Introduction

In May 2025, the Commission launched a public consultation on possible reforms to its merger guidelines, covering seven core topics that underpin how the Commission assesses the competitive impact of mergers.[1] On October 29, the Commission summarized the main trends of the 243 responses[2] it received.[3] The highlights are as follows:

A. Competitiveness and Resilience[4]

  • Dynamic assessment and clearer guidance. Support for a more dynamic approach that considers transactions’ impact on innovation and investment incentives, resilience, quality, choice, SME scale‑up, and firms’ ability to compete globally, but respondents ask for clearer guidance on how to conduct this assessment. 
  • Importance of scale. Scale can drive high-risk innovation, investment and improve access to equity investments, particularly in sectors with high fixed costs, rapid technological advancements, network effects, or economies of scale. However, these benefits are considered relevant only where they demonstrably outweigh potential anti-competitive effects, and NCAs are generally sceptical when a merger would increase market power.
  • Divergent views on policy objectives. While some respondents urge that innovation, resilience, and competitiveness should become explicit policy objectives of merger control, others warn against going beyond the EUMR mandate and insist that competition remains the primary driver of innovation, investment, and resilience.

B. Assessing Market Power Using Structural and Other Market Features[5]

  • No legal presumptions based on structural indicators. Broad agreement that market shares and other structural indicators are a useful first screen for market power, but should not give rise to a legal presumption. 
  • Appropriate evidence. Respondents propose that the same evidence should be used to establish whether a merger will lead to a significant impediment to effective competition regardless of whether the merged entity will have a dominant position, whilst stressing the importance of a case-by-case forward-looking analysis to account for the dynamic elements of competition.
  • Non-horizontal framework fit for purpose. Respondents generally consider that the current framework and guidelines for assessing foreclosure risks in non-horizontal transaction remain appropriate.

C. Innovation and Other Dynamic Elements In Merger Control[6]

  • Impact on innovation and investment. Clear need for a case-by-case assessment of mergers’ impact on innovation and investment levels, including short- and long-term effects, and industry-specific factors. While some respondents emphasized that mergers can allow start-ups to scale up faster, a large number of respondents highlighted that mergers can negatively impact innovation and investment through reduced innovation rivalry, so-called killer acquisitions, and foreclosure of access to critical innovation inputs or resources.  
  • Loss of potential competition and entry as a countervailing factor. Call for improved guidance on the criteria for assessing the loss of potential competition as a theory of harm. While some respondents called for alignment with the criteria for potential entry as a countervailing factor, most respondents called for distinct legal standards as the two address different concerns.
  • Counterfactual should be dynamic. Broad support for a flexible, forward-looking framework that reflects sector-specific conditions and longer-term market developments, with a case-specific timeframe for assessing the impact of a merger. Split views on whether to increase the evidentiary standard as uncertainty stemming from the forward-looking analysis increases.

D. Decarbonization, Sustainability and Clean Technologies[7]

  • Sustainability as a parameter of competition. Broad support for sustainability as a non-price parameter of competition where relevant, and many submit that the current framework is sufficiently flexible for that purpose.
  • Quantifying the sustainability impact. Differing views on how impact should be assessed: some require specific metrics, while others prefer a more flexible approach.
  • Consumer benefits. General request to recognize out-of-market efficiencies beyond affected consumers and longer timeframes for the benefits to occur.

E. Digitalization[8]

  • Better reflect market realities and theories of harm. Market realities linked to digitalization – such as network effects, customer inertia, and data-driven competition – should be reflected in the guidelines. So should related theories of harm such as market power entrenchment, potential competition and ecosystems, interoperability degradation, and partial foreclosure.
  • Framework of assessment. Having separate frameworks for assessing horizontal and non-horizontal mergers remains valid, but a more flexible interpretation is needed if the lines between the two are blurred. Respondents were divided as to whether the framework for conglomerate mergers should be adapted to assess the effects of digital and tech mergers.
  • Data accumulation and privacy considerations. Data accumulation can raise competition concerns where it is an important input or provides a competitive advantage, but the value of the target’s data should not be considered in isolation. Relatedly, privacy and data protection should be considered as non-price competitive parameters in cases where companies seek to differentiate themselves based on privacy protection, and consumers prioritize and care about data privacy.

F. Efficiencies

  • Increased flexibility in applying current framework. The existing three-pronged test to assess efficiencies is fit for purpose but its current application is overly restrictive. Respondents generally agree that all types of mergers can be a source of efficiencies and that the Commission should adopt a more flexible, dynamic approach that goes beyond price effects to capture innovation, investment, and quality-related efficiencies. 
  • Recognize non-price and out-of-market efficiencies. Many respondents favor recognizing non-price efficiencies that take longer to materialize and/or that extend beyond the relevant market depending on a case- and industry-specific timeframe.
  • Alignment of standard of proof. Respondents broadly consider that that the standard of proof for efficiencies should be aligned with the test for identifying competitive harm. Respondents consider that qualitative evidence should also be considered for non-price efficiencies or where there is a degree of uncertainty.

G. Public Policy, Security and Labor Market Considerations

  • Security and defense. Respondents generally agree that security and defense should be reflected in the guidelines, but are divided on whether it is more appropriate that this strategically important sector is addressed in standalone guidance.
  • Media plurality. Democracy and media plurality concerns are not adequately addressed at present; media plurality could be treated as a legitimate interest and possibly a parameter of competition. Some respondents also highlighted a tension between the interaction of EU merger control with other legislative acts that may impact media plurality (e.g., European Media Freedom Act).   
  • Labor markets and workers. Divided opinions on whether effects on labor markets fall within the scope of the EUMR.

Next steps in the consultation process are two interactive technical stakeholder workshops on December 4 and January 20 at which the Commission seeks feedback on key aspects of its review. It will also organize a conference on the future of EU merger control on March 5 to discuss key aspects. The Commission will publish draft guidelines in spring 2026 and aims to adopt the guidelines later that year or early 2027. This accelerated timetable is a response to criticism that the Commission was moving too slowly.

[1] See, our May 12 alert: The European Commission Launches Wide-Ranging Review of EU Merger Guidelines, available here.

[2] For a summary of our response, see, our September 5 alert: EU Merger Guidelines Consultation – Our Views on Possible Reforms, available here.

[3] DG Comp Working Document, available here, and Factual Summary available here.

[4] See, our September 18 alert: EU Merger Guidelines Consultation – Our Views on Competitiveness & Resilience, available here

[5] See, our September 29 alert: EU Merger Guidelines Consultation – Our Views on Assessing Market Power, available here

[6] See, our October 8 alert EU Merger Guidelines Consultation – Our Views on Innovation and Other Dynamic Elements in Merger Control, available here

[7] See, our October 16 alert EU Merger Guidelines Consultation – Our Views on Sustainability and Clean Technologies available here

[8] See, our October 30 alert EU Merger Guidelines Consultation – Our Views on Digitalization available here