On May 8, the European Commission launched a public consultation to formally initiate the review of its EU merger guidelines.

With this review, the Commission aims to integrate new case law and market developments that have emerged since the adoption of the previous horizontal and vertical guidelines. This includes addressing the risks of 'killer acquisitions' and protecting future innovation when assessing mergers. The Commission had attempted to capture such problematic acquisitions by revising its approach to the EUMR’s Article 22 referral mechanism; however, the European Court of Justice struck down this policy move in its Illumina/ GRAIL ruling. The Commission is now seeking input on the theories of harm it could use to address the elimination of potential competitors through mergers.  

It appears that the traditional distinction between horizontal and non-horizontal merger guidelines is becoming obsolete. The Commission acknowledges that deals, especially in the digital and tech sectors, often raise issues in both areas because they involve the acquisition of complementary businesses or key inputs. The question now is whether the Commission will take the bold step of combining the two guidelines into one document. The emphasis on a holistic approach, as evidenced by consulting on horizontal and vertical guidelines simultaneously, suggests this might be the case.

What does the consultation focus on?

The Commission has clearly prepared this consultation thoroughly. The seven focus papers that accompany it highlight the priorities for the review, reflecting the current hot topics on the EU’s agenda. Given Commissioner Ribera’s background, it is unsurprising that the transition to a sustainable and climate-neutral economy plays a prominent role. The aim is to future proof merger control so that mergers support the objectives of the Clean Industrial Deal and do not obstruct sustainability goals. Interestingly, the Commission notes that 'green efficiencies' could potentially be recognized in the future, indicating a possible shift from the previously strict approach to the 'efficiency defence'. It is therefore requesting input on the methods and parameters to use when assessing green incentives and efficiencies. 

A dedicated focus paper on competitiveness is particularly noteworthy. This topic has been widely discussed since the Draghi report and it is valuable to see the Commission’s concrete thinking on this matter. On the one hand, the scaling up of companies in global markets is now viewed more positively and will be considered when weighing the benefits of a transaction against the competitive harm. In this context, the Commission mentions telecommunications and energy in particular.  On the other hand, the Commission reiterates that scaling up is not always the solution, with large established companies buying nascent competitors being a prime example.

As stated above, the Commission wants to shift the focus in merger control from scale as such to limiting market power. In the Focus Paper on assessing market power, it proposes to adopt rebuttable presumptions to more easily identify mergers harmful to competition, complementing the current “safe harbours”. This idea may not be universally welcomed, though. In some cases, the burden of proving that a transaction does not lead to anti-competitive effects would shift to the merging parties. However, the need to review the current framework for assessing coordinated effects is widely acknowledged. The Commission correctly states that market realities have changed and new guidelines must account for phenomena such as algorithmic pricing.

The Commission is clear in its view that merger control should not hamper further consolidation in the EU defence sector.  It will be interesting to see how the Commission integrates the topics of security and defence, given their sensitivity to Member States’ prerogatives and the exemption under Article 21(4) EUMR for public security grounds. 

What does this all mean?

In summary, the Commission’s approach to this review demonstrates that merger policy is no longer insulated from the EU’s strategic priorities and current hot topics, such as resilience to geopolitical tensions and supply chain vulnerabilities. The Commission will have to balance the promotion of these new priorities with the more traditional approach to competition policy – maintaining competitive markets within the EU and upholding robust competition enforcement. 

In a recent speech, Ribera announced a cautious approach, so we do not expect the review to constitute a reversal of previous merger policy. However, it will likely shift the interpretation of current rules and introduce more flexibility into the Commission’s assessment, which is a positive development.

Interested parties have until 3 September 2025, to comment and participate in the consultation.