In brief
The European Commission has published its long awaited draft Merger Guidelines, which will replace the 2004 Horizontal and 2008 Non Horizontal Merger Guidelines with a single framework. The text is still in consultation and will likely evolve at the margins, but the Commission’s overall direction of travel is clear.
At one level, the draft largely codifies existing practice, reflecting recent merger enforcement and case law (including CK Telecoms, Wieland Werke, Deutsche Telekom, Booking/eTraveli, Dow/DuPont, Bayer/Monsanto and Illumina/Grail). At this level, the draft is well articulated and useful.
But it goes further. The draft signals some clear changes in approach to testing deals for competition harms:
- A broader and more discretionary analytical framework that may make it easier for the Commission to intervene in some cases.
- More emphasis on non price parameters and additional theories of harm.
- And less reliance on traditional “safe harbours” such as market shares and Herfindahl-Hirschman Index (HHI) thresholds.
In parallel, the Commission clarifies the other side of the analysis with a “Theory of Benefit” approach. Efficiencies — particularly those linked to innovation, sustainability and resilience — are given greater prominence, alongside new concepts such as the “innovation shield”.
Stakeholder submissions are due in before 26 June 2026 and are likely to focus on improving workability; major adjustments appear unlikely. Two particular areas merit further consideration (i) clearer guidance on the role of traditional safe harbours and thresholds (including market shares, HHI and foreclosure-related benchmarks) to improve predictability, and (ii) more workable, less cumulative conditions for a new and helpful innovation shield.
Once adopted, the Guidelines are binding on the Commission in the sense that it is required to justify any departure from them. However, the Commission warns that it is required to enforce the EU Merger Regulation in any event.