After much speculation, the European Commission’s draft new Merger Guidelines are finally there for everyone to read and comment on. The Commission opened a public consultation on 30 April 2026. Any interested stakeholder can contribute to this consultation by replying to the questionnaire available on the Commission’s website by 26 June 2026.

Over the last few months, there has been a lot of speculation on the path the Commission would take with these draft new Guidelines. Some predicted that that the new rules would amount to a carte blanche for creating ‘European Champions’. Others envisioned a framework aimed at rigorous enforcement with a focus purely on consumer welfare and choice, with the strengthening of European competitiveness to be achieved primarily through the completion of the internal market. Across Europe, this debate is framed by a broader concern: how can the EU sustain prosperity and investment in the face of American scale and Chinese state‑backed industrial strength, without sacrificing the fairness, legal certainty and rule‑based order that underpin its social market economy and the success of the internal market?

So which path did the Commission eventually enter? In summary: a bit of both, actually. On the one hand, the draft Guidelines clearly attach much greater value to positive effects of mergers on innovation, investment, security and resilience that may outweigh the negative effects on competition and that support and boost the EU's global competitiveness. On the other hand, the new Guidelines also introduce a string of novel theories of harm which, although partially tested in previous cases, are (almost) absent from the current Guidelines.

Says Commissioner Ribera in The Economist: “Today, resilience matters more. Innovation cycles are faster. Clean technologies require larger and longer-term investments. Security concerns are increasingly shaping economic policy. A merger that once would have been judged mainly on its short-term price effects must now be assessed also in terms of how customers are affected by its impact on European innovation, investment and supply security over the long term.”

Innovation, security and resilience are the magic words...

Notwithstanding these ‘modern’ theories of harm – which we will address in more detail below - the draft does provide a much broader perspective for the assessment of proposed mergers and acquisitions. In particular, the Commission explicitly recognises that mergers may increase procompetitive scale while maintaining effective competition in the internal market. This may allow firms to reach the necessary size to compete in global markets. The Commission now explicitly recognises that this can be procompetitive and have a positive impact on the EU economy and its competitiveness, including on innovation and investment. The Commission explicitly welcomes mergers that promote:

  • innovation and technological progress (introducing an ‘Innovation Shield' for unproblematic mergers involving small innovative companies, including start-ups and R&D projects);
  • market integration and expansion, and that help in achieving the necessary scale to compete globally;
  • security and resilience (e.g. where it comes to critical infrastructure and inputs and defensive readiness); and
  • sustainability (acknowledging that clean technologies may require larger and longer-term investments).

However, the Commission still requires the parties to demonstrate that such effects are a direct result of the merger or acquisition. In that context, early engagement by the merging parties on efficiencies during the merger review process, including at the pre‑notification stage, is expressly welcomed, as it can facilitate a timely discussion of the efficiency claims and the supporting evidence, thereby enabling the Commission to properly take the alleged theory of benefit into account.

…but enforcement may also become stricter in other areas

Still, the above relaxations of enforcement policy are only one part of the story that these draft Guidelines tell us. In some areas, the Commission’s enforcement policy may also become stricter:

  • Focus on dynamic and nascent competition: the draft Guidelines introduce dedicated sections on loss of innovation and of potential competition, providing guidance on the assessment of dynamic harm and ‘killer acquisitions'.
  • The draft Guidelines introduce an entire section to the potential negative effects on competition that may arise if a firm acquires a very broad portfolio of non-competing brands (a theory tested by the Commission in its assessment of the Mars/Kellanova merger).
  • The draft Guidelines acknowledge that algorithms/AI may ease tacit collusion between rivals, and address (digital) ecosystems and data as sources of market power.
  • More attention for potential negative effects on minority shareholdings and structural links. The draft new Guidelines explicitly address non-controlling shareholdings and overlapping ownership (common investors). Such structural links are now recognised as potentially reducing competitive pressure post-merger (by aligning financial interests or sharing sensitive information).
  • More attention to potential negative effects on purchasing markets (including labour markets). Buyer power is flagged as both a potential harm as well as a potential defense (in case it offsets negative effects of the merger on the supply side).
  • The new draft Guidelines also devote an entire section to measures that EU Member States may take to prevent or regulate mergers in order to protect legitimate public interests including:
    • public security;
    • media plurality (also in relation to the enforcement of the European Media Freedoms Act by national authorities);
    • prudential rules (to ensure financial stability); 
    • other public interests that may be considered legitimate. including the safeguard of the provision of a vital service (e.g. water distribution) and consumer protection.

Conclusion

Ultimately, the draft Merger Guidelines reflect a balancing act: becoming more supportive of European companies scaling up in global markets, while at the same time ensuring that European businesses and consumers continue to benefit from effective competition within the internal market.  

Contact

If you have any questions or would like to explore the implications of these developments for your business, please feel free to get in touch with one of the advisers mentioned below.