The EU’s constitutional framework and European Union Court of Justice’ case law have evolved since the European Union enacted the first Merger Guidelines in 2004. The revised Merger Guidelines should better engage with these developments and reflect the priority constitutional values and democracy now play in economic policy, writes Kati Cseres.
This article is part of a symposium on the European Commission’s draft Guidelines on the assessment of mergers under Council Regulation. The new merger guidelines mark their first systemic update since their first release in two parts in 2004 and 2008. You can read the rest of the contributions to the symposium as we publish them here. We encourage responses to our symposium, which can be submitted to promarket@chicagobooth.edu.
The European Commission’s review of the European Union Merger Guidelines follows two decades of far-reaching economic and technological changes. Digitalization, geopolitical fragmentation, the green transition, and renewed industrial policy have transformed markets while intensifying the concentration of economic, geopolitical, and infrastructural power. A small number of firms increasingly control critical infrastructure, data, digital ecosystems, and information flows, with implications that extend well beyond competition. Understandably, most commentary on the Merger Guidelines has focused primarily on refining analytical tools and adapting merger assessment to these new economic realities. Stakeholders have debated whether merger control should be relaxed to enable firms to achieve global scale or should continue to prioritize effective competition and innovation.
However, in an era marked by misinformation, democratic backsliding, and growing private concentrations of power, the current revision of the Merger Guidelines must also be evaluated against developments in the constitutional framework of the EU that have occurred over the past two decades, not just the profound economic and technological changes.
Since the current Guidelines were adopted in 2004, the Union’s constitutional framework has increasingly placed democracy, the rule of law, fundamental rights, and pluralism at the center of the EU legal order. At the same time, democratic backsliding and growing political intervention in markets have exposed new constitutional risks arising from both the accumulation of private power and the politicization of economic decision-making. Together, these developments demand a broader understanding of the objectives of EU merger control beyond its traditional economic function. We must ask what constitutional values EU merger control is to protect and how it could and should address the democratic decline that has coincided with increasing concentrations of corporate and political power.
The constitutional framework of EU merger control: twenty years later
Although the Commission acknowledges in the draft Guidelines that the primary objective of EU merger control remains the preservation of competitive markets, and its relevance for democratic societies, it does not explore the constitutional implications of that observation for merger assessment. Once merger control is explicitly linked to the EU’s democratic values, its objectives and theories of harm should also be interpreted in light of the Union’s broader constitutional framework.
That framework is based on Article 2 of the Treaty on European Union (TEU), which enshrines democracy and the rule of law as foundational values of the Union; the Charter of Fundamental Rights of the European Union, notably Article 11, which guarantees freedom of expression and information and requires respect for the freedom and pluralism of the media; and Article 167 of the Treaty on the Functioning of the European Union (TFEU), which requires the Union to take cultural diversity into account in all its actions. This constitutional reading is further reinforced by the Court of Justice of the European Union (CJEU)’s case law. Together, these provisions situate merger control within a constitutional understanding of open and competitive markets as an important feature of liberal democracies.
Since the current Merger Guidelines were adopted in 2004, the legal and constitutional framework of the Union has changed significantly. The entry into force of the Treaty of Lisbon and Charter of Fundamental Rights in the late aughts and the growing constitutional significance of democracy, the rule of law, and fundamental rights have profoundly altered the normative context in which EU competition law operates.
The Treaty of Lisbon transformed the direct constitutional context against which the European Union Merger Regulation (EUMR) must be interpreted. While Recital 23 of the EUMR still reflects the pre-Lisbon Treaty architecture by referring to Article 2 of the Treaty Establishing the European Community (EC) and Article 2 of the TEU, today, Article 2 of the TEU defines the Union’s foundational values, including democracy, the rule of law, and fundamental rights, while Article 3 of the TEU sets out its objectives.
The current revision of the EU Merger Guidelines reflects the growing recognition that merger control also plays an important constitutional role in society. They acknowledge that protecting competition also contributes to a “balance of power that is essential to democratic societies.” This constitutional reading is supported by case law in Google Android, where the General Court recognized that protecting consumers’ access to multiple online sources is not only consistent with competition on the merits but is also “necessary in order to ensure plurality in a democratic society.”
Article 2 TEU has been characterized as the constitutional bedrock of European society.
Over the past years, Article 2 of the TEU has been significantly strengthened in the EU courts’ case law. First, in its Sped-Pro judgment, the General Court confirmed that compliance with the values enshrined in Article 2 is relevant to the enforcement of Articles 101 and 102 of the TFEU. More recently, in Commission v Hungary, the Court of Justice explicitly recognized that the values enshrined in Article 2 of the TEU are legally enforceable obligations binding on member states. In this case, the Court held that restricting access to information about diverse gender identities and sexual orientations violates Article 11 of the Charter by undermining freedom of expression and information and, more broadly, the conditions for democratic civic life. It further rejected Hungary’s reliance on national identity and public morality, affirming that member states cannot invoke domestic sovereignty to circumvent the EU’s fundamental rights and values, of which an open information environment and non-discrimination are essential structural components.
