New European Commission Consultation on Merger Rules: A Pivotal Moment?

Overview

The European Commission has recently announced a new public Consultation on the rules it uses to review mergers.

The Consultation is extremely wide-ranging in its themes and questions being raised to fuel the revision process of the current EU guidelines, both for horizontal and non-horizontal mergers. The Commission's objective is to collect facts, views and evidence to "ensure that the Merger Guidelines are fit for today's fast-changing economy and future challenges while providing a steady and predictable framework for M&A." Given that the Commission's current merger guidance is nearly two decades old, it is hardly surprising that a refresh is required. However, the Commission appears to be looking for more than a quick update, showing a fresh willingness to take a more positive approach on merger defences that to date have not been fully explored such as efficiencies, sustainability goals, customer/supplier resilience etc.

This overview flags the key points in the Consultation so that businesses can make the most of this welcome opportunity to advocate adjustments which could facilitate transaction approvals. The Consultation period expires at the beginning of September 2025 but no time should be wasted. Structuring responses will need careful consideration to ensure important feedback is persuasively communicated. This is especially challenging given the holistic nature of the Consultation and the two separate but overlapping pillars of the questionnaires which might risk information getting lost in the labyrinth of questions and issues up for discussion. 

Background

Mario Draghi, the former European Central Bank President called for the Consultation in a landmark report ordered by the Commission and published in September 2024. The Draghi report proposed various steps to make Europe more sustainable and competitive, including a "change in operating practices and updated guidelines to make the current Merger Regulation fit for purpose".

The Draghi report was immediately endorsed by the President of the Commission, Ursula von der Leyen, indicating that it should shape the next EU Competition Policy Agenda. In its response to the Draghi Report, the Commission's Competitive Compass of January 2025 noted that the EU needed "revised guidelines for assessing mergers so that innovation, resilience and the investment intensity of competition in certain strategic sectors are given adequate weight in light of the European economy's acute needs". In the mission letter to the new Commissioner for Competition, Teresa Ribera, the need to prioritise reviewing the existing horizontal merger control guidelines was mentioned, and in a speech in March 2025, Ribera announced that the Commission would "soon launch a revision process covering both the horizontal and the non-horizontal merger guidelines".

Summary of the Consultation

The Consultation comprises general questions alongside a deeper dive into seven specific topics. The general consultation allows respondents to share their experiences and ideas about how mergers should be analysed. Answers can be brief or longer including via attachments. The seven topics singled out for deeper scrutiny are:

