Goodwin Antitrust Shorts: Fundamental EU Merger Guidelines Review

On 8 May 2025, the European Commission (“the Commission”) launched two public consultations as part of its comprehensive review of the guidelines for horizontal and non-horizontal mergers. For merging parties, the changes to the EU guidelines are likely to mean: 

• Updated assessment criteria: Merging parties will need to navigate new criteria that reflect current economic, legal, and technological contexts. This could affect how their mergers are evaluated and the types of evidence required.
• Broader policy considerations: Mergers will be assessed not only on traditional competition metrics but also on their alignment with broader policy goals, such as innovation, resilience, and sustainability. This means merging parties might need to demonstrate how their merger supports these objectives.
• Increased flexibility: The review process may become more adaptive, potentially speeding up merger assessments and allowing for more nuanced evaluations. Merging parties could benefit from quicker decisions and more tailored assessments.
• Enhanced stakeholder input: With greater emphasis on stakeholder feedback, merging parties will have more opportunities to influence the guidelines and ensure their concerns are addressed.
• Refined methodologies: Improved tools for evaluating market power, innovation impacts, and efficiencies will provide clearer guidance for merging parties, helping them better understand the likely outcomes of their merger proposals.
• Dynamic competition assessment: Merging parties will need to consider the long-term effects of their mergers on innovation and market resilience, ensuring their proposals support a competitive and forward-looking economy.

Background 

On 8 May 2025, the Commission launched two public consultations as part of its comprehensive review of the guidelines for horizontal and non-horizontal mergers. Given that the existing guidelines date back to 2004 (horizontal) and 2008 (non-horizontal), both sets will be reviewed simultaneously for the first time. Stakeholders must submit their feedback by 3 September 2025.

These consultations follow the Commission’s 25 March 2025 call for tender for an economic study on the dynamic effects of mergers, which will help shape the revised guidelines.

Why Is Reform Needed? 

The purpose of the merger guideline review by the Commission is multifaceted:

• Adaptation to economic changes: The review aims to update the guidelines to reflect significant shifts in the economy, such as digitalisation, globalisation, and decarbonisation. These changes have altered the competitive landscape, necessitating a more modern approach to merger control.
• Legal and judicial refinements: Since the guidelines were last updated, there have been important judicial developments within the EU that have refined merger control practices. The review seeks to incorporate these legal advancements to ensure the guidelines are legally robust and up to date.
• Alignment with broader policy goals: The review is also about aligning merger control with broader policy objectives, such as innovation, economic, social, environmental, geopolitical and digital resilience, and sustainability. This means considering how mergers affect not only price and nonprice competition but also, more broadly, public welfare and economic stability. 
• Enhanced stakeholder engagement: By inviting feedback from a wide range of stakeholders, including businesses, consumers, and experts, the Commission is ensuring that the revised guidelines will be comprehensive and reflective of diverse perspectives and needs.
• Improved methodologies: The review aims to refine the methodologies used to assess mergers, making them more effective in identifying anti-competitive effects and promoting a competitive economy. This includes updating criteria for market power, innovation impacts, and efficiencies.

Overall, the review is about making the EU merger guidelines fit for the future, ensuring they can effectively address the complexities of modern markets and contribute to a competitive, innovative, and resilient economy.

The revised guidelines are set for adoption in Q4 2027, but there is pressure for a faster process. Eight members of the European Parliament have urged the Commission to speed up the review, stressing that “such a lengthy timeline is not an adequate response to the urgent need of many companies operating within the EU.” Whether the Commission will adjust its schedule remains to be seen.

The Consultations and Key Focus Areas 

The consultation invites feedback through two streams:

• General consultation: High-level questions for a broad audience (citizens, businesses, consumer groups, etc.) on the guidelines’ role in promoting competition and their effectiveness in identifying transactions that could significantly harm competition in the internal market.
• In-depth consultation: Detailed questions targeting stakeholders with expertise in merger control, covering seven priority themes. The Commission has developed focused papers for each theme, highlighting key challenges and the legal and economic parameters guiding its merger assessments.

These papers provide technical insights and targeted questions to facilitate informed stakeholder feedback:

• Competitiveness and resilience: Examines how the current guidelines support a competitive economy, considering scale advantages, innovation, investment, security of supply, resilience, and globalisation.
• Market power: Evaluates structural indicators for market power and anti-competitive effects, and the effectiveness of the framework for assessing coordinated and foreclosure effects.
• Innovation and dynamic criteria: Assesses mergers’ impact on innovation and investment, including potential competition concerns, the failing firm defence, and the standard of proof and evidence on future market developments.
• Sustainability and clean technologies: Focuses on the growing interplay between competition, innovation, and sustainability.
• Digitalisation: Addresses the evolution of the digital economy, including competitive dynamics, challenges, and concerns in assessing digital mergers.
• Efficiencies: Examines the framework for evaluating merger-specific efficiencies.
• Public policy, defence and security, and labour market considerations: Addresses broader policy objectives that may be relevant to merger assessment.

Anticipated Changes 

The consultations suggests that the Commission may adopt a more flexible approach to its merger review, aligning it with broader policy goals such as innovation, resilience, and investment. The reforms aim to refine methodologies for assessing dynamic competition in evolving markets, enhance socioeconomic market assessments, and clarify evidentiary standards for determining market power and anti-competitive effects.

What Does This Mean for Merger Control in the EU?

The consultation marks a pivotal moment for merger control in the EU. By inviting broad and detailed feedback, the Commission is signaling a shift toward a more inclusive and adaptive framework. This means:

• Enhanced flexibility: The merger review process may become more adaptable to the rapid changes in the economy, particularly in sectors such as digitalisation and sustainability.
• Broader policy integration: Merger assessments might increasingly consider wider policy objectives, such as innovation, resilience, and public welfare, alongside traditional competition metrics.
• Improved methodologies: The reforms aim to refine the tools and criteria used to evaluate mergers, ensuring they are fit for the complexities of modern markets.
• Stakeholder engagement: Greater emphasis on stakeholder input ensures that the revised guidelines will reflect the diverse perspectives and needs of businesses, consumers, and other entities across Europe.

What’s Next? 

The Commission will gather feedback through interviews, expert opinions, and publications, engaging stakeholders, the public, and the EEA National Competition Authorities. A summary of the consultation responses, along with original submissions, will be published on the Commission’s “Have Your Say” portal. Additionally, a stakeholder workshop will be organised to review the draft guidelines before their formal adoption in Q4 2027.

Key Milestones in the Guidelines Review Process

Date                          Milestone

8 May 2025              Consultation period begins
20 May 2025            Deadline for the study’s proposals
21 May 2025             Public opening of the study’s proposals
25 May 2025            Publication of the study’s tender
3 September 2025   Consultation period closes
Q4 2027                    Planned adoption of revised guidelines

 

This informational piece, which may be considered advertising under the ethical rules of certain jurisdictions, is provided on the understanding that it does not constitute the rendering of legal advice or other professional advice by Goodwin or its lawyers. Prior results do not guarantee similar outcomes.