Mergers & Acquisitions

Background

The German food retail sector has long faced intense scrutiny from the Federal Cartel Office (FCO). Following a major 2014 sector inquiry into buyer power, the regulator has consistently maintained a strict stance on industry dealmaking: blocking EDEKA’s proposed takeover of Kaiser’s Tengelmann in 2015 (a decision later overturned by ministerial permission in 2016), approving Rewe’s acquisition of Coop in 2016 only subject to divestments, and imposing stringent remedies on EDEKA and Kaufland’s acquisition of Real stores in 2020. EDEKA’s acquisition of 178 Tegut stores marks the latest chapter in these ongoing enforcement efforts. Germany’s Monopolies Commission, an advisory body to the government, criticized the FCO’s clearance as a “blow to competition,” targeting in particular the FCO’s finding of no collective dominance in the sales market despite the “Big Four”’s combined market share exceeding 90%. However, despite potential political influence, no formal process exists to overturn the FCO’s decision.

Around two years after the 11th Amendment of the German Act Against Restraints of Competition (ARC) came into force, the Federal Ministry of Economic Affairs and Energy (Ministry) published a proposal for a 12th revision of the law (the Draft Bill).[1] The Draft Bill seeks to implement the coalition agreement of the German government and is now subject to discussion and revisions in the legislative process. 

On May 25, 2026, the Dutch government prohibited Kyndryl’s proposed acquisition of Solvinity, a Dutch company that operates the digital identification platform (DigiD) used by citizens to access Dutch government services. The decision marks the first prohibition under the Dutch telecom foreign direct investment (FDI) regime. 

The European Commission (EC) has published a draft of its long-awaited revision of the Merger Guidelines (Draft Guidelines), combining the 2004 Horizontal Merger Guidelines and 2008 Non-Horizontal Merger Guidelines into a single document that is organized around different theories of harm and endeavors to achieve five principal objectives: (1) to take account of the Draghi Report’s call for more dynamic, forward-looking merger control; (2) to acknowledge the benefits of scale, resilience, innovation, and global competitiveness; (3) to reflect the evolution in EC practice over the past 20 years; (4) to tighten the rules for acquisitions by dominant companies; and (5) to signal a greater readiness to take positive account of efficiencies and other benefits. 

Principal Changes and Implications

The European Commission today published a draft of its long-awaited revision of the Merger Guidelines, combining the 2004 Horizontal Merger Guidelines and the 2008 Non-Horizontal Merger Guidelines into a single document that takes account of the Draghi Report’s call for more dynamic, forward-looking merger control, acknowledges the benefits of scale, resilience, innovation, and global competitiveness, and suggests a greater readiness to take positive account of efficiencies. The Draft Guidelines represent a significant evolution in the Commission’s approach to mergers, although their practical implications may take time to emerge. Announcing the Draft Guidelines, Commission President von der Leyen underlined the need “to better support companies to thrive, scale and innovate … so we can meet the realities of the fiercely competitive global economy and boost our competitiveness,” while Executive Vice President Ribera emphasized the “unchanged” purpose of “protecting strong, competitive markets without allowing an accumulation of power that can be abused.” A final text of the new Merger Guidelines is expected later this year, although the principles set out in the Draft Guidelines will likely shape the Commission’s assessment of ongoing cases.