In April 2026, the EC launched a consultation on the Draft Merger Guidelines. We submitted our observations last week, which we summarize below.
A Welcome Evolution
We welcome the EC’s consolidation of the Horizontal and Non-Horizontal Merger Guidelines in Draft Merger Guidelines that reflect the Commission’s decisional practice and jurisprudence of the EU Courts over the past 20 years and take account of the Draghi Report’s recommendation that the Commission consider scale, innovation, investment, resilience, sustainability, and security in assessing mergers.
In particular, we welcome three specific features of the Draft Merger Guidelines: (i) the emphasis given to assessing the counterfactual; (ii) the importance attached to dynamic competition; and (iii) the recognition that mergers may generate efficiencies and increase innovation. By introducing a “theory of benefit” alongside the theory of harm, the EC has rightly shifted efficiencies from a rarely invoked defense to a central part of its analytical framework, sending a positive signal to companies contemplating mergers that will enable the EU to compete more effectively on a global basis.
Main Recommendations
Our comments and recommendations focus on six areas. They are designed to ensure predictability and legal certainty.
- Legal certainty. Toenhance legal certainty and predictability, we recommend that the Commission: (i) make clear that the EC bears the legal burden of proving a significant impediment to effective competition based on clear and compelling evidence; (ii) clarify that factors such as high margins, ecosystem features, or dynamic capabilities may be relevant evidence, but are less reliable indicators of market power or harm and should not create presumptions; (iii) treat prior findings in the same or similar markets as the starting point for the EC’s assessment, absent a good reason for departure; and (iv) introduce safe harbors and/or other screening criteria to confirm that parties are not required to address every conceivable theory of harm.
- Evidence and procedural safeguards. To ensure evidentiary discipline, we recommend that the Commission: (i) clarify that the EC’s assessment should rest on a cogent and consistent body of evidence, particularly when the theory of harm is novel or rests on assumptions about future conduct; (ii) confirm that reliance on a single item of documentary evidence should be an exception, not a general rule; (iii) assess internal documents together with economic and other empirical evidence, taking into account their context and purpose; and (iv) explain how the EC will assess and test the reliability of third-party evidence.
- Safe harbors and screening criteria. To ensure that the Draft Merger Guidelines do not weaken existing safe harbors and screening criteria, we recommend that the Commission: (i) restore the pre-existing market-share and Herfindahl-Hirschman Index-based safe harbors, including the 30% market share threshold for non-horizontal mergers; (ii) clarify the exceptional circumstances in which transactions falling within a safe harbor may nevertheless be investigated; and (iii) raise the safe harbor threshold for non-controlling minority shareholdings.
- Theories of harm need clear analytical frameworks. To ensure legal certainty concerning the theories of harm set out in the Draft Merger Guidelines, we recommend that the Commission: (i) retain the horizontal/non-horizontal framework; (ii) restore clear safe harbors and screening criteria; (iii) define clear legal tests and evidentiary standards for novel theories of harm; (iv) preserve the ability–incentive–effects analytical framework for non-horizontal mergers; (v) simplify – and expand the application of – the innovation shield concept; and (vi) refrain from codifying the entrenchment theory of harm until the EU Courts have ruled in Booking/eTraveli, or at least introduce clear limiting principles to its application.
- Symmetrical assessment. The introduction of a “theory of benefit” is a welcome development, but should be assessed under a framework that mirrors the assessment of theories of harm. We recommend that the Commission: (i) confirm that a “more likely than not” standard of proof applies to both harms and benefits; and (ii) clarify the relationship between the theory of benefit and the traditional efficiencies analysis.
- Efficiencies should be workable in practice. To provide greater clarity on efficiencies, we recommend that the Commission: (i) clarify that credible qualitative evidence may be sufficient where precise quantification of dynamic efficiencies is not reasonably possible (as is the case with theories of harm); (ii) adopt a more flexible approach to the time horizon for efficiencies, merger-specificity, and out-of-market benefits; and (iii) ensure that efficiencies are appropriately reflected in the design of remedies.
If you’re interested in reading our full response, you can find it here.