• Topic A - Competitiveness and resilience: Twinning competitiveness with resilience in the Consultation reflects a recent policy trend. The Draghi Report suggested strengthening Europe's resilience by allowing bigger EU players better to compete with non-EU rivals, safeguarding EU based minimum industrial capacity for essential inputs, or bolstering the EU's security and defence tools. Views are in particular expected on so-called “scale efficiencies” and the best way to ensure that merger control supports companies trying to scale up in global markets while safeguarding a level-playing field within the EU. Questions range from the precise scale benefits to be considered, to the way the Commission should take these into account, and to which point these should outweigh potential competitive harm.
• Topic B - Assessing market power using structural features: These questions align closely to the Commission's recently updated draft Guidelines on exclusionary abuses of dominance. These note that market shares might not always accurately reflect market power. In this spirit, the Consultation asks about increasing the use of rebuttable presumptions to differentiate mergers where the circumstances could indicate an increased likelihood of competitive concerns, from those which are perceived as less detrimental.
• Topic C - Innovation and other dynamic elements: This section focuses on a firm's ability and incentive to invest and innovate, as well as to enter or exit a market in the mid-to-long term. The Draghi report put the topic of innovation squarely on the table, suggesting that innovation arguments should be allowed in EU merger analysis when parties are for example, planning to pool their resources in a way which will increase competition. The Commission's questions pick this up asking for comments on the way mergers can negatively, but also positively, impact the ability and incentives to innovate. It is also interested to hear views on how to integrate future market developments and potential entry.
• Topic D - Sustainability and clean technologies: Given the Commissioner's portfolio covering both competition and the green transition, it is not surprising to see this topic singled out. This aligns with the Commission's horizontal agreements guidelines, which since 2023 have included a section on when competitor co-operation might be treated more leniently in the context of sustainability agreements. The Consultation stresses that some mergers may support climate and technology objectives, including by providing the leverage needed to invest in cleaner technologies and asks for concrete examples and underlying data to support that view. This topic also raises the question of whether and how hardly quantifiable efficiencies bringing benefits on a broader scale than the markets concerned by a merger can be taken into an account in its assessment. 
• Topic E - Digitisation: These questions build on the experience the Commission has from both its merger and wider digital markets work. For example, questions refer to concerns linked to obstacles to entry, ecosystems, data accumulation and interoperability degradation. Of note is the Commission seeming not to focus so narrowly on the concept of exclusion or foreclosure in these kinds of cases given the unique structures, dynamics and power in play.
• Topic F - Efficiencies: the Consultation recognises the complex balancing needed to take efficiencies into account in a merger assessment, and seems open to allowing this more. Parties are given the chance to discuss how the Commission might better consider in and out of market efficiencies. The evidence transacting parties will need to bring to convince the Commission about efficiency gains is up for discussion, along with the timeframe for efficiencies to be realised.
• Topic G - Public policy, security and labour market considerations: The last topic is probably the most unexpected as it deals with how merger control should take account of broader public interests and common objectives. It opens the debate to a wide range of goals, including the balancing of competition and defence interests, the protection of media plurality or the impact of mergers on labour markets. In respect of the latter, it suggests a potentially increased ability for companies to raise labour considerations such as job preservation in defence of a merger, marking a radical departure from the status quo. Of equal interest to the Commission is the relevance of concerns that a merger risks reducing salaries or otherwise disadvantaging employees. Such questions are indeed already more integrated in the merger regimes of some EU Member States, e.g. in France.

Although the Commission has published seven separate papers and questionnaires on the topics above, in reality, these issues often overlap. For example, mergers in digital markets often trigger innovation benefits and may raise public policy concerns. Similarly, the Commission notes that to date, it "has also assessed efficiencies dealing with new ‘green’ products, technology or innovation that result in improved sustainability." These topics are so cross-cutting and pervasive in modern markets that not only merger guidelines, but also other guidance might eventually need updating (e.g. framework for the assessment of coordinated effects, or Remedies Notice). Piecing together the feedback from the different questions in this Consultation will be a challenge for the Commission.

Key takeaways

The changes proposed seem to go a long way to improving the EU's merger regime. Responses have the potential to usher in a new dawn for EU merger control:

• The breadth of the Consultation is staggering – over 100 pages of open questions effectively allowing parties to send in views on all aspects of merger analysis. The Consultation does not shy away from sensitive and challenging topics. This is the time to raise new ideas and topics.
• The recent Consultation is part of a broader call for evidence, which also encompasses a call for tender for an economic study on the dynamic effects of mergers. Casting the net wide for information is welcome at this stage, but amongst the mass of subjects put on the table for discussion in the Consultation, businesses should consider which are the issues of highest priority for their M&A activity and reflect how to use this Consultation to their advantage.
• The Consultation also calls for comments on how many of these issues can weigh negatively on the assessment and it is to be expected that new theories of harm will also be developed further in this process. Respondents need to be careful when deciding the subjects to push for, remembering that increasing the range of issues allowed in scope might ultimately work to their advantage or disadvantage.

The Commission will decide its next steps once feedback from the Consultation is collected and analysed. Final changes are not expected to be adopted before 2027, but the issues put on the table by the Consultation are open for use by parties with immediate effect in their dealings with the Commission and National Competition Authorities in the EU.

Mayer Brown's European Antitrust & Competition team comprises lawyers with a thorough knowledge of EU merger laws and procedures as well as extensive experience of dealing with enforcers at national and EU level. Please reach out to us to discuss any of the issues summarised above in more detail.