines”, available here.  

[5] F. McClimont. “Guersent: EU Antitrust Enforcement Aims to Be ‘Boringly Predictable’.” GCR, February 27, 2025, available here.

[6] Ursula von der Leyen, Statement by President von der Leyen at the joint press conference with Mario Draghi on the report on the future of EU competitiveness, September 9, 2024, Brussels, available here.

[7] Ursula von der Leyen, Mission Letter to Teresa Ribera Rodríguez, September 17, 2024, available here.

[8] Henry Foy, Javier Espinoza, and Alice Hancock, “EU’s new competition chief: European companies must scale up for global fight”, Financial Times, 19 September 2024, available here.

[9] European Commission, Merger Guidelines – Review, available here.