EU Merger Guidelines Consultation – Our Views on Efficiencies

By Robbert Snelders, Romi Lepetska, Amaryllis Müller, Alix Anciaux, Devi Bragalini, Sanjay Kommu, Giancarlo Piscitelli, Ambroise Simon & Kimia Vaye on November 6, 2025

As part of our response to the European Commission’s consultation on possible reforms to its merger control guidelines,[1] we provided our views on Topic Paper F – Efficiencies.

We proposed improvements to the overall assessment of efficiencies and the interpretation of the three prongs of the efficiency test of consumer benefits, merger-specificity, and verifiability.

A. The Commission’s current approach to efficiencies

Most mergers will generate efficiencies. Yet, the Commission’s traditional assessment of efficiencies is unduly restrictive, particularly as it:

focuses on short-term efficiencies in the form of price benefits, whilst discounting longer-term efficiencies in areas such as innovation and sustainability;
applies a rigid standard of proof for efficiencies, which significantly exceeds the standard applicable for identifying competitive harm; and
rejects out-of-market efficiencies despite their potential impact on society and the European economy.

This approach is inconsistent with the recognition under the EU Merger Regulation (“EUMR”) that mergers may generate efficiencies,[2] and the Court’s recognition that merger assessment should be conducted without bias towards either clearance or prohibition.[3]

To date, the Commission has not cleared any merger exclusively based on efficiencies and has only acknowledged the positive effects of efficiencies in few cases.[4] Merging parties are thus deterred from making detailed efficiencies arguments in practice (particularly during Phase 1) given the very low probability that such arguments will succeed and the (perceived) risk that doing so will signal weak arguments on the absence of anticompetitive effects.

B. Our proposal

We propose to improve the overall assessment of efficiencies, enabling the Commission to carefully and properly assess whether claimed efficiencies can wholly or partly offset any anticompetitive effects, so as to warrant unconditional clearance or reduced remedies:

Consider efficiency claims in parallel to the Commission’s assessment of a Significant Impediment to Effective Competition (“SIEC”) — not merely at a later stage after a SIEC has already been identified.
Align the evidentiary standard between efficiencies and competitive harm, by applying equal analytical rigor and accepting similar types of evidence for both.
Adopt more flexible, industry-specific timeframes for assessing merger efficiencies, rather than focusing predominantly on short-term benefits.
Investigate efficiency claims during the Commission’s market test when merging parties have at least prima facie demonstrated such claims to the best of the information available to them. Without overturning the burden of proving efficiencies – which remains with the parties – the Commission is better positioned to retrieve information from customers and other stakeholders (including sectoral regulators).

Although the established three-pronged test for assessing efficiencies should be maintained, there is room for its more balanced and pragmatic application. In particular, we propose the following refinements:

Consumer benefits	Broaden the scope of relevant efficiencies by (i) including any (fixed) cost reductions that would ultimately be passed onto consumers, even if not immediately, and (ii) widening the circumstances under which such efficiencies may be accepted, encompassing factors such as strategic autonomy, innovation, and sustainability-related benefits, including those that deliver value to consumers beyond the directly affected markets.[5]
Merger-specificity	Align the counterfactual for efficiencies with that used for assessing competitive effects, thereby avoiding the current formalistic approach that treats entirely different forms of business cooperation as alternatives to a transaction.
Verifiability	Align the evidentiary standard for demonstrating efficiencies with the “balance of probabilities” standard (more likely than not) for anticompetitive effects and treat both with the same analytical rigor. Consider both quantitative and qualitative evidence, with precise quantification being probative but not indispensable. The Revised Guidelines should also integrate efficiencies into remedy design by (i) explicitly considering efficiencies at the remedy stage, and (ii) recognizing efficiency-related commitments that tie merger approval to specific, verifiable outcomes through ongoing monitoring, particularly for long-term innovation and sustainability benefits that might otherwise be dismissed due to uncertainty.

C. Conclusion

As suggested by the Draghi Report, the Commission should increase the weight of efficiencies in merger control to avoid blocking or discouraging mergers in which significant efficiencies would outweigh any competitive harm. [6] If properly framed, the Revised Guidelines could support not only effective competition enforcement, but also enable efficiency-enhancing transactions that benefit consumers and the European economy as a whole, whilst maintaining the rigorous assessment standards necessary for sound merger control.

Interested in reading our full response? Please find it here.

[1] See our September 5 alert EU Merger Guideline Consultation – Our Views on Possible Reforms, available on the Cleary Antitrust Watch here.

[2] Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings, OJ L 24, 29.1.2004, pp. 1–22, Recital 29. The Non-Horizontal Merger Guidelines (para. 13) in turn recognize that vertical and conglomerate mergers provide substantial scope for significant efficiencies.

[3] EC v. CK Telecoms UK Investments (Case C-376/20 P) EU:C:2023:561, para. 71.

[4] See, e.g., Deutsche Börse/NYSE Euronext (Case COMP/M.6166), decision of February 1, 2012; Ineos/Solvay/JV (Case COMP/M.6905), decision of May 8, 2014; General Electric/Alstom (Thermal Power – Renewable Power & Grid Business) (Case COMP/M.7278), decision of September 8, 2015. See also Orange/Jazztel (Case COMP/M.7421), decision of May 19, 2015; and Hutchison 3G Italy/WIND/JV (Case COMP/M.7758), decision of September 1, 2016. See also Korsnäs/AD Cartonboard (Case COMP/M.4057), decision of May 12, 2006 and FedEx/TNT Express (Case COMP/M.7630), decision of January 8, 2016.

[5] See our October 8 alert EU Merger Guidelines Consultation – Our Views on Innovation and Other Dynamic Elements in Merger Control, and our October 16 alert EU Merger Guidelines Consultation – Our Views on Sustainability and Clean Technologies, available on the Cleary Antitrust Watch.

[6] Mario Draghi, The future of European competitiveness, Part B, September 9, 2024, p. 75.