2026 EU Draft Merger Guidelines

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.

The European Union’s draft Merger Guidelines give a central role to dynamic competition in merger review. Some scholars have criticized dynamic competition as an analytical tool that seems to always discourage government intervention, given how quickly and unexpectedly—or dynamically—innovation can remake a market. Nicolas Petit, Selcukhan Unekbas, Bowman Heiden, and Pierre Regibeau argue this critique ignores the several large cases in which regulators used dynamic competition to intervene in a merger.

The draft EU Merger Guidelines open merger analysis to non-economic considerations, including choice, supply chain resilience, and sustainability. However, they do not yet explain how these considerations will be paired with a traditional consumer welfare analysis of price and quantity. Maciej Bernatt and Simbarashe Tavuyanago look to South Africa to devise a “vulnerable consumer test” that can help bridge these economic and non-economic goals.

The European Union’s draft Merger Guidelines strengthen competition enforcement by acknowledging the potential harms of market concentration to society, including worker bargaining power and more vulnerable democratic institutions. However, Max von Thun and Claire Lavin argue that this progress is undermined by the introduction of a bias for scale and efficiency loopholes, which give large corporations more paths to complete a merger.

The European Union’s draft Merger Guidelines assign multiple meanings to several key terms, making competition enforcement less predictable. Anouk van der Veer, Max van Iersel, and Giorgio Monti explore the Guideline’s inconsistent use of three of these terms: competitiveness, dynamic, and capabilities.

The European Union’s draft Merger Guidelines consider import competition from foreign rivals to be a powerful competitive constraint on domestic producers, thus easing clearance for mergers between those domestic competitors. This stipulation ignores how a merger between domestic rivals can lead to subsequent trade barriers, writes Felix Montag.

Change is the core theme of the European Union’s draft Merger Guidelines, which seek to embed flexibility into merger assessment to account for the...

Although the European Union’s draft Merger Guidelines acknowledge that consolidation in digital platforms can harm the democratic process, they need to up their efforts to protect media competition and a quality public sphere. Vicky Robertson provides three steps to rectify this oversight.

The European Commission draft merger guidelines reorient merger analysis to focus on “capabilities”: how firms compete in current markets and pivot to future ones. However, the guidelines combine “capabilities” with what strategic management scholars call “resources.” This erroneous amalgamation oversimplifies merger assessment and risks inaccurate analysis, writes Selcukhan Unekbas.

The European Commission’s draft merger Guidelines adopt the advice of the Draghi report on European Union competitiveness to tailor competition law to promote goals that have traditionally fallen under industrial, trade, and national security policy. Conceptual ambiguity and the convergence of these policy areas risk undermining consumer welfare, entrenching incumbents, and opening regulation to business capture, write Annika Stöhr and Oliver Budzinski.