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The EC's draft merger guidelines: Much to welcome, a little more needed to fully deliver
The EC's draft merger guidelines: Much to welcome, a little more needed to fully deliver
30 June 2026
Series
Blogs
30 June 2026
Authors: Bernd Meyring, Neil Hoolihan, William Leslie, Schweta Batohi, Elisha Kemp
We submitted Linklaters' formal response to the European Commission's public consultation on the draft merger guidelines. In this post, we highlight what the Commission got right and where there is room for improvement.
The draft guidelines mark a genuine and welcome step forward. They usefully consolidate the Commission's case law and enforcement practice, facilitating access to established precedent and providing greater transparency about the Commission's analytical approach to merger assessment. We particularly welcome the more explicit recognition that mergers can deliver pro-competitive benefits, including through greater scale, investment and innovation, and the stated ambition to give those benefits appropriate analytical weight. These are significant contributions to a merger policy in line with the Union’s needs and ambitions, but also with the initial objective of the EUMR to facilitate pro-competitive mergers by providing a one-stop-shop.
Our submission focused on identifying specific areas where the analytical framework could be clarified, made more symmetrical, and provide greater transparency for stakeholders. Three overarching themes running through our response are explored below.
The draft guidelines recognise competitiveness and scale as relevant considerations in the merger assessment. That is a welcome reflection of an important insight: in capital-intensive markets, achieving scale often determines whether an investment is viable at all. But the current framing ties pro-competitive scale recognition primarily to global markets. That is too narrow. What matters is whether scale creates the conditions for sufficient investment returns and effective competition post-merger, not the geographic scope of the market.
The final guidelines should confirm that scale benefits meeting those conditions can produce pro-competitive outcomes regardless of whether the relevant market is global, regional or national.
The draft guidelines commit to assessing pro-competitive benefits alongside theories of harm in the SIEC assessment. In principle, that means applying the same standards to benefit as to harm. In several areas, however, the current draft falls short. It appears to impose more demanding conditions on benefits than on harms, and that tips the scales against merging parties. Key examples of such asymmetries include:
Fixing these asymmetries would allow the Commission to deliver on its ambitions of assessing harm and benefit on equal terms.
The draft guidelines broaden the scope of merger review and extend the time horizon for assessing effects. That means the Commission will face harder judgment calls more often, weighing pro- and anti-competitive effects that point in different directions, and handling complex economic evidence. Judicial oversight in this area is inherently limited.
The final guidelines should explain how these complex assessments will be carried out and how potential pro- and anti-competitive effects will be balanced. Three things are needed:
Without this clarity, the flexibility in the draft guidelines risks undermining the rules-based character of EU merger control and making effective judicial scrutiny of merger decisions harder to achieve.
The draft guidelines set EU merger control on the path to modernisation. In many respects, they succeed. A little more work in the final text would close the gap between the stated goals and practical delivery.