In brief
We welcome the draft Guidelines as a serious effort to modernise merger control for an economy that has evolved significantly in the last two decades. While the legal framework remains unchanged, the draft does expand the Commission's analytical toolkit. Our principal concern is ensuring this greater flexibility does not come at the expense of the predictability businesses need to transact with confidence.
In more detail
The draft is a serious and well-considered effort to modernise merger control. It reflects recent case law and enforcement practice, and recognises that competition is increasingly driven by innovation, investment and quality - not just price.
Importantly, the draft does not alter the legal framework. The Commission continues to bear the burden of proving a significant impediment to effective competition, and the evidentiary standards set by the EU Courts remain unchanged. The draft does not introduce formal presumptions that certain categories of mergers are inherently problematic.
What the draft does is expand the Commission's analytical toolkit. There is a clear shift towards future-looking analysis. Innovation-based theories of harm are more prominent. The Commission will pay closer attention to ecosystem dynamics, data advantages, labour markets and access to sensitive information. Market shares remain relevant, but they are no longer treated as the sole or even primary indicator in every market.
Many of these developments are sensible. Markets have evolved and the Guidelines need to evolve with them.
Our principal concern is therefore not with the direction of travel. It is with ensuring that flexibility does not come at the expense of predictability.
Dealmakers need to assess risk before signing. Investors need confidence that outcomes can be anticipated. The final Guidelines should therefore preserve clear evidentiary standards, maintain practical screening tools, and ensure that dynamic theories of harm are applied rigorously, not speculatively.
Several areas merit further refinement:
- Safe harbours and market share indicators: The draft reduces reliance on traditional market share thresholds. While shares should never be determinative on their own, they remain an essential tool for early-stage risk assessment. The final text should retain workable indicators that allow businesses to identify transactions unlikely to raise concerns.
- Guardrails for innovation and potential competition: The increased focus on dynamic effects is welcome. However, intervention must remain evidence-based. The Commission should act where future competition is likely, not merely conceivable. Clear guardrails will be essential to avoid overreach.
- Efficiencies need real weight: The expanded treatment of efficiencies is a positive development. But in practice, the bar remains high. If efficiencies, resilience and sustainability benefits are to play a meaningful role, the framework must make them achievable in real cases - not just available in theory.
From a practical perspective, the implications for dealmaking - particularly in the context of broader global enforcement trends - are already clear:
- Antitrust needs to start earlier. Risk assessment now goes well beyond market shares and overlaps. Innovation pipelines, ecosystem relationships, data assets and future competitive dynamics should be analysed at deal-design stage, not shortly before notification.
- Document discipline is critical. The Commission continues to place significant weight on internal documents. Business plans, board papers and investor materials must tell a consistent and credible story throughout the lifecycle of the transaction.
- Phase I is decisive. As the analytical toolkit expands, cases are increasingly won or lost early. Parties need a clear, evidence-based theory of the case from the outset, supported by proactive engagement with the Commission.
- Build the efficiencies and remedies case early. The draft places greater emphasis on merger benefits - but these will only carry weight if supported by contemporaneous evidence, detailed integration planning and credible delivery strategies.
Ultimately, the draft Guidelines do not represent a break with the past. But they do signal a more expansive vision of merger control - one that places greater weight on innovation, resilience and future competition alongside traditional metrics.
The debate now is not whether these factors matter. It is how to incorporate them in a way that remains rigorous but not rigid, and preserves the predictability businesses need to invest, transact and grow.
Should you wish to read our full response to the consultation, please click here.