Navigating the new EU Merger Guidelines

McDermott Will & Schulte and Brunswick Group recently hosted a special edition of the Global Antitrust Update webinar series examining the European Commission’s review of the EU Merger Guidelines, the most significant reassessment of the bloc’s merger control framework in more than two decades.

McDermott partners Stéphane Dionnet and Ryan Tisch were joined by John Davies, Senior Advisor at Brunswick Group for an in-depth conversation with Daniele Calisti, Head of Unit for Merger Policy and Case Support, European Commission

As the Commission considers how merger enforcement should evolve to reflect innovation, digital markets, resilience and competitiveness, our panel explored the key themes emerging from the review process and what they may mean for businesses planning strategic transactions. Below are the key takeaways from the discussion.

The guidelines reflect a changing economic and competitive landscape

The current merger guidelines were developed for a very different economic environment. Since their publication, markets have become increasingly digital, innovation has accelerated and geopolitical developments have brought greater attention to resilience, security of supply and industrial competitiveness.

Rather than fundamentally changing EU merger control, the draft guidelines seek to modernise the Commission’s analytical framework so that it better reflects how businesses compete today. Bringing the horizontal and non-horizontal guidance together into a single document also aims to provide a more coherent and consistent approach to assessing increasingly complex transactions.

Competitiveness is influencing the debate, but competition remains the foundation

The wider policy discussion around European competitiveness has inevitably shaped the development of the draft guidelines. Policymakers increasingly recognise the importance of scale, innovation and investment in strengthening Europe’s long-term competitiveness, particularly in strategically important sectors.

At the same time, the Commission has been clear that the objective is not to weaken competition law in pursuit of industrial policy. Instead, the draft seeks to balance effective competition with broader economic realities, recognising that well-structured transactions can support innovation, resilience and long-term growth without undermining competitive markets. As a result, the proposed reforms are best viewed as an evolution of existing merger control principles rather than a fundamental shift in regulatory philosophy.

The “theory of benefit” could change how transactions are prepared

One of the most significant developments is the introduction of a more structured framework for assessing the positive effects of mergers through a “theory of benefit”. Rather than treating efficiencies as arguments raised only after competition concerns have emerged, the Commission is encouraging businesses to identify and substantiate the benefits of a transaction from the outset.

This represents an important procedural shift. Businesses should expect greater emphasis on demonstrating how a transaction supports innovation, investment, resilience or other efficiencies alongside the traditional assessment of competitive effects. The Commission also indicated that presenting these arguments earlier should allow benefits to be investigated throughout the review process, rather than becoming a late-stage exercise during Phase II proceedings.

Commercial rationale and supporting evidence will become increasingly important

A recurring theme throughout the discussion was the importance of contemporaneous evidence. Businesses should be prepared to explain not only why a transaction makes commercial sense, but also how it delivers wider benefits that can be substantiated through internal documentation and business planning.

In practice, this is likely to place greater emphasis on:

• Clearly articulating the commercial rationale for the transaction from the earliest stages.
• Supporting efficiency and innovation claims with robust internal evidence rather than retrospective analysis.
• Ensuring that internal documents, board papers and investment materials consistently reflect the strategic objectives of the transaction.

The discussion also highlighted that credible commercial objectives and public benefits are not mutually exclusive. Transactions that generate value for shareholders may also create efficiencies, innovation and investment that ultimately benefit customers and the wider economy.

Businesses are looking for greater legal certainty

While there appears to be broad support for updating the merger framework, stakeholders have called for greater operational clarity in several areas. Particular attention has focused on the application of the proposed “innovation shield”, the treatment of minority shareholdings, dynamic competition and the practical operation of the narrowed safe harbours that remain.

In particular, the draft guidelines downgrade the existing 25% combined market share indicator from a presumption of compatibility to a merely “indicative” factor, and remove altogether the 30% threshold that previously applied to non-horizontal mergers.

The Commission acknowledged that these themes featured prominently throughout the consultation process and indicated that improving predictability remains a key objective. Further refinements are expected before the final guidelines are published, with additional practical guidance likely to be an important area of focus.

Early preparation will be critical

Beyond the legal framework itself, one of the clearest messages from the discussion was that successful merger reviews will increasingly depend on preparation well before a transaction is notified. Businesses should be considering how they gather evidence, develop transaction rationales and communicate the benefits of a deal from the earliest stages.

This applies not only to engagement with regulators but also to wider transaction planning. Consistent internal documentation, carefully considered communications and a well-developed commercial narrative are likely to become increasingly important as businesses seek to demonstrate the value created by a proposed transaction.

Looking ahead

The Commission is expected to publish the final EU Merger Guidelines before the end of the year following its review of consultation responses and supporting economic research. While aspects of the draft may continue to evolve, the overall direction of travel is becoming clear.

There is still an active debate about the extent to which the political context for certain mergers will be more relevant to the outcome of the decision-making process than in the past, particularly where scale considerations for European companies are involved. Merging parties should think about this context in describing their commercial narrative for the transaction and in advocating it.

Businesses contemplating strategic transactions should begin adapting their approach now. Developing a robust commercial rationale, identifying efficiencies early and integrating competition analysis into transaction planning from the outset will place organisations in the strongest position to navigate the evolving merger control landscape.

Access the full webinar recording.