In this way, the judgment reinforces the Union’s identity as a legal order founded not only on economic integration, but also on democracy, equality, human dignity, and fundamental rights, and signals a more assertive judicial approach to protect the rule of law. By affirming that discriminatory restrictions on expression and limitations on access to information may violate the Union’s foundational values, the Court “reinforces the idea that democracy and fundamental rights related to information are inseparable from the functioning of the European legal order.”
Read in light of the Court’s interpretation of Article 2 of the TEU in Commission v Hungary, these references acquire a broader constitutional significance for EU merger control. The draft Guidelines’ current recognition in paragraph 9 that merger control can directly support media pluralism by safeguarding the diversity and plurality of information sources available to EU citizens should be understood as giving concrete expression to the Union’s constitutional commitment to democracy, pluralism, and fundamental rights.
If, as the Court held in Commission v Hungary, democracy, pluralism, freedom of expression, and access to information are legally enforceable values underpinning the Union’s constitutional order, protecting media pluralism through EU merger control cannot be regarded merely as an ancillary public policy objective or an additional factor in merger assessment. Rather, it should be understood as part of the constitutional function of merger control: preventing excessive concentrations of economic and communicative power and safeguarding the conditions necessary for a pluralistic public sphere.
Constitutional limits and media pluralism
This constitutional reading of merger control is, however, subject to important limitations due to the allocation of competences between the EU and its member states. (Under the principle of conferral, the EU may act only within the competences conferred on it by the Treaties, while all remaining powers remain with the member states.) Despite the growing constitutional significance of democracy, the rule of law, and pluralism in EU law, the Union’s competences in the field of media regulation remain limited. According to Article 167(5) TFEU, cultural diversity remains the responsibility of the member states, and no general EU competence exists to regulate media freedom or media pluralism. This allocation of competences is reflected in Article 21(4) of the EUMR, which recognizes that, while the Commission has exclusive jurisdiction over mergers with an EU dimension, member states may adopt measures to protect legitimate interests, including media pluralism.
The European Media Freedom Act (EMFA), adopted in 2024, likewise reflects both the potential and the limits of the Union’s competences. While it represents the Union’s most comprehensive framework for safeguarding media freedom, editorial independence, and media pluralism on the basis of the internal market, it does not confer on the Commission a general power to carry out substantive media plurality assessments. Instead, it establishes a system of monitoring, cooperation, and coordination based on the Union’s internal market competence. The Commission is specifically entrusted with monitoring the functioning of the internal market for media services, while responsibility for substantive assessments of media pluralism remains primarily with the member states.
From national oversight to European governance
This allocation of competences gives rise to a broader constitutional challenge. Although the EU’s competence to regulate media pluralism remains limited, the threats to media freedom and pluralism are increasingly transnational. Cross-border media ownership, digital platforms, foreign information manipulation and interference, and the concentration of economic and communicative power ever more transcend national borders, yet they continue to be assessed predominantly through national regulatory frameworks. This creates a growing mismatch between the integrated European media environment and the largely state-centered architecture of monitoring and enforcement.
The EMFA partially addresses this governance gap by recognizing that media freedom and pluralism have an internal market dimension. In particular, Article 26 establishes an EU framework for monitoring media markets, media concentration, foreign information manipulation and interference, online platforms, editorial independence, and state advertising. Without conferring a general competence on the Commission to assess media pluralism, the EMFA recognizes that safeguarding media freedom and pluralism increasingly requires a European perspective alongside national oversight. It therefore establishes a framework for monitoring and coordinating risks affecting the internal market for media services, and points towards a more integrated European capacity to monitor risks affecting the European public sphere as a whole.
The constitutional way forward
Against this background, the revised Merger Guidelines must give fuller expression to the constitutional values that already inform the exercise of those competences. First, the Guidelines should explicitly recognize that concentrations affecting media and digital information markets raise not only questions of market power, but also of democratic resilience, communicative power, and the conditions necessary for a pluralistic democratic society. In this respect, they already provide an important starting point by identifying media and cultural diversity as relevant parameters in the competitive assessment of certain transactions. The Commission’s decisional practice has likewise acknowledged that preserving consumer choice is closely linked to safeguarding cultural diversity and media pluralism. National competition authorities have already developed such constitutionally sensitive approaches to merger assessment, as illustrated by the Dutch Authority for Consumers and Markets’ decision in the DPG Media/RTL Nederland merger. This decision formally acknowledged media pluralism as a parameter of competition and used it to outline a potential theory of harm regarding reduced (quality) diversity, diminished journalistic investment, and loss of independent news voices.
Second, the revised Merger Guidelines should be more closely aligned with the framework and institutional setting of the EMFA, enabling a more coherent assessment of media pluralism within EU merger control. In particular, the Commission should draw on the expertise and support of the European Board for Media Services, which assists the Commission in developing guidance on the assessment of media market concentration and safeguards the consistent application of the EMFA rules. Such coordination would enable merger control to give better expression to the EU’s constitutional values while fully respecting the Treaties’ allocation of competences. In doing so, the revised Merger Guidelines could reflect the constitutional function of EU merger control: safeguarding not only competitive markets, but also the pluralistic democratic conditions on which those markets ultimately depend.
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Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